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2017 | Ceasefire report Reparations for the Victims of Conflict in Iraq - Lessons learned from comparative practice

In the past decades, Iraq and its population endured many hardships. Whether caused by the dictatorial regime of Sadam Hussein, the Iraqi invasion in Kuwait, the occupation by the United States and their allies following Sadam Hussein’s overthrow or by ISIS, the people of Iraq have suffered from large-scale serious violations of human rights and international humanitarian law (IHL). Consequently, they have a right to adequate, prompt and effective reparation.

Depending on the period of conflict and dictatorship, Iraq has established a series of reparations initiatives including  the United Nations Compensation Commission (1991) providing reparations to some victims of Iraq’s invasion of Kuwait, the Iraq Property Claims Commission (2004 - later renamed the Commission for the Resolution of Real Property Disputes) dealing with land-related violations committed under Sadam’s regime and the Law No. 20 of 2009 on Compensating Victims of Military Operations, Military Mistakes and Terrorist Actions. This report addresses whether Law 20 has sufficient remedial power to deal with the seriousness, scale and variety of the harm and violations inflicted on Iraq’s population during the conflict with ISIS.[1] Following an analysis of international and domestic practice on reparations for victims, the work outlines the steps needed to achieve a comprehensive reparation framework able to provide adequate and effective reparations to victims of the ISIS-regime in Iraq from 2014 onwards.

At the outset, the report explains that, in a narrow sense, reparations aim at restoring victims’ harm to the extent possible as well as recognizing them as victims and as right holders. Through reparations, victims are given a voice, are being empowered and dignified. Through a wider lens, reparations help rebuild social reconciliation and democratization. Chapter 2 highlights the international legal framework (implicitly or explicitly) underpinning the right to reparations ranging from international human rights law (IHRL),[2] international criminal law[3] and IHL.[4] Traditionally, the duty to repair civilian harm is on States. Whether armed opposition groups –strongly represented in today’s armed conflicts- have an obligation to provide reparation for harm inflicted on their victims as well, is an unresolved issue under international law. Nevertheless, the work advances an encouraging shift when pointing at the 2006 Colombian Peace Agreement. The agreement, signed between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC), holds the latter to support the reparations process for instance by helping with social work and demining fields. Chapter 3 focusses on the scope and reach of the right to reparations for gross violations of human rights and serious violations of IHL. Regarding the question who is considered a victim, the work stipulates that the notion of ‘victim’ should be broadly defined by including direct victims, those affected by these violations (for instance the victims’ relatives), witnesses and even child soldiers. Also domestic reparation programmes have adopted such broad and flexible approach. In line with what is required by international law, these victims should receive ‘adequate, effective and prompt’ reparations.

Adequate

Adequate remedies are tailored depending on what is required by the specific situation and can take multiple forms including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. They can be provided either on an individual or collective basis and aim at providing the maximum level of redress while taking into account the vulnerability of certain groups such as women and children and religious, cultural and political context. Moreover, ‘adequate’ also entails that reparations are accompanied by the recognition of the perpetrator’s responsibility, full investigation of the violations suffered and disclosure of the truth.

Effective

From a practical perspective, reparations are considered ‘effective’ when they try as far possible to wipe out the harm caused. But also procedural safeguards ensuring victims’ access to reparation are required to be effective. In situations with thousands or millions of victims, domestic administrative reparation programmes may prove to be the most effective approach to restore their harm to the extent possible, considering that they generally contain clear procedures and are capable of delivering reparations quickly, at lower costs using lower standards of evidence.

Prompt

Absent political will or failing governmental institutions, reparations are seldom provided while the violence is ongoing. If at all, they generally only follow many years after the violations occurred. Only in exceptional cases urgent interim reparations, such as humanitarian aid, cash payments and medical care, are provided during conflict.

Based on the above, the work concludes that the nature of the right to reparation and its application to gross human rights violations and serious violations of humanitarian law, calls for further specification of what these adjectives mean in the context of redress.

Law 20 on Compensation for Victims of Military Operations, Military Mistakes and Terrorist Actions

The last chapters explore whether victims who have suffered violations caused by the conflict with ISIS since 2014, can sufficiently obtain redress under Iraq’s Law 20 on Compensation for Victims of Military Operations, Military Mistakes and Terrorist Actions. The law, passed in 2009 and amended in 2015 mainly provides the possibility for compensation for victims and covers incidents from 20 March 2003 onwards (the date of the American invasion of Iraq). Law 20 applies to natural persons, their family members and legal persons harmed by the types of incidents specified in the title ánd kidnapping. Notwithstanding some positive aspects of this act, it also has its gaps and shortcomings.

To begin with, the high number of claims for compensation ensuing from violations since 2003 onwards, caused a backlog in reparation decisions. The strongly decentralized system of institutions responsible for delivering reparations and bureaucratic procedures further add to a delay in reparations.  Another issue is that, at odds with international practice, the act places an undue burden on victims by requiring of them to come up with numerous official evidentiary documents such as authenticated investigation reports and property deeds, which needed to be collected from multiple government offices that moreover were difficult to reach safely because of the security situation. The act was also not fit to accommodate the vast number of displaced persons within Iraq that were required to submit their claims and collect compensation in the governorate that the incident occurred while many of them were unwilling to return to their governorates for safety reasons.

Towards a comprehensive reparation scheme for ISIS victims

The works finds that that ensuring accountability and justice for victims should be given priority and that reparations should be a central element therein. To that end, the gaps in the system underlying Law 20, must be restored. In order to ensure that the greatest possible number of victims is able to claim reparations, the scope of victims should be expanded to include victims of serious violations typical to the ISIS, such as victims of sexual violence, forced disappearance, forcefully recruited child soldiers and traumatized persons. In addition, it should become possible to award collective reparation to religious minorities and to those who have been victimized on the basis of ethnicity. Whereas Law 20 predominantly focusses on monetary compensation, it should be complemented with non-monetary forms of reparation such rehabilitation, education and access to psychological and social care. The standard of evidence should be lowered in order to facilitate easier access to reparation for victims.  While the defeat and dissolvement of ISIS makes their role in providing reparations to its victim unlikely, the work expresses the hope that ISIS victims can profit from confiscated ISIS assets.

 


[1] The conflict with ISIS has led to the displacement of over 3 million people, large-scale destruction, and widespread violations of human rights and international humanitarian law perpetrated by an array of actors.

[2] E.g. the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights (ICCPR), the European Convention or the American Convention on Human Rights, UN Convention Against Torture, Inter-American Convention to Prevent and Punish Torture, UN Convention on Enforced Disappearances and the 2005 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.

[3] See Article 75 of the Rome Statute of the International Criminal Court (ICC) recognizing that victims of crimes against humanity, war crimes, genocide and aggression are entitled to reparation. This provision specifically refers to three forms of reparation: restitution, compensation and rehabilitation.

[4] See Article 3 of the 1907 Hague Convention (IV) and its annex and Article 91 of the Additional Protocol I to the Geneva Conventions, specifically referring to compensation and not to other forms of reparation.