Transformative Reparations of Massive Gross Human Rights Violations: Between Corrective and Distributive Justice
| Author | Rodrigo Uprimny Yepes |
| Date | 01 December 2009 |
| DOI | 10.1177/016934410902700411 |
| Published date | 01 December 2009 |
| Subject Matter | Part C: Appendices |
Netherlands Q uarterly of Human R ights, Vol. 27/4, 625–647, 2009.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 625
PART C: APPENDICES
TRANSFORMATIVE REPARATIONS
OF MASSIVE GROSS HUMAN RIGHTS
VIOLATIONS: BETWEEN CORRECTIVE
AND DISTRIBUTIVE JUSTICE
R U Y*
Rector Magnice,
1. INTRODUCTION
Recently, an eth ical a nd legal principle has undergone a process of consolidation.
According to this principle, victims of gross human r ights violations a re entitled to
receive full and prompt reparation for the harm they suered.1 is principle, wh ich
* Inaugural address as Visiting Professor to the UNESCO Chair in Education for Peac e, Human
Rights and Democracy 2009, del ivered on 21 October 20 09 at Utrecht University, the Ne therlands.
Professor at the Fa culty of Law, National University of Colombia. Di rector of the Center of S tudies
‘DeJuSticia’ in Colombia (www.dejust icia.org). A ll interne t sources were la st acces sed in August
2009.
1 is principle has been incorporated in some treat ies, such as the American Convent ion on Human
Rights, the Convention against Torture a nd Other Cruel, Inhuma n or Degrading Treatment or
Punishment , and the Rome Statute of the International Cr iminal Court ; it has also been recognised
by international t ribunals, such as the Inter-Ame rican Court on Human Rig hts in several decisions
and it has also been ex plicitly stated in impor tant so law documents in thi s area, such as the ‘Basic
principles and Guideline s on the Right to a Remedy and Reparations for Victims of Gross Violations
of Intern ational Huma n Rights Law and Serious Violations of International Humanitari an Law’,
approved by the United Nations G eneral Assembly in December 2005 (here inaer, the ‘UN
2005 G uidelines’). For comprehensive summaries of the evolution of international law relate d to
reparations of gr oss human rights violations, see Falk, R ichard, ‘Re parations, International Law
and Global Justice: A New Frontier’, i n: De Grei f, Pab lo (ed.), e Handbook of Reparations,
Oxford University Press, Ox ford, 2006, pp. 428–503. See also Buyse, Antoine Chr istian, Post-
Conict Housi ng Restitution. e Eu ropean Human Rights Pers pective with a Case S tudy on Bosnia
Herzegovina, Intersentia, Antwer p, 2007, pp. 113–137. e evolution in the Inter-American Cour t of
Human Rights ha s been remarkable. See Pasqua lucci, Jo M., e practice and procedure of the Inter-
American Cour t, Cambrid ge University Press, Cambridge, 2003, pp. 230 –290. See also Carril lo,
Arturo, ‘Just ice in context: e relevance of Inter-America n Hu man Rights Law and practic e
to rep airing the pas t’, in: De Grei (ed.), o p.cit. (supra), pp. 50 4–538; and Cassel, Douglas , ‘e
Expandi ng Scope and Impact of Repar ations Awarde d by the I nter-American Court of Huma n
Appendices
626 Intersentia
is a victory following long years of dicult str uggles by human rights movements,
represents for victims and their next-of-kin, whose dignity has been critical ly aected
by horrendous crimes, namely torture or forced disappearances, a hope that the harm
they suered wi ll be addressed a nd that their d ignity w ill be restored. I obviously
strongly support t his principle that has rescued victims, su rvivors and their families
from the oblivion in which t hey were in the past.
Nevertheless, this pri nciple of integral reparation prompts dicu lt paradoxes and
dilemmas for societie s that are settling an ar med conict or an authoritarian regi me,
in which l arge-scale gross huma n rights violations were c ommitted.2 ese societ ies
usually face als o deep social and economic inequalities and a considerable percentage
of their population lives in extreme poverty. e ideal of integral reparations becomes
problematic in that context;3 it implies, at least in some cases, dicult conicts
between corrective and distributive justice, so to use the old but stil l very usefu l
distinction proposed by Aris totle in the book V of h is Nichomenian’s Ethics. In
philosophical terms, there is a tension between t he duty of States to make all eorts
to rectif y an unjust harm done to v ictims and its duty to adopt measu res to achieve
a fa ir distribut ion of benets and burdens among all members of societ y.4 I n legal
terms, there is a tension between the duty of States to repai r those whose civil rights
Rights’, in: De Feyter, Koen , Parmentier, Stephan, Bossuyt, Mark and Lemmens, Paul (eds), Out
of the Ashe s. Reparation fo r Victims of Gro ss and Systemati c Human Rights Vio lations, Intersent ia,
Antwerp/Oxford , 2005, pp. 191–223.
2 I a m aware that there are important legal di erences between human r ights violations and
breaches of international humanitari an law. I have even writ ten a paper to show t he implications
of these d ierences in rel ation to the lega l responsibilit y or liabilit y of States and non-State armed
organisation s (see Uprimny, Rodrigo, ‘Algunas reexiones sobre la res ponsabilidad por la violac ión
de los d erechos humanos en la C onstitución’ [Some thoughts about liability for human rights
violations in Colombia n Con stitution], in: Pena, Hector et al., La responsabili dad en derechos
humanos [Liability in huma n rights], Universidad Nacional, Bogotá, 1996 , pp. 51–78). Nevertheless,
in t his presentat ion, I will u se the expression human right s violati ons to make referenc e to b oth
kinds of violat ions because it simplie s the language and do es not have serious implicati ons for my
argument.
3 For a very insig htful ana lysis of the same problem, see De Grei, Pablo, ‘Justice a nd Reparations’,
in: De Grei (ed.), op.cit. (note 1), pp. 452–477. eses analys es have had deep inuence on my own
approach.
4 In a similar way, Michael Freeman says: ‘ere ca n be a tension between reparati ve and distributive
justice, because back ward-looking policies may weaken soc iety’s capacity to build a more ju st
future. Gi ven limited resou rces the demand s of distribut ive justice may pla ce some constra ints on
reparation. Yet reparative just ice may be r ight in itsel f, and might contribute to a more stable and
just future’; Freeman, Michael , ‘Back to the future: the historical di mension of liberal justice’, in: Du
Plessis, M ax and Pete, Stephen (eds), Repairing the Past? Inter national Persp ectives ob Reparation
for Gross Human Rights Abuses, Intersent ia, Ant werp, 20 06, at p. 51. See also from this author
‘Historical Injustice and Lib eral Political eory’, in: Gibney, Mark et al. (eds) , e Age of Apology,
University of Pens ilvania Press , Philadelphia, 2008, pp. 4 5–60. See a lso Kalmanov itz, Pablo,
‘Corrective Justice vs. Soci al Justice in the aermath of war’, presentation in the seminar on ‘Land
Reform and Dist ributive Justice in the Settlement of I nternal Armed C onicts’, Bogotá, June 20 09,
www.prio.no/FICJC/ Forum-activ ities/Land-refor m-and-distr ibutive-justice -in-the-sett lement-of-
internal-armed-conicts/.
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