The Global Experience of Transitional Justice
should receive reparations, regardless of their association with an armed group.
While this definition is in line with international law, the government of Peru
ultimately rejected the Commission’s recommendation, and today’s reparation
programme explicitly excludes members of armed groups and their families.
The law establishing the programme even provides that ‘members of subversive
organizations are not considered victims’. This is not only contrary to international
law, and potentially divisive within Peru, but it is also difficult in practice to
determine and identify those who had been members of a subversive group.
This brings us to the implementation of reparation processes in the aftermath
of a repressive regime or a violent conflict. As already mentioned, ordinary court
processes might not often be a solution, as the magnitude of the crimes and
victims affected would lead to an overburdening of the legal system and to delays
in providing reparation. Furthermore, often a legal system does not exist that
would allow victims to put their claims forward, as is currently the case in Libya
or was in the immediate aftermath of the genocide in Rwanda.
Increasingly, states in transition establish reparation programmes that aim
to provide the type of reparation necessary under the circumstances – either
material, medical or symbolic – and the forms of distribution – either collective,
benefiting entire communities, as, for instance, in Peru, or individual, in the
form of compensation, for example. Again, the process of designing programmes
should be guided by broad consultation. According to the Guidance Note of the
UN Secretary-General, ‘experience has shown that the most successful reparation
programmes are designed in consultation with affected communities, particularly
victims and women groups’.4
Reparation programmes can complement truth-seeking mechanisms. Indeed,
the truth commissions established in South Africa, Sierra Leone, Morocco, Peru,
Chile and Argentina actually recommended the establishment of reparation
programmes. Reparation programmes can also complement prosecution
initiatives, such as happened, to some extent, in Bosnia and Rwanda; it appears
that reparation programmes, if established, would come after the prosecution of
those responsible.
Generally, a prompt establishment is important, as the implementation
of reparation programmes will usually require a lot of time. A delay in the
establishment results in a risk that many victims – in particular the elderly, or
4
United Nations, Guidance Note of the Secretary-General: United Nations Approach to
Transitional Justice.
International Conference on Transitional Justice, Zimbabwe
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