PhD Defense A.M.H.M. Bax
The Development of Collective Reparations in International Courts and Truth Commissions
- Location: Cobbenhagen building, Aula
- Supervisors: Prof. R.M. Letschert, Prof. A. Pemberton
- Co-supervisor: Dr. M.F. de Waardt
This dissertation focuses on substantive remedies that address the harm caused by mass atrocities, these are often referred to as reparations. More specifically, the starting point of this research was the observation that the individual right to reparations has increasingly received a collective character. As this dissertation explores, there is a growing recognition of collective reparations in international law. Nevertheless, neither a legal definition nor a framework of collective reparations has yet been established.
Against this background, this dissertation sets out to gain a deeper understanding of collective reparations and its development, and to contribute to the crystallization of the legal framework regarding collective reparations. Concretely, the objective of this study is to analyze case law of the Inter-American Court of Human Rights (hereinafter IACtHR), the International Criminal Court (hereinafter ICC), the Extraordinary Chambers within the Courts of Cambodia (hereinafter ECCC) and the reports of 15 truth commissions in order to scrutinize how each court and truth commission defines and applies collective reparations, and the underlying reasoning for a specific approach to collective reparations. The analysis of the case law and reports is conducted in a systematic and comprehensive manner through the use of qualitative content analysis. Furthermore, this dissertation includes a comparative analysis between the truth commissions, between the courts, and between the courts and truth commissions.
The analyzed institutions face some identical challenges inherent to mass atrocities, such as the high number of victims and harm that is often irreparable, and some challenges that are specific to the institution, including their mandates. The courts and truth commissions have developed different approaches to respond to these challenges, resulting in different definitions and varying modalities of collective reparations. Hence, the ordered reparations reflect the context from which they arise,
including the legal field in which they operate (human rights law or international criminal law), their mandates, the circumstances of the case at hand, and available resources. Even though it is understandable that these distinct contexts influence the reparation decisions, the institutions should be transparent in relation to this. Furthermore, the institutions should consider how their contexts influence the (collective) reparations they can issue and that can realistically be implemented, and adjust the used definitions and orders accordingly. The institutions should not only be transparent on how its context influenced the understanding of (collective) reparations, these should also be transparent about the assumptions underlying their reparation orders, as well as the assumed added value of reparations over assistance. Lastly, the states and international organs that establish institutions with a reparations mandate should be realistic about the actual possibilities of these institutions to provide meaningful reparations.