2014 | Draft Procedural Principles for Reparation Mechanisms
The present Draft Procedural Principles for Reparation Mechanisms, soft law in nature, supplement the 2010 Declaration of International Law Principles on Reparation for Victims of Armed Conflict (Hague Declaration, containing substantive aspects of the right to reparation).
The International Law Association (ILA) recognize that victims of armed conflicts face legal and procedural hurdles at the domestic as well as at the international level when seeking to have their right to reparation enforced. At the same time, it emphasizes that, under traditional international law, the existence of an individual right is not dependent on the international procedural capacity to assert it (p. 790). With these principles, the ILA’s Committee on Reparation for Victims of Armed Conflict aims to address the dissociation between the substantive right to reparation and the procedural capacity to assert this right, that is so detrimental to victims.
The Committee points out that many factors influence the choice for and design of a reparation mechanism, including the nature of the violations, the harm suffered (e.g., personal injuries or real property losses), the geographical range and circumstances in which the victims are living and the involvement of international organizations. Accordingly, the Committee finds that the design of future reparation mechanisms can be shaped in many different ways. The present Principles reflect this stance for they provide guidance on a minimum set of core issues that need to be observed when planning a reparation mechanism for victims of armed conflict. These range from access to a reparation mechanism (Principles 1-3), a mechanism’s organizational structure (Principle 4) to claims-collecting and processing (Principles 5-8), compliance and enforcement of a mechanism’s decisions (Principle 9) and supplying funding for compensation (Principle 10).
The content and scope of each Principle’s is elucidated in a commentary which adds further substance to the Principle by showing how its applicability varies along the course of the post-conflict situation. Ample reference is thereby made to practices and experiences of former claims commissions as for example the Eritrea-Ethiopia Claims Commission (EECC), The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) established by the Agreement on Refugees and Displaced Persons annexed to the Dayton Peace Agreement, the United Nations Compensation Commission (UNCC, for claims resulting from the Gulf War) and the International Commission on Holocaust Era Insurance Claims (ICHEIC). This approach provides the reader with a clear understanding of the fact that a reparation mechanism’s procedural design is situation-dependant and not susceptible to being cast as single template. Two examples thereof:
- Principle 6 regarding adequate rules for collecting, registering and processing claims
In order to provide victims with a meaningful opportunity to submit their claims, a reparation mechanism should take into account the geographical area in which the victims are living. Victims living remotely should be enabled to submit their claims at a distance, for example by sending their claims by mail to one central office or by submitting the claim in person in a regional or local office. Also, reparation mechanisms must allow victims to use their own words and language while taking into account the needs of particularly vulnerable claimants, especially victims of sexual violence, and should entail rules on which heirs are eligible to file claims. Such rules may vary among the mechanisms, as was the case in various mechanisms so far established (p. 797).
- Principle 7 regarding adequate rules for decision-making, including the evaluation of claims.
In post conflict situations, victims will often have lost the documentary evidence to demonstrate their losses, or the quality of their evidence may be poor. To deal with this, the Committee suggests that future reparation mechanisms should embed in their procedures rules that reduce the burden upon claimants to prove their eligibility for reparation. This approach was adopted by the UNCC which applied simplified verification procedures for urgent individual claims. Simplified verification should also be considered for mechanisms dealing with claims arising from events long past, as was done by the Claims Resolution Tribunal for Dormant Accounts in Switzerland (CRT-I) in the case of the reparation for Holocaust victims who faced delicate evidentiary problems caused by the lapse of time from the events causing their harms (p. 801). For an efficient operation of a reparation mechanism, simplified proceedings will also often be necessary in situations with large numbers of claims. Here, the Committee proposes to replace holding hearings by making reparation only on the basis of written documents.