On November 5, 2018, American University Washington College of Law and the International Law Student Association (“ILSA”) hosted the International Law Conference on Reparation for Individuals for Violation of International Human Rights Law and International Humanitarian Law. The conference took a closer look at reparations and the individual in the human rights context, as opposed to a states-based reparation structure.
The conference opened with Medea Jones, the ILSA Fall 2018 Conference Chair, welcoming the attendees and introducing Dean Emeritus Claudio Grossman. Dean Grossman opened the conference by thanking the ILSA representatives, including Medea Jones and Sarah Fraenkel and commending the experts and the international human rights and humanitarian law communities for keeping the discussion regarding reparations alive. Dean Grossman explained that as individuals are continually denied, discriminated, and persecuted, reparations to individuals become vitally important, signifying that violations of human rights will not be accepted under international law. Dean Grossman ended his remarks by thanking the speakers of the panels for traveling to attend the conference, most notably Patrícia Galvão Teles and Yacouba Cissé, of the International Law Commission, Paulo Abrão of the Inter-American Commission on Human Rights, and Mario Coriolana, the Public Defender of Argentina.
The first panel of the day was on the general principles of reparation in international law. Professor Claudia Martin moderated the panel and Paulo Abrão, Patrícia Galvão Teles, and AU WCL Professor Diane Orentlicher, the former UN Independent Expert of Combating Impunity, briefly spoke regarding the principle of reparations in international law before answering a series of questions and later answering questions moderated by Professor Claudia Martin.
Paulo Abrão discussed the development and discourse regarding reparations in the Inter-American System. He showcased key cases, highlighting the involvement of victims in developing the system. Particularly, the measures of satisfaction of those who receive reparations and non-repetition of similar human rights violation are particularly salient principles. Additionally, provisions of free and adequate health and psychiatric care for victims have been emphasized in recent years. Abrão also highlighted three key elements for reparations to individuals: (1) the holistic conception of transitional justice and intersectionality; (2) the understanding of the right of the victim vis-à-vis the duty of the state; and (3) access to justice for those who face vulnerability or exclusion.
Following Abrão, Patricia Galvão Teles provided a macro picture of reparations within the International Law Commission. She noted the International Law Commission recognized that there may be situations where reparations are due not only to individuals, but also to the states, the international community, and other entities. Galvão Teles also mentioned that the International Court of Justice (ICJ) has used a legal fiction, equating injury to the individual with injury to the state, to keep state-based reparations in place. Galvão Teles highlighted three cases in the ICJ that showcase the development of reparations for violation of human rights: (1) the Wall Advisory Opinion (2004) initially recognized the right to individual reparations for violations of human rights; (2) the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (2005) recognized that unlawful acts committed during armed conflict constituted violations of human rights and resulted in injuries to the state and persons on its territory; (3) the Diallo case (2007) on diplomatic protections where the court awarded reparations for material and moral damages for the second time in history.
Professor Diane Orentlicher gave a more narrow analysis based on her work with the UN as the UN Expert on Combating Impunity and the Special Advisor to the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe. Professor Orentlicher shared that there was a need for conceptual clarification of norms with respect to whether it is appropriate to treat non-recurrence of human rights violation as a distinct obligation in their own right, or whether it is better to subsume the topic of non-repetition under the category of reparations. She also emphasized that the participation of victims in designing reparation programs, especially with mass atrocities, was critically important to ensure that the marginalization of victims is not perpetuated and highlighted the importance of the broad participation of women in the development of reparation programs.
Each of the three speakers brought to light the importance of continuously discussing the establishment of a framework for reparations with respect to individual victims of human rights violations. They encouraged the inclusion of victim involvement in future discussions for the development of reparations, the importance of incentivizing non-repetition as a part of reparations programs and transitional justice, and the connection between the injury to the individual and the injury to the state.