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Reaching for Justice the Right to Reparation in the African Human Rights System

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Reaching for Justice the Right to Reparation in the African Human Rights System Reaching for Justice The Right to Reparation in the African Human Rights System October 2013 Contents I. Introduction and Context ......................................................................................... 3 I.1 Purpose of the Report .................................................................................................... 5 I.2 Structure of the Report .................................................................................................. 7 II. Victims' Right to Reparation under International Law .............................................. 8 II.1 Terminology: Remedy – Reparation - Redress .............................................................. 8 II.2 Why is Reparation for Human Rights Violations Important? ...................................... 10 II.3 Right to Reparation under International Law ............................................................. 11 II.4 The right to reparation in the ‘African Human Rights Framework’ ............................ 14 III. Role of International and Regional Human Rights Mechanisms in Strengthening Victims’ Access to Reparation ................................................................................ 17 III.1 Reparation mandates of regional human rights mechanisms in Africa ..................... 18 III.2 Relationship between the African Court and the African Commission ..................... 20 IV. A Complainant’s Perspective of Claiming Reparation before the African Commission: Challenges and Opportunities ................................................................................ 21 IV.1 Access, Information and Outreach ............................................................................ 21 IV.2 Submitting a Claim for Reparation regarding a Violation of the African Charter ...... 22 IV.3 Oral Hearings .............................................................................................................. 25 IV.4 State Failure to Implement the Commission’s Recommendations ........................... 26 V. Scope of the Right to Reparation: Who is Entitled to Reparation? .......................... 29 V.1 Direct and Indirect Victims .......................................................................................... 30 V.2 Successors ................................................................................................................... 35 V.3 Dependants ................................................................................................................. 36 V.4 Groups of Victims ........................................................................................................ 36 VI. Principles Governing an Award of Reparation ........................................................ 39 VI.1 The Quantity and Quality of Reparation .................................................................... 39 VI.2 Victim-orientated Reparation .................................................................................... 40 VI.3 Non-discriminatory Reparation Awards .................................................................... 42 VII. Forms of Reparation............................................................................................. 44 VII.1 Restitution ................................................................................................................. 44 VII.2 Compensation ........................................................................................................... 51 VII.2.1 Standard of Compensation ............................................................................................................ 51 VII.2.2 Only Compensation? ...................................................................................................................... 54 VII.2.3 Assessment of Harm ...................................................................................................................... 54 VII.3 Rehabilitation ............................................................................................................ 65 VII.3.1 Jurisprudence of human rights mechanisms on the right to rehabilitation ................................... 66 VII.4 Satisfaction ................................................................................................................ 68 VII.5 Guarantees of non-repetition ................................................................................... 73 VIII. Specific Considerations in the Context of Massive Human Rights Violations ......... 76 VIII.1 Individual v. Collective Forms of Reparation ........................................................... 76 VIII.2 Collective Forms of Reparation ................................................................................ 79 IX. Gender Specific Forms of Reparation ..................................................................... 82 X. Enforcement of Reparation Rulings ........................................................................ 87 X.1 Challenges to Enforcement ......................................................................................... 87 X.2 Steps to Address (Some of) the Enforcement Challenges .......................................... 89 XI. Conclusions and Recommendations ....................................................................... 92 Recommendations to the African Commission on Human and Peoples’ Rights .............. 93 Recommendations to the African Union ........................................................................... 94 Recommendations to States ............................................................................................. 94 XIV. Annexes .............................................................................................................. 95 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law .................................................................................... 95 General Comment No. 3 .................................................................................................. 102 Robben Island Guidelines ................................................................................................ 111 Resolution on the Right to a Remedy and Reparation for Women and Girls Victims of Sexual Violence ............................................................................................................ 117 Fair Trial and Legal Assistance Guidelines ....................................................................... 119 2 Introduction and Context | 000 I. Introduction and Context The right of victims of human rights violations to reparation is a ‘well-established and basic human right that today is enshrined in universal and regional human rights treaties and instruments.’1 Yet, its application in practice is far from satisfactory, and the majority of States fail to provide victims with an effective remedy, and only rarely do victims obtain full and adequate reparation.2 When States fail to afford reparation, regional and international human rights complaints mechanisms (‘human rights mechanisms’) can help to strengthen the application of the right to reparation at national level by awarding adequate reparation where they find a State responsible for human rights violations. This also holds true for cases filed with regional and sub-regional mechanisms in Africa. The African Commission on Human and Peoples’ Rights is the main regional forum for victims of violations of the African Charter to seek justice where domestic justice systems are not available, effective or sufficient. The African Charter provides the African Commission on Human and Peoples’ Rights (‘African Commission’ or ‘Commission’) with a broad mandate to ‘promote human and peoples' rights and ensure their protection in Africa.’3 However, as the African Charter does not include an express provision on the right to reparation for victims of violations of the rights set out in the Charter, the Commission’s early jurisprudence was sparse in this area, and the jurisprudence continues to be variable, largely contingent on whether claimants specifically request reparation, and the nature and detail of such requests. It is not currently standard practice at the Commission to request or encourage petitioners to specifically request that the Commission recommends reparation as part of its dispositive of the case, nor to submit arguments or evidence specifically related to the measures of reparation sought. Consequently, victims and/ or their representatives often do not include specific claims of reparation in their submissions, which in turn can result in inadequate, limited and inconsistent rulings on reparation. Currently, reparation does not feature as a prominent issue on the agenda of the Commission. Gaps remain between its jurisprudence and international standards such as those reflected in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law of 2005 (‘UN Basic Principles and 1 International Criminal Court (ICC), The Prosecutor v Thomas Lubanga Dyilo, Decision establishing the principles and procedures to be applied to reparations, No. ICC-01/04-01/06, 7 August 2012, para.185. See generally, UN Human Rights Committee, General Comment 31, Nature of the Legal Obligation on States
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