Uganda: Substantive
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| AFRICAN HUMAN RIGHTS LAW JOURNAL (2014) 14 AHRLJ 526-552 Providing reparations in Uganda: Substantive recommendations for implementing reparations in the aftermath of the conflicts that occurred over the last few decades Jeremy Sarkin* Professor of Law, College of Law, University of South Africa Summary Dealing with past human rights violations has become a common feature of societies that emerge from an atrocious past characterised by massive contraventions of human rights. Establishing a comprehensive version of the past is progressively being seen as vital, including dealing with issues of justice, truth, reconciliation, reparations and guarantees of non- repetition. The article examines the issue of reparations in the context of Uganda. It considers the right to reparations in international law. Through an analysis of international law, it is argued that the responsibility for the provision of reparations rests on the state of Uganda, even if the state was not directly responsible for the atrocities committed, although other actors may, and possibly should, assist in the provision of reparations, including the United Kingdom as the former colonial power. The article examines what reparations are, the types of reparations that can be provided, and the types of reparations that ought to be provided to the many victims in Uganda. The article examines the component parts of reparations and makes recommendations on the types of reparations that ought to be given to victims and the manner in which such a programme ought to be delivered. The violations that occurred in Uganda over a long period are examined briefly to provide a context to the discussion on the issues relating to reparations. The article studies urgent or interim reparations, collective and individual, symbolic and material types of reparations as well as the various types of reparations that could be provided in Uganda, * BA LLB (Natal), LLM (Harvard), LLD (Western Cape); sarkijj@unisa.ac.za looking at other countries to see what has been done elsewhere. The article recommends that urgent or interim reparations are paid in the short term, a truth-seeking mechanism provides recommendations on reparations in the medium term, and a full and comprehensive reparations process, instituted with a diverse and wide set of parameters, is established in the medium to long term. A variety of other recommendations are made throughout the article. Key words: Dealing with the past; reparations; transitional justice; human rights violations; Uganda; comparative approaches 1 Introduction Dealing with past human rights violations has become a common feature of societies that emerge from an atrocious past characterised by massive contraventions of human rights.1 As Nelson Mandela noted:2 As ... countries recover from the trauma and wounds of the past, they have had to devise mechanisms not only for handling past human rights violations, but also to ensure that the dignity of victims, survivors and relatives is restored. Establishing a comprehensive version of the past is progressively being seen as vital.3 The issues that are usually faced include whether to adopt or annul an amnesty law,4 whether to have criminal trials5 (and if so, who is to be prosecuted and how many people ought to be held accountable),6 and whether or not to have a truth commission or some similar process.7 Making those responsible for perpetrating crimes and to be accountable for their actions is critical to engender respect for a democracy, human rights and the rule of law.8 Enhancing respect for human rights and developing a human rights 1 NJ Kritz ‘The dilemmas of transitional justice’ in NJ Kritz (ed) Transitional justice (1995) xix-xxx. 2 N Mandela ‘Foreword’ in Kritz (n 1 above) xi. 3 J Sarkin ‘Integrating transitional justice and demobilisation, disarmament and reintegration: The need to achieve rehabilitation, reintegration and reconciliation for child soldiers and child victims of enforced disappearances’ in I Derluyn et al (eds) Remember: Rehabilitation and reintegration of war-affected children (2012) 77- 104; LJ Laplante 'Transitional justice and peace building: Diagnosing and addressing the socio-economic roots of violence through a human rights framework’ (2006) 2 International Journal of Transitional Justice 331-355. 4 This continues to be an important issue for Uganda. See ‘To pardon or to punish?
5 J Sarkin Carrots and sticks: The TRC and the South African amnesty process (2004). 6 L Mallinder ‘Can amnesties and international justice be reconciled?’ (2007) 1
7 M Mutua ‘Beyond Juba: Does Uganda need a national truth and reconciliation process?’ (2007) 13 East African Journal of Peace and Human Rights 142. 8 L Huyse ‘Justice after transition: On the choices successor elites make in dealing with the past’ in Kritz (n 1 above) 104-115 337-349. culture are critical to prevent future violations. Promoting justice and accountability is helpful to deter similar acts in the future. It should assist in promoting peace and human rights.9 Reparations as a means to provide various types of redress for past violations10 are crucial11 as they go12 to the very heart of human protection – it has been recognized as a vital process in the acknowledgment of the wrong to the victim, and a key component in addressing the complex needs of victims in the aftermath of violations of international human rights and humanitarian law. In a report by the United Nations Secretary-General to the Security Council in 2004 entitled ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General’, it was noted:13 States have the obligation to act not only against perpetrators, but also on behalf of victims – including through the provision of reparations. Programmes to provide reparations to victims for harm suffered can be effective and expeditious complements to the contributions of tribunals and truth commissions by providing concrete remedies, promoting reconciliation and restoring victims’ confidence in the state. As has been noted by Zalaquett: To provide for measures of reparation and prevention, it must be clearly known what should be repaired and prevented. Further, society cannot simply block out a chapter of its history; it cannot deny the facts of its past, however differently these may be interpreted. Inevitably the void would be filled with lies or with conflicting, confusing versions of the past. A nation’s unity depends on a shared identity, which in turn depends largely on a shared memory. The truth also brings a measure of healthy social catharsis and helps to prevent the past from reoccurring. Processes to assure victims that their needs are important, such as exposing as much truth as possible, holding perpetrators accountable for their actions, and ensuring that on-going violations cease, can also have a reparative effect.14 Thus, steps to prevent non-recurrence should accompany reparations, as this tenders encouragement to victims that reparation is not a hollow promise or a temporary 9 M Mekenkamp et al (eds) Searching for peace in Africa: An overview of conflict prevention and management activities (1999). 10 A more extensive discussion on what reparations are and the types of reparations that can be provided occurs later in the article. 11 J Sarkin ‘Colonial genocide and reparations claims in the 21st century: The socio- legal context of claims under international law by the Herero against Germany for genocide in Namibia, 1904-1908’ (2009) Praeger Security International. 12 Draft Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2002). 13 UN Security Council ‘The rule of law and transitional justice in conflict and post- conflict societies: Report of the Secretary-General’ UN Document S/2004/616, New York, 23 August 2004, paras 54-55. 14 J Sarkin & E Daly Reconciliation in transitional societies: Finding common ground (2007). stopgap.15 Reparations, however, cannot be a substitute for justice and prosecution. They need to be part of any transitional justice strategy together with strategies to obtain truth, justice and reconciliation.16 2 Overview Uganda has suffered massive human rights violations over the last few decades. As will be examined later, many thousands of people have been killed, tens of thousands of people have been injured and suffered a variety of abuses, and many thousands have lost land and other property at the hands of a variety of rebel groups, including the Lord’s Resistance Army, but also at the hands of government security forces. Presently, the government of Uganda is examining what to do about the past and specifically what to do about reparations. A government inter-ministerial working group dealing with transitional justice matters has been established to determine how these issues ought to be dealt with. It is important to acknowledge that the previous conflict-affected areas in Uganda are currently experiencing relative peace. This means that a reparation process can and should begin relatively easily and quickly. This article, therefore, examines the issue of reparations in the context of Uganda. It examines the right to reparations in international law. It examines what reparations are, the types of reparations that can be provided and the types of reparations that ought to be provided to the many victims in Uganda. The article examines the component parts of reparations and makes recommendations on the types of reparations that ought to be given to victims and the manner in which such a programme ought to be delivered. It is argued through an analysis of international law that the responsibility for the provision of reparations rests on the state of Uganda, even if the state was not directly responsible for the atrocities committed, although other actors may, and possibly should, assist in the provision of reparations, including the United Kingdom as the former colonial power. The violations that occurred in Uganda over a long period are examined briefly to provide a context to the discussion on the issues relating to reparations. Reparation is but one of five pillars of transitional justice, the others being truth, justice, reconciliation, and guarantees of non- repetition.17 A comprehensive and workable process has component 15 See further R Mani ‘Reparation as a component of transitional justice’ in K de Feyter et al (eds) Out of the ashes – Reparation for victims of gross and systematic human rights violations (2006) 67. 16 J Sarkin ‘Achieving reconciliation in divided societies: Comparing the approaches in Timor-Leste, South Africa and Rwanda’ (2008) 3 Yale Journal of International Affairs 11-28. 17 Sarkin (n 11 above) 184. parts of each. They are mutually supporting and, in fact, at times overlap. While Uganda has had such processes before, including two truth commissions – the Oder Commission established in 1974 and the Odoki Commission created in 1986 – they were not successful for various reasons, including that they were not open, transparent, credible, accepted or able to play the role that such bodies ought to.18 Establishing a reparations programme in Uganda will be a difficult and complex process. It will be fraught with the politics of the present and the politics of dealing with the past. There will be major questions that need to be addressed, such as how much resources the state will be willing to allocate. Will this programme be done at the expense of the development processes that government presently is carrying out? Who will be covered in such a process? Will it benefit the whole country? Which types of victims will be covered; will it also cover victims of government abuses? Will it be done on the basis of application wherein the applicant must prove when and by whom the loss occurred? Will the definition of victim include former combatants, including child soldiers who are accused of participating in the commission of atrocities? If yes, how will the impact of the proposed reparations vary from that of the amnesty packages which were misconceived by some victims as rewards to perpetrators for the crimes committed?19 Regardless, in Uganda reparations ought to be given in stages, with interim or emergency relief being given to those in dire need more quickly. Interim or emergency reparations ought to be paid to those in urgent need as soon as possible as those with medical and other immediate needs should not have to wait for years while all the other processes occur and a definitive reparations process is worked out. Longer term and full reparations can then be given after a truth process which makes full and comprehensive recommendations on a reparations process and its methodology. This article addresses some of these issues and considers the types of reparations that should be paid. It therefore studies urgent or interim reparations, collective and individual, symbolic and material types of reparations, as well as the various types of reparations that could be provided, looking at other countries to see what has been done elsewhere. Recommendations are made throughout the article.
18 See JR Quinn ‘Dealing with a legacy of mass atrocity: Truth commissions in Uganda and Chile’ (2001) 23 Netherlands Quarterly on Human Rights 383. 19 See C Blattman & J Annan ‘Child combatants in northern Uganda: Reintegration myths and realities’ in R Muggah (ed) Security and post-conflict reconstruction: Dealing with fighters in the aftermath of war (2008) 11-12. 3 Human rights violations in Uganda Uganda has a long history of human rights violations.20 During the colonial period many violations were committed. That period saw the beginnings of the rifts between the northern and southern parts of the country. Divisions between the north and the south have been a critical aspect of the conflicts that have occurred over the last few decades.21 Thus, it needs to be recognised that the legacy of the colonial period is a factor in the violations that have been committed, including those in the more recent past. While reparations should take into account the colonial period, it may be difficult to compensate for violations that occurred before independence. Nevertheless, understanding the effect of colonialism and dealing with its consequences are necessary to avoid future conflict. The issues related to non-recurrence as a part of reparations will be examined later. Uganda’s post-independence period has seen massive human rights abuses.22 Tens of thousands were killed in the 1960s and 1970s. While there have been a number of rebel groups that have caused human rights violations, it is the hostilities between the government of Uganda and the Lord’s Resistance Army (LRA), which began in the 1980s, and that have continued to occur for three decades, which has seen the most casualties. UN Under-Secretary-General for Humanitarian Affairs, Jan Egeland, in 2003 pronounced the conflict in Uganda as ‘the biggest forgotten, neglected humanitarian emergency
were displaced.24 Many tens of thousands of civilians were killed and abducted.25 The insurgency caused massive destruction with large numbers of civilians suffering a variety of violations. In just the period between 2008 and 2011, when the conflict was waning, about 2 500 people were killed by the LRA. In the same period, about 3 500 individuals were abducted by the LRA in the Central African Republic 20 B Afako Northern Uganda: Justice in conflict (2000). 21 M Mamdani Imperialism and fascism in Uganda (1983). 22 EK Baines ‘The haunting of Alice: Local approaches to justice and reconciliation in Northern Uganda’ (2007) 1 International Journal of Transitional Justice 91-114. 23 Agence-France Presse ‘War in Northern Uganda world's worst forgotten crisis: UN’ 11 November 2003 http://reliefweb.int/report/uganda/war-northern-uganda- worlds-worst-forgotten-crisis-un (accessed 18 April 2008). 24 UN Department of Public Information ‘United Nations to step up support for Uganda’s 2 million displaced people’ 21 November 2005 http://www.un.org/ News/Press/docs/2005/afr1290.doc.htm (accessed 18 April 2008). See also M Boas & A Hatloy ‘Poor, terrorised and internally displaced: The humanitarian situation in Northern Uganda’ (2006) 36 Humanitarian Exchange 21-22. 25 Human Rights Watch ‘Uprooted and forgotten: Impunity and human rights abuses in Northern Uganda’ (2005) 17 Human Rights Watch 1-75. (CAR), in the Democratic Republic of the Congo (DRC), and in South Sudan, including 1 500 children.26 By 2007, research conducted indicated that between 24 000 and 38 000 children27 and between 28 000 and 37 000 adults were abducted in Uganda.28 Thus, the total of abductions that have occurred over the whole period is thought to be between 30 000 and 40 000 people. The number of internally-displaced persons (IDPs) caused by the fighting is believed to be about 1,7 million in Uganda alone in the period 1986 to 2007. Other countries also suffered as a result of the conflicts. Thus, there have been about half a million refugee IDPs in the DRC, CAR, and South Sudan.29 This has had critical negative consequences on the lives of the people concerned.30 As these are Ugandans, they need to be allowed to return if they have not done so already. However, finding ways of assisting people affected in these countries who are not Ugandans would also be helpful. It is, however, unlikely that Uganda will take responsibility for such people. The United Nations Refugee Agency (UNHCR) and others can play a role on this regard. Critically, violence against women (including girls)31 has occurred on a massive scale in 26 ‘Torture tops 2012 human rights violations as complaints of human rights violations reduce’ African Centre for Treatment and Rehabilitation of Torture Victims, http://www.actvuganda.org/index.php?q=story/torture-tops-2012-hum an-rights-violations-complaints-human-rights-violations-reduce (accessed 30 Sep- tember 2014). 27 See further J Annan et al ‘The state of youth and youth protection in Northern Uganda. Findings from the survey for war-affected youth’ (2006) Report for UNICEF Uganda. 28 P Pham et al ‘Abducted: the Lord’s Resistance Army and forced conscription in Northern Uganda’ (2007) Berkeley-Tulane Initiative on Vulnerable Populations. 29 See 14 December 2010, Oxfam, ‘Ghosts of Christmas past: Protecting civilians from the LRA’; December 2009, HIU State Department, ‘Conflict without borders: Lord's Resistance Army reported attacks (December 2008-November 2009), Displacement and peacekeepers’; June 2010, Ledio Cakaj, ‘On the heels of Joseph Kony: The untold tragedy unfolding in the Central African Republic’; 25 November 2010, OCHA CAR ‘Records of LRA attacks in CAR in 2010’; December 2010, Action Humanitaire en Province Orientale, ‘Rapport mensuel et bilan annuel partiel 2010’; 16 October 2007, Institute for War and Peace Reporting (IWPR) ‘Can traditional rituals bring justice to Northern Uganda’; 11 August 2010, Human Rights Watch ‘CAR/DR Congo: LRA conducts massive abduction campaign: New regional strategy needed to protect civilians and rescue children’; 25 November 2010, OCHA CAR ‘Records of LRA attacks in CAR in 2010’; 2007 SWAY Report ‘The state of youth and youth protection in Northern Uganda’; February 2004, UNOCHA ‘Child soldiers at centre of mounting humanitarian crisis’; 25 January 2012, OCHA ‘LRA regional update: Central African Republic, DR Dongo and South Sudan: January-December 2011’; 14 October 2011, US Department of State ‘Fact Sheet: US support to regional efforts to counter the Lord’s Resistance Army’; 10 March 2011, UNOCHA ‘DRC: ERC Amos calls for better security in LRA-affected areas’ http://theresolve.org/key-statistics (accessed 30 September 2014). 30 T Allen & M Schomerus ‘A hard homecoming: Lessons learned from the reception centre process on effective interventions for former “abductees” in Northern Uganda’ (2006) Management Systems International, Washington DC. 31 See J Annan et al The state of female youth in Northern Uganda: Findings from the survey of war affected youth: Survey for war affected youth (2008). Uganda.32 Tens of thousands of women and girls were raped and had to endure other forms of sexual violence.33 Those women and girls who have been so violated need to be assisted by providing counselling, support, medical treatment and other forms of reparations that are discussed below.
However, the overwhelming majority of victims have not attained their right to reparation, as will be discussed below. Consultations with people in Northern Uganda have continuously revealed that reparations are seen by victims as a meaningful form of justice,35 one that holds those responsible accountable by requiring them to adopt reparative measures that directly impact on victims’ lives. It is also important to understand the socio-economic36 effects of the war.37 Living conditions generally, and in the IDP camps in particular, have been harsh.38 Access to food, water, shelter and sanitation has not been possible for countless people as a result of the war. Families and communities have been broken up. Land occupation and possession have been affected dramatically as a result of people fleeing the war.39 These issues must be taken up in a reparations programme, but also in government development programmes. Reparations must allow people to return to their lives as before. Thus, such issues need to be taken up by the state, in addition to the injuries that people have suffered. Without dealing with such issues, there will be continued discontent which may lead again to conflict at some point in the future. In fact, unequal service delivery has been a cause of previous uprisings in the country. Thus, these matters should be issues that government, and particularly the specific government ministries, should watch carefully and deal with as much as possible, taking into account a scarcity of resources. However, 32 AM de Brouwer ‘Reparation to victims of sexual violence: Possibilities at the International Criminal Court and at the trust fund for victims and their families’ (2007) 20 Leiden Journal of International Law 207-237. 33 P Sooma ‘Despair and disdain: A tale of sexual abuse against internally-displaced women in Northern Uganda’ (2006) 12 East African Journal of Peace and Human Rights 91. See also Human Rights Watch Report (n 22 above). 34 IRIN News ‘Security- questions over progress against the LRA’ 24 February 2012 http://www.irinnews.org/Report/94941/SECURITY-Questions-over-progress-again st-the-LRA (accessed 19 February 2014). 35 Human Rights Watch Justice for serious crimes before national courts: Uganda’s international crimes division (2012). 36 I Muvingi ‘Sitting on powder kegs: Socio-economic rights in transitional societies’ (2009) 3 International Journal of Transitional Justice 163-182. 37 L Arbour ‘Economic and social justice for societies in transition’ (2007-2008) 40 Journal of International Law and Politics 1-27. 38 See generally on IDPs TJ Harris & S Rimmer ‘Reconceiving refugees and IDPs as transitional justice actors’ (2010) United Nations High Commissioner for Refugees, Geneva. 39 On Zimbabwe, see A Magaisa ‘The land question and transitional justice in Zimbabwe: Law, force, and history’s multiple victims’ 30 June 2010 Oxford Transitional Justice Working Paper Series. equality of the provision of such services is necessary, but so is dealing with past marginalisation of some communities, especially in the northern part of the country.
Reparation can encompass a variety of issues, including compensation, damages, redress, rehabilitation, restitution and satisfaction.42 Although these concepts are often used generally and interchangeably to mean reparations in general, each has a different meaning. Each describes different types of remedies that are available to a victim. The term ‘reparation’ or ‘compensation’ is used, although other terms can and have been used. Reparations are in fact a slightly broader-based form of compensation. Whereas restitution and compensation are typically for a particular wrong committed, reparations are typically from a government that takes responsibility for a policy or set of policies or actions. Thus, reparations represent a kind of moral accounting, where the payment represents the fact that harm was done, but not the amount of suffering or loss that was endured. For those who believe that the moral injustice needs to be corrected, reparations can assist in a variety of ways, including by ways of symbolic means, as will be discussed below. Reparation as compensation typically refers to measures that seek to quantify and make up for harms suffered. This includes usually serious harms other than purely economic losses, such as physical, mental43 and even moral injuries. However, questions on the extent of reparations programmes and to what extent they cover all harm suffered are affected by the extent of harm suffered and whether the state is able and willing to cover all harms. How reparations are implemented depends on how all relevant issues, including the political, economic and social processes, affect the determination of whether and how to grant reparations. Generally, reparation is a series of actions expressing acknowledgment 40 See further P de Greiff ‘Chapter 12 – Justice and reparations’ in P de Greiff (ed) The handbook of reparations (2006). 41 De Feyter et al (n 15 above). 42 M Schotsmans ‘Victims’ expectations, needs and perspectives after gross and systematic human rights violations’ in De Feyter et al (n 15 above) 160. 43 LJ Laplante & MR Holguin ‘The Peruvian Truth Commission's mental health reparations: Empowering survivors of political violence to impact public health policy’ (2006) 9 Health and Human Rights 136-163. and acceptance of the responsibility that falls to the state due to actions that have resulted from gross violations. Reparations as a term is derived from the word ‘repair’.44 It is often seen to be the making of amends by providing recompense to persons who suffered some type of loss or harm. There are different means by which reparations can be given,45 including though litigation in the courts.46 Where the claimants are many, reparations systems by states are often the favoured route.47 Reparations are critically important for victims because the provision of reparations can have various effects. It provides financial assistance to victims so that they can better deal with the pecuniary dispossession they have had to suffer. Secondly, reparations allow an official acknowledgment of what occurred. It assists to restore the dignity of victims by allowing them to see that the state recognises their suffering and is assisting them. Reparations also should have an effect on levels of impunity. It can also play a dissuasive role by ensuring that perpetrators see that they may be responsible for their actions and thus have a deterrent effect. Reparations can assist the process of grieving. It can assist in processes of recovery by ensuring that people focus on their grief. It can have this effect as victims are taken up by the processes, which aids in healing. There are many component parts of reparations. These include individual and collective, symbolic and material. There are also reparations to be granted on a once-off basis or continually.48 Each of these will be discussed and what they could contain in the Ugandan context. 5 Reparations in international law Paying reparations for past human rights abuses has been recognised as a principle of international law for many years.49 The right to reparations has also been recognised for a long time.50 The Permanent Court of International Justice (PCIJ) in 1928 noted that ‘reparation must, as far as possible, wipe out all consequences of the 44 See further S Vandeginste ‘Reparation’ in D Bloomfield et al (eds) Reconciliation after the violent conflict: A handbook (2003) 145-162. 45 B Hamber ‘Narrowing the micro and macro: A psychological perspective on reparations in societies in transition’ in De Greiff (n 40 above) 578. 46 As above. 47 P de Greiff ‘Reparation efforts in international perspective: What compensation contributes to the achievement of imperfect justice’ in E Doxtader & C Villa- Vicencio (eds) To repair the irreparable: Reparation and reconstruction in South Africa (2004) 321. 48 OHCHR Rule-of-law tools for post-conflict states: Reparations programmes (2008). 49 M du Plessis & S Pete Repairing the past? International perspectives on reparations for gross human rights abuses (2007). 50 D Shelton Remedies in international human rights law (2005) 60. illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’.51 In the years after World War II, the practice of providing reparations has evolved dramatically. There is a consciousness that the numerous human rights abuses, including war crimes, crimes against humanity, genocide, disappearances, torture, and other violations of human rights, need to be addressed, and reparation is one way of doing so.52 The right to reparations is now contained in a range of human rights treaties.53 Several of these instruments require state parties to the relevant instrument to afford ‘effective remedies’ for acts violating human rights, or to provide for the ‘right to be compensated’ where acts have occurred that violate fundamental rights.54 Such instruments include the Universal Declaration of Human Rights (Universal Declaration) (article 8); the International Covenant on Civil and Political Rights (ICCPR) (articles 2(3)(a), 9(5) and 14(6));55 and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Article 14(1) of CAT states: Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. Uganda is a state party to several of the key international and human rights and humanitarian law treaties that incorporate victims’ rights to remedy and reparations for serious violations. Uganda has ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1980); ICCPR (1995); the International Covenant on Economic, Cultural and Social Rights (ICESCR) (1987); the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1985); CAT (1986); the Convention on the Rights of the Child (CRC) (1990); the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2002); the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1995); and the Convention on the Rights of Persons with Disabilities (2008). Uganda signed the International Convention for the Protection of All Persons from 51 PICJ case concerning the factory at Chorzow, 1927 PCIJ (Ser A) No 9 52 I Bottigliero Redress for victims of crimes under international law (2004). 53 M du Plessis ‘Reparations and international law: How are reparations to be determined (past wrong or current effects), against whom, and what form should they take?’ (2003) 22 Windsor Yearbook of Access to Justice 41-69. 54 J Edelstein ‘Rights, reparation and reconciliation: Some comparative notes’ Seminar paper 6 Johannesburg: CSVR, 27 July 1994 2-4. 55 E Klein ‘Individual reparation claims under the International Covenant on Civil and Political Rights: The practice of the Human Rights Committee’ in A Randelzhofer & C Tomuschat (eds) State responsibility and the individual: Reparation in instances of grave violations of human rights (1999) 27. Enforced Disappearance in 2007. Uganda acceded to the Rome Statute of the International Criminal Court, and domesticated it in 2010.56 Reparations will also be relevant for Ugandan victims from the International Criminal Court (ICC)57 if those indicted by the Court stand trial and are found guilty, as reparations are then provided by the ICC Trust Fund.58 Already the Trust Fund is engaged with certain projects in Uganda. The right to reparations is also contained in a range of regional human rights instruments and mechanisms. It is found in international humanitarian law and international criminal law, and in various constitutional provisions in a number of countries around the world. However, the most important text dealing with reparations is the
law, they are seen to be the principles that states ought to comply with as far as reparations are concerned. They elucidate the basic standards applicable internationally and domestically for reparations. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law was adopted by the UN General Assembly in 2005. The Basic Principles and Guidelines establishes state responsibility for the provision of reparation to victims. It provides that states are responsible for human rights violations even if perpetrated by non- state actors. The basis in law for the responsibility of states for human rights violations in any case flows from a breach of a human rights instrument or for violating a norm of customary international law.60 While states have responsibilities to protect, respect, fulfil and promote human rights, the question of whether a state is obligated to provide reparations for violations committed by others has, at times, been controversial. However, a variety of institutions have found that states are possibly liable for the activities of non-state role players in 56 ICC Act of 2010. 57 A di Giovanni ‘The prospect of ICC reparations in the case concerning Northern Uganda: On a collision course with incoherence?’ (2006) 25 Journal of International Law and International Relations 27. 58 On the role the Court could play in Uganda, see J Sarkin ‘Enhancing the legitimacy, status and role of the International Criminal Court by using transitional justice or restorative justice strategies’ (2011-12) Interdisciplinary Journal of Human Rights Law 83-102. The first decision by the ICC awarding reparations to victims was the Lubanga decision in 2012, Prosecutor v Thomas Lubanga Dyilo, judgment pursuant to art 74 of the Statute, ICC-01/04-01/06, TCh I, 14 March 2012. 59 Adopted by the UN General Assembly in December 2005, published on 21 March 2006, A/RES/60/147. 60 Shelton (n 50 above); C Rose ‘An emerging norm: The duty of states to provide reparations for human rights violations by non-state actors’ (2010) 33 Hastings International and Comparative Law Review 307. various circumstances, even if the state had no role in the violation.61
Human and Peoples’ Rights (African Commission) has held in circumstances applicable to the situation that occurred in Uganda:62 Chad has failed to provide security and stability in the country, thereby allowing serious and massive violations of human rights. The national armed forces are participants in the civil war and there have been several instances in which the government has failed to intervene to prevent the assassination and killing of specific individuals. Even where it cannot be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders. Chad therefore is responsible for the violations of the African Charter. Thus, state responsibility is the obligation of a state to make reparation when it has not complied with a requirement placed on it by international law. Thus, the International Law Commission has noted that states discharge their responsibilities for a breach of an international obligation by making good the harm by providing reparation for the injury caused.63 Various other institutions, including the UN’s Human Rights Committee and the Inter-American Court of Human Rights, have developed substantial jurisprudence on reparations and state responsibility, which provides that states are obligated in many circumstances to provide reparations.64 The Basic Principles therefore provide that the state should establish a national programme for reparations. It is also provided that reparation ought to be provided in proportion to the gravity of the violation. Uganda is a state party to the African regional human rights instrument, the African Charter on Human and Peoples’ Rights (African Charter). The African Charter has been interpreted in a number of cases to provide for the right to reparations. In 1995, in the case of Embga Mekongo v Cameroon,65 the African Commission held that the victim who had complained to the Commission was entitled to reparations for the prejudice he had suffered, but that the valuation of the amount of such reparations should be determined in accordance with the laws of Cameroon.66 In Malawi African 61 See further M Ssenyonjo ‘Accountability of non-state actors in Uganda for war crimes and human rights violations: Between amnesty and the International Criminal Court’ (2005) 10 Journal of Conflict and Security Law 405. See also Rose (n 60 above) 307. 62 Commission Nationale des Droits de l’Homme et des Libertés v Chad (2000) AHRLR 66 (ACHPR 1995) para 22. 63 Text and Commentary Article 6 bis, Part Two, in Report of the International Law Commission on the work of its 45th session, 3 May-23 July 1993, General Assembly, Official Records, 48th session, Supplement 10 (A/48/10) 143. 64 N Roht-Arriaza ‘Reparations decisions and dilemmas’ (2003-2004) 27 Hastings International and Comparative Law Review 157-220. 65 (2000) AHRLR 56 (ACHPR 1995). 66 As above. Directory: journals -> AHRLJ -> 2014 2014 -> African human rights law journal 2014 -> African human rights law journal 2014 -> African human rights law journal 2014 -> African human rights law journal 2014 -> African human rights law journal 2014 -> African human rights law journal 2014 -> Of inheritance 2014 -> Constitution 2014 -> Rights violations 2014 -> Addressing the Download 5.26 Mb. Share with your friends:
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