{"id":137228,"date":"2016-01-19T10:38:33","date_gmt":"2016-01-19T09:38:33","guid":{"rendered":"http:\/\/www.recom.link\/reparations-and-assistance-for-victims-whats-the-difference-2\/"},"modified":"2016-01-19T10:40:12","modified_gmt":"2016-01-19T09:40:12","slug":"reparations-and-assistance-for-victims-whats-the-difference","status":"publish","type":"post","link":"https:\/\/www.recom.link\/bhsc\/reparations-and-assistance-for-victims-whats-the-difference\/","title":{"rendered":"Reparations and Assistance for Victims: What\u2019s the Difference?"},"content":{"rendered":"

\"Beyond<\/a><\/p>\n

 <\/p>\n

by <\/span> Peter Dixon<\/a><\/span><\/span><\/p>\n

 <\/p>\n

In March 2015, the Appeals Chamber of the International Criminal Court issued its first-ever judgment on reparations<\/a>, in the Thomas Lubanga Dyilo<\/em> case, confirming the Court\u2019s historic commitment to moving beyond retributive justice for victims of the gravest crimes. At the same time, it urged the Court\u2019s Trust Fund for Victims<\/a>\u00a0(TFV) to issue assistance<\/em> measures<\/em> to victims who fall outside the scope of victimization determined at trial [Reparations Judgment,\u00a0<\/em>para. 215].\u00a0The use of assistance to complement, fill in, or expand reparations programs is both novel and increasing in international law and transitional justice, yet there is little research\u00a0focused specifically on their combination.<\/p>\n

 <\/p>\n

\n
\"UnidadVictimasColombia\"
A Peace March supported by the Colombian Victims\u2019 Unit, which implements reparations and assistance for victims of the armed conflict. Source: Victims\u2019 UnitA Peace March supported by the Colombian Victims\u2019 Unit, which implements reparations and assistance for victims of the armed conflict. Source: Victims\u2019 Unit<\/figcaption><\/figure>\n<\/div>\n

 <\/p>\n

 <\/p>\n

In my\u00a0paper<\/a> in the forthcoming special issue on victims in\u00a0the International Journal of Transitional Justice, edited by Juan Mendez<\/a>, I present two contemporary examples where reparations and assistance are being combined for victims of grave crimes: the ICC\u2019s forthcoming reparations awards in the Democratic Republic of the Congo [see here<\/a> and here<\/a>]\u00a0and Colombia\u2019s recent reparations program \u2013\u00a0Law 1448<\/a>\u00a0\u2013\u00a0for victims of its armed conflict.<\/p>\n

The relationship between \u2018reparations\u2019 and \u2018assistance\u2019 exposes fundamental tensions at the heart of transitional justice: between inclusive and exclusive approaches to reparative justice; between the legal strictures of redress and the complex realities of violence; and, ultimately, between the supposed symbolic power of reparative justice and victims\u2019 experience of reparations in practice. While scholars and practitioners often assume that reparations and assistance are clearly distinct, their combination suggests otherwise.\u00a0Both the ICC\u00a0and Colombian cases highlight that the line between reparations and assistance can become blurry in practice. They can look similar in form, have similar impacts, be distributed through similar processes and, I argue, impart similar notions of responsibility and recognition to victims of grave crimes and gross violations of human rights.<\/p>\n

Defining \u2018Reparations\u2019 and \u2018Assistance\u2019 in Transitional Justice<\/h3>\n

In their narrowest definition, reparations are measures provided by a wrongdoing party out of obligation to redress the harm caused to an injured party [for more, start with\u00a0this book<\/a>\u00a0from REDRESS or this paper<\/a> by Luke Moffett].\u00a0While often conflated with financial compensation, reparations can take any number of forms, from cash to goods and services, and can be material, symbolic, individual or collective.\u00a0Recognizing that reparations do not always have to be provided by the actual wrongdoing party, REDRESS defines the term as:<\/p>\n

the range of measures that may be taken in response to an actual or threatened violation; embracing both the substance of relief as well as the procedure through which it may be obtained.<\/p><\/blockquote>\n

Assistance, on the other hand, is a broader term that can refer to any number of measures provided in response not to injuries, but to needs, and can stem from development projects, humanitarian relief, aid initiatives, state subsidies and more. I use the term more selectively to refer only to those assistance measures that originate from the same source as reparations and target the same general categories of victims of grave crimes and gross violations \u2013 that is, where assistance is used as a transitional justice\u00a0strategy itself alongside reparations<\/strong>.<\/p>\n

Both at the ICC and in Colombia\u2019s reparations program, victims can access assistance measures alongside\u00a0reparations. The ICC\u2019s TFV has\u00a0reparations and assistance mandates<\/a>. In Colombia, victims have a right to \u2018comprehensive reparations\u2019 as well as \u2018humanitarian aid\u2019 [art. 47], \u2018assistance\u2019, and \u2018care\u2019 [art. 49]. In the paper, I refer collectively to the latter three as \u2018assistance\u2019.\u00a0The ICC\u2019s work in the DRC and Colombia\u2019s reparations program are valuable cases to interrogate this scenario because they represent quite different legal models and contexts and can illuminate critical differences in contemporary approaches to implementing reparations.\u00a0Where the ICC is based on individual criminal responsibility, Colombia\u2019s program is based on state responsibility. And while the Ituri war was a brutal and deadly conflict, it is nowhere near the same scale as in Colombia, where almost 16% of the national population (7.6 million people) have already been registered as victims of the 60-year armed conflict, according to the\u00a0Victims\u2019 Unit<\/a>, which administers the program.<\/p>\n

Distinguishing Reparations from\u00a0Assistance<\/h3>\n

There are five available\u00a0frameworks to\u00a0elaborate the differences between reparations and assistance in transitional justice programs and scholarship. These generally focus on the unique aspects of reparations that set them apart from \u2018mere\u2019 assistance:<\/p>\n

    \n
  1. that reparations imply the ascription of responsibility;<\/strong><\/li>\n
  2. that reparations are at heart a form of recognition<\/strong> of victims and in particular their status as rights holders;<\/li>\n
  3. that reparations differ in terms of the process<\/strong> through which victims become eligible for and receive them;<\/li>\n
  4. that reparations differ in form<\/strong> from assistance, in part because the former are addressed to victims\u2019 harm, not their needs;\u00a0and<\/li>\n
  5. that reparations differ fundamentally from assistance in terms of their goals and ultimate impact.<\/strong><\/li>\n<\/ol>\n

    Yet, each of these frameworks\u00a0has notable\u00a0shortcomings when it comes to distinguishing between reparations and assistance in practice. While\u00a0I fully cite all of these in the paper, suffice it to say here that there is a rich literature available for those interested in learning more. I suggest starting with the ICTJ<\/a> and IJTJ<\/a>, as well as the aforementioned resources by REDRESS and Moffett.<\/p>\n