Jürgen Schurr
those suffering from an incurable disease as a consequence of crimes committed
during a conflict – will not be able to benefit from reparation. Prioritizing certain
groups in receiving reparation could be one way of addressing this risk, and
this was done to some extent in South Africa and to a greater extent in Sierra
Leone. Delays will create anger and frustration among victims who have been
waiting for reparation for years, if not for decades. A transparent process based
on consultation can go some way towards addressing potential delays.
The establishment of a reparation programme will require some balancing:
how much will a government want to spend on a specific transitional justice
mechanism – for instance, the prosecution of perpetrators – and how much will be
left for reparation so as to make it meaningful? This balance has not always been
in favour of victims and reparation, especially if we look at mechanisms set up at
the international level – the International Criminal Tribunal for Rwanda (ICTR),
the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the
Special Court of Sierra Leone – where the emphasis has been on prosecution,
and millions of dollars have been spent to hold perpetrators accountable. While
this can be an important component of a reparation policy, it has not reflected
the commitment made in terms of reparation. Indeed, neither the ICTY, nor the
ICTR, nor the Special Court for Sierra Leone has fully addressed the question
of reparation. No provision was made for victims to participate and/or to
claim reparation, and no reparation programme has been set up alongside the
establishment of tribunals, which explains to some extent the lack of acceptance
of these mechanisms by victims in Rwanda and in the former Yugoslavia.
Most reparation programmes include the setting up of a fund that will cover
different forms of material reparation in the form of compensation, rehabilitation
and restitution – material and non-material damages, access to medical care,
university fees, etc. Such funds have been set up in different forms in South
Africa, Sierra Leone, Peru and Morocco, and have been suggested for Sudan as
well as Rwanda, where funds need yet to be established.
Compensation or reparation funds will need to have a clear management
structure, and consider such issues as how to quantify loss and how to distinguish
between the harm done to victims – for example, a torture victim who has
suffered one day of torture and another who has been detained and tortured
over a year. The disbursement of compensation will need to be addressed, as will
the composition of a reparation fund. An important challenge, of course, is the
financing of such funds, as the implementation of a reparation programme will
be expensive. The international community can play a role, as it has in Sierra
28
International Conference on Transitional Justice, Zimbabwe
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