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Programme Coordinator,
International Rehabilitation Council for Torture Victims
T his article surveys issues related to the pursuit of
reparation by victims of torture or their family members. What is
the legal right to reparation, and how successfully has it been
implemented in different countries? How does the pursuit of
reparation relate to the needs of torture victims themselves, and
what will be the likely consequences if it is denied in part or
in whole? Are some forms of reparation fundamental for the
successful recovery and reintegration of the torture victim, such
that the denial of the right will prolong or reinforce the
victim's sense of powerlessness and isolation? As human rights
advocates, can we ever permit ourselves to express support for a
national process of reconciliation and reparation for victims of
torture that does not meet in full those rights guaranteed by
international law? The article contends that national authorities
committed to implementing the right to reparation should take as
a starting point the needs and wishes of victims themselves. The
forms of reparation recognised at international law are many and
varied. It is unlikely that all victims will find the same form
of reparation beneficial or desirable. National authorities
should therefore facilitate access to a variety of reparations,
including judicial, compensatory, rehabilitative, restitutive,
declaratory and commemorative forms.
Even in those societies where reparation schemes are provided
for violations committed by former regimes, there can be strong
political disincentives to the adoption of a victim-oriented
approach. There are many ingrained social prejudices against
victims, even in cases where the facts of the violation and the
suffering caused are beyond dispute. Before laws or practices can
be reformed, it is sometimes necessary to confront attitudes that
may exist among legislators or administrators that reflect the
prejudices or ignorance of the wider community. This is
particularly so in the case of torture, a violation committed in
secret and in spite of official denial, and for which many
victims continue to suffer in silence. The author is neither a
health professional nor a practicing lawyer, but hopes that the
presentation of this subject in a multidisciplinary way will
inspire new voices, in particular Asian voices, to take up this
issue for further discussion.
The international legal framework
The right to reparation for victims of a wrongful act is a
well-established principle of international law. [1] This obligation also applies in respect to
international human rights and humanitarian law. Since World War
Two, the obligation to provide reparation to victims of human
rights violations has been reiterated in a large number of
treaties and declarations, many of which have by now been
ratified by a majority of UN Member States. As regards the crime
of torture, the right to reparation is grounded in articles 2.3
& 7 of the International Covenant on Civil and Political
Rights, article 39 of the Convention on the Rights of the Child,
and in article 14 of the Convention Against Torture (CAT).
Article 14 guarantees the right of torture victims to obtain
reparation, including redress, fair and adequate compensation and
the means for as full rehabilitation as possible. The CAT does
not define "redress", "compensation" or
"rehabilitation"; neither does it contain a strict
definition of who is considered to be a "victim".
However, two UN documents that have attempted to do so are the
Declaration of Basic Principles of Justice for Victims of Crimes
and Abuse of Power (the Victims Declaration)— adopted by the
UN General Assembly at its 40th session in 1985 (UN GA Res. 40/
34)— and the UN draft Basic Principles and Guidelines on the
Right to a Remedy and Reparation. [2]
The Victims Declaration and the draft Basic Principles are
indicative of a general trend in human rights reporting over the
past 30 years, which has been to move away from treatment of
violations as abstract phenomena, towards an increasing emphasis
on the subjects (both victims and perpetrators) of the
violations. On the one hand is the victim, whose rights have been
violated, who continues to suffer the consequences of the
wrongful act, and whose right to obtain full reparation should be
facilitated by the state. On the other is the perpetrator, who
must be brought to justice, in part to afford reparation to the
victim, but also to satisfy States Parties' obligations under the
CAT to investigate, prosecute and punish.
The Preamble to the draft Basic Principles notes that by
recognizing the right of victims to benefit from remedies and
reparation, the international community keeps faith and human
solidarity with victims, survivors and future human generations,
and reaffirms the international legal principles of
accountability, justice and the rule of law. Further, "By
adopting a victim-orientated point of departure, the community,
at local, national and international levels, affirms its national
solidarity and compassion with victims of violations… as
well as with humanity at large."
Mental and psychosocial consequences of torture
Torture, the deliberate infliction of severe pain by one human
being against another, leaves particular kinds of mental and
psychological scars. Torture victims commonly report feelings of
fear, guilt, shame, disillusionment, insecurity and humiliation. [3] These symptoms, either alone or in
combination, are also common in other psychological disorders
that do not have their origins in violations of human rights.
What is unique about torture and other forms of organized
violence, however, is that the trauma they induce includes the
immoral act of a perpetrator. This moral dimension continues to
affect the victims, perpetrators and entire society until steps
have been taken to restore justice. [4]
Attitudes towards victims
As discussed, all states are obliged to provide reparation to
victims of torture. A precondition for successful reparation is
that those responsible for making and interpreting laws and
policies within the national administration are empathetic to the
rights and needs of victims. Yet there exists in many societies
deep-seated prejudices towards the weak or powerless, and this is
particularly so in the case of persons who claim to be
psychologically damaged and seek compensation or support. [5] Even where structures for reparation
have been put into place by the state, the granting of reparation
may be compromised by the way in which claims assessors perceive
trauma and suffering. Danieli describes pervasive societal
reactions to Holocaust survivors after the liberation as
comprising obtuseness, indifference, avoidance, repression and
denial. [6] The accounts of the
survivors were too horrifying for many people to listen to or
believe. Victims were faced with the pervasively held myth that
they had actively or passively consented to their own suffering
or that they had themselves committed crimes in order to survive.
As has been the experience of victims in other periods and other
regions, they were also told that everyone had suffered, that it
was time to forgive and forget and to get on with their lives. [7]
The effect of these attitudes, if unchecked, can be to
reinforce victims' silence and impede healing and reintegration;
what Rojas has called 'frozen mourning'.
[8] Many studies have documented the transmission of the
psychological effects of torture to the second and even third
generation. In such cases we can concur with William Faulkner
that, 'The past is never dead. It's not even past.'
Reparation as 'therapy'
A number of commentators believe that the pursuit of
reparation has a therapeutic benefit for the victim, in addition—
or as a supplement— to more targeted forms of medical or
psychosocial treatment and support. Carmichael et al. take the
view that seeking reparation is an important part of the
rehabilitation process, both for the individual and for the
society in which the torture occurred. [9]
Health professionals also prefer a holistic approach to
rehabilitation, including consideration and treatment of the
immediate family of the victim as well as community-based
programs targeting the general community. Torture victims come,
more often than not, from the most vulnerable groups in society
and need outside assistance. Where resources permit,
rehabilitation programs offer a variety of services to survivors,
both social and legal, with a view to reintegrating the person to
the fullest extent possible. It has been said that reparation is
both a process and a result. The pursuit of reparation can be
empowering for a victim, allowing them to overcome feelings of
isolation and pain in a public process closely linked to the
disclosure of events and the naming of the guilty. [10]
The question arises as to whether some forms of reparation may
be more therapeutically beneficial than others. Several
commentators have considered the relative merits of civil and
criminal proceedings. Gordon has argued that victims have a more
active role in the initiation and resolution of civil proceedings
than they would have in a criminal proceeding, and that
presenting and negotiating a claim can reinforce many of the
elements addressed in a formal rehabilitation process. [11] McFarlane, on the other hand,
warns of potential problems in both the civil and criminal
justice systems. [12] Many victims
perceive legal processes to lack empathy, a problem perhaps most
prevalent in civil litigation, where court officials and
advocates are unused to dealing with victims of torture or other
violent crime.
Roht-Arriaza and Rojas both emphasize that procedures serving
to promote truth and justice are essential to successful
psychological closure. [13]
Traumatised people have an instinctive need to tell their stories
and have their experiences validated. Silence and deception are
common in countries where torture has taken place; victims
typically suffer in silence and their plight is both unknown and
unacknowledged by the community. Public truth– telling must
be undertaken before real healing can occur. Allan & Allan go
further, to say that survivors must be given the opportunity to
meet the people who abused them if they wish to do so. [14] This can help to create empathy
between survivors and perpetrators, an aspect of restorative
justice that may be even more important than the prosecution of
perpetrators. However, there is a potential conflict here between
the needs and wishes of the individual victim and the (perceived)
needs of the society, discussed further below.
Consequences of failure to obtain reparation
Could the unsuccessful pursuit of a remedy leave a person in a
worse position, mentally and emotionally, than if they had done
nothing? This question arises in particular when seeking judicial
or quasi-judicial remedies. In both cases, the victim is likely
to be required to recount the violation on a number of occasions,
placing them at risk of further trauma. No research appears to
have been done on this issue to date. What seems to be important,
bearing in mind that all legal processes involve an element of
calculated risk, is for helpers, legal advisers or counselors to
be particularly responsive to their client's wishes. Victims of
torture or other serious human rights abuses should not be
encouraged to pursue a remedy if they no longer wish to do so.
The conviction of the helper that the need to obtain (formal)
justice is paramount may in fact not conform to the victim's own
needs and wishes. Another area of concern arises when the state
refuses to provide the form of reparation sought by the victim.
There is very strong support, among both health and legal
professionals, for the view that other forms of reparation will
be inadequate if the perpetrators of violations are not brought
to justice. Sveaass & Lavik believe that to grant amnesty and
permit impunity is to perpetuate political violence. [15] In these circumstances the
experiences of individual victims are denied or invalidated, and
psychological reactions of worthlessness or disempowerment, and
even cognitive distortions, may follow. Many others, including
Kordan, Rojas and Danieli share this view, which is also in
accordance with State Party obligations under all relevant human
rights treaties, not least of all the CAT. Van Boven has
emphasized that if state authorities fail to investigate the
facts and establish criminal responsibility, it may prove
impossible for victims or their relatives to seek and receive
redress and reparation.
In the case of truth commissions, which primarily serve
collective goals of national reconciliation rather than
individual goals of redress, the role played by the victim can be
particularly problematic. He or she is expected to recount the
violation suffered with a view to creating a public record of the
event, and while this truth– telling may have a reparative
value for many victims, it may also be traumatic. Nevertheless, a
small number of dissenting views do exist, both within the health
profession and the general human rights community. Allan &
Allan believe that the South African Truth and Reconciliation
Commission was relatively successful as a therapeutic tool,
despite the amnesties granted and the fact that it primarily
addressed collective goals rather than individual needs or
wishes. [16] Cobban, however, is
scathingly critical of the International Criminal Tribunal for
Rwanda (ICTR) as a means for delivering justice to victims of the
Rwandan genocide. [17] Seven years
after its establishment, the ICTR had delivered just nine
judgements, despite a staff of over 800 and an annual budget of
around US$ 90 million. Even taking into account those
prosecutions carried out by Rwandan courts, the number of
cases processed each year has been around 1500– 2000; just a
fraction of the over 125,000 detained genocide suspects. Cobban
believes that the imposition of an exclusively criminal justice
solution on the Rwandan people has denied them the benefit of
restorative justice that has been used with success in South
Africa and Mozambique, elements of which would have been better
suited to promoting social stability and long-term
reconciliation.
Gaps between national reparation schemes and rights at
international law
Can human rights advocates ever express support for reparation
schemes that exclude one or more of the elements of reparation
guaranteed at international law? Can we afford to endorse the
kinds of political compromises that lie behind the establishment
of truth commissions or national compensation schemes side by
side with de jure or de facto amnesties for perpetrators of
torture? These are very difficult questions. On the one hand, we
know that impunity will prolong, or in some cases deepen, the
mental scars borne by the victim or by members of their families.
On the other, would it have been possible to achieve a peaceful
democratic transition in South Africa or El Salvador, for
instance, if the new governments had instigated a policy of
prosecuting all perpetrators, rather than granting amnesties?
Morocco offers an interesting example, in that a means for
addressing past repression— including the establishment of
an arbitration tribunal to assess reparation claims— was
initiated under an ongoing regime. As at June 2002, the tribunal
there had already awarded US$ 59 million in compensation to over
800 claimants— victims of arbitrary detention and relatives
of disappeared persons. It has been criticized on several
grounds: its mandate does not extend to cases of torture; very
little information has been made available to relatives about the
fate of disappeared persons; and, most significantly, the
tribunal is not mandated to investigate or prosecute those
responsible for violations. On the contrary, a decree granting a
general amnesty to all former violators has been approved, but
has not yet entered into force. In their defense, the Moroccan
authorities say that what has been achieved in Morocco to date is
without precedent in the Arab world, and for that matter, in
several European countries with similar histories of political
repression, arbitrary detention and use of torture.
One element often overlooked is the right to rehabilitation
and reintegration. In those few countries such as Morocco or
Bulgaria where reparation schemes have been established for
former victims of torture, the emphasis has tended to be on
judicial or compensatory procedures, rather than social or
medical ones. Rehabilitation and reintegration is often seen as
being the responsibility of civil society organizations, or
alternatively, an issue that can be addressed by the existing
public health system without any specific state involvement. Yet
in order for the right to rehabilitation to be realistic there
has to be a corresponding duty on the state to ensure that the
necessary knowledge and facilities are present in the country. To
this end, states should be urged to promote acquisition of the
appropriate knowledge and skills within the relevant legal,
medical, psychological and social professions, and to support the
establishment of treatment facilities and services.
Conclusion
Despite a plethora of international standards on reparation,
the needs and wishes of the victim continue to be treated with
secondary importance by many national authorities. Truth
commissions primarily seek to address collective goals rather
than to respond to individual needs. Even reparation programs,
where established, have been limited in their scope, preferring
to balance a complex set of economic, social and political
considerations. Looking at a variety of countries in which
governments have attempted to address past repression and provide
reparation to victims of torture and members of their families,
it seems that there is an unavoidable tension between political
considerations and the requirements of international law.
More thought needs to be given to ways in which criminal and
restorative justice can be combined without compromising the
right of victims to reparations. There is potential for enhanced
dialogue between health and legal professionals, human rights
advocates, and victims' support groups, drawn together by the
common conviction that the perspective of the victim is
paramount.
End Notes
1 Chorzow Factory Case (Germany v Poland), 1928,
PCIJ, ser. A, no. 17, p. 47. [Back to content]
2 The full title of this document is the draft
Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Violations of International Human
Rights and Humanitarian Law. The current draft text of the
Guidelines is located in the final report of the Special
Rapporteur, Professor M Cherif Bassiouni, to the 56th session of
the UN Commission on Human Rights, E/ CN. 4/ 2000/ 62. [Back to content]
3 Libby T Arcel et al., 'Reparation for
victims of torture: Some definitions and questions', Torture, vol.
10, no. 3, 2000, pp. 89– 91. [Back to content]
4 Nora Sveaass & Nils Johan Lavik,
'Psychological aspects of human rights violations: The importance
of justice and reconciliation', Nordic Journal of
International Law, vol. 69, no. 1, 2000, pp. 35-52. [Back to content]
5 Alexander McFarlane, 'Attitudes to victims:
Issues for medicine, the law and society', in International
Victimology: Selected Papers from the 8th International
Symposium, Chris Sumner et al. (eds), Australian Institute of
Criminology, Canberra, 1996, pp. 259– 75. [Back
to content]
6 Yael Danieli, 'Preliminary reflections from
a psychological perspective', in Seminar on the right to
restitution, compensation and rehabilitation for victims of gross
violations of human rights and fundamental freedoms, Theo van
Boven et. al (eds), SIM Special No. 12, Utrecht University,
Utrecht, 1992, pp. 196– 213. [Back to content]
7 For instance, subsequent to the military
dictatorship in Argentina. Diana Kordon, 'Impunity's
psychological effects: Its ethical consequences', Journal of
Medical Ethics, vol. 17, supplement, 1991, pp. 29-32. [Back to content]
8 Paz Rojas Baeza, 'Mental health disturbances
caused by the absence of truth and justice', paper delivered at
the 7th International Conference for Health and Human Rights,
organised by the International Society for Health and Human
Rights, Cavtat, Croatia, 2001. [Back to content]
9 Keith Carmichael, Fiona McKay & Bill
Dishington, 'The need for REDRESS: Why seek a remedy? Reparation
as rehabilitation', Torture, vol. 6, no. 1, 1996, pp. 7-9
[Back to content]
10 For a discussion, see Nora Sveaass, 'The
psychological effects of impunity', in 'Pain and survival':
Human rights violations and health, N J Navik et al. (eds),
Scandinavian University Press, Oslo, 1994, pp. 211-20. [Back to content]
11 Neve Gordon, 'Compensation suits as an
instrument in the rehabilitation of tortured people', in Torture:
Human rights, medical ethics and the case of Israel, Neve
Gordon & Ruchama Marton (eds), Zed Books, London, 1995. [Back to content]
12 McFarlane, 'Attitudes to victims'. [Back to content]
13 Naomi Roht-Arriaza (ed.), Impunity and
human rights in international law and practice, Oxford
University Press, New York, 1995. Rojas, 'Mental health
disturbances caused by the absence of truth and justice'. [Back to content]
14 Alfred Allan & Marietjie M. Allan,
'The South African Truth and Reconciliation Commission as a
therapeutic tool', Behavioral Sciences and the Law, vol.
18, no. 4, 2000, pp. 459– 77. [Back to
content]
15 Sveaass & Lavik, 'Psychological
aspects of human rights violations'. [Back to
content]
16 Allan & Allan, 'The South African
Truth and Reconciliation Commission as a therapeutic tool'. [Back to content]
17 Helena Cobban, 'The legacies of collective
violence: The Rwandan genocide and the limits of the law', Boston
Review, April/ May 2002, [http:// bostonreview. mit. edu/
BR27.2/ cobban. html]. See also a response to Cobban's article,
Kenneth Roth and Alison DesForges, 'Justice or therapy? ', Human
Rights Watch Editorials, [http://www.hrw.org/editorials/2002/ictr0724.htm];
and, Helena Cobban, 'Helena Cobban replies', Boston Review, Summer
2002, [http://bostonreview.mit.edu/BR27.3/cobbanreplies.html].
[Back to content]
Posted on 2003-01-17
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