Notes on Reparations

Perpetrators are obliged to make reparation, not victims. The Indonesian government was the primary perpetrator in the overwhelming majority of serious violations of international criminal law during the occupation of East Timor. However, some of my East Timorese friends have asked for some briefing notes in preparation for the discussion in parliament tomorrow about their own government’s draft law on reparations.

The right of victims to Reparations is contained in UN General Assembly Resolution 60/147 of 2005, which states that victims have the following rights to Remedies:

(a) Equal and effective access to justice;

(b) Adequate, effective and prompt reparation for harm suffered;

(c) Access to relevant information concerning violations and reparation mechanisms.[i]

Reparations are therefore only one part of the Remedies to which victims are entitled.

In turn, there are five components of Reparations: restitution, compensation, rehabilitation,

satisfaction and guarantees of non-repetition.

Restitution: This means that the victim must, where possible, be restored to the original situation before the violations occurred. It includes return to one’s place of residence, restoration of employment, return of property, etc.

Compensation: This means that the victim must be compensated in proportion to the gravity of the violation and the circumstances of each case. In International Humanitarian Law, the right of compensation of individuals originates in Article 3 of the Fourth Hague Convention (HC IV)of 1907, which is reproduced in Article 91 of the First Additional Protocol to the Geneva Conventions (AP I):

Responsibility: A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.[ii]

Although Article 3 of HC IV was not originally intended to provide for individuals’ right to compensation, it now does, according to the Report of the International Commission of Inquiry on Darfur. This Commission stated that when the international obligation to pay compensation was first laid down in HC IV, and perhaps even when the Geneva Conventions were approved, it was seen as an obligation between States. However:

“the emergence of human rights doctrines in the international community” and “the right to an effective remedy for any serious violation of human rights has been enshrined in many international treaties”. Therefore, the Commission concluded, the obligation to pay compensation is now “assumed by States not only towards other contracting States but also vis-à-vis the victims, i.e. the individuals who suffered from those crimes. In other words, there has now emerged in international law a right of victims of serious human rights abuses (in particular, war crimes, crimes against humanity and genocide) to reparation (including compensation) for damage resulting from those abuses.”[iii]

According to the President of the International Criminal Tribunal for the former Yugoslavia (ICTY), Judge Jorda:

“The emergence of human rights under international law has altered the traditional State responsibility concept, which focused on the State as the medium of compensation. The integration of human rights into State responsibility has removed the procedural limitation that victims of war could seek compensation only through their own Governments, and has extended the right to compensation to both nationals and aliens. There is a strong tendency towards providing compensation not only to States but also to individuals based on State responsibility. Moreover, there is a clear trend in international law to recognize a right to compensation in the victim to recover from the individual who caused his or her injury.”[iv]

However, there is a misleading tendency to equate Compensation with Reparations, when the latter concept is actually much broader. As currently stated (4th July 2010), the draft law distinguishes between a National Commemorations Program for all victims and an Individual and Collective Reparations Program for “vulnerable victims” and “communities seriously affected by the conflict”. In this context, perhaps Reparations should be re-written as Compensation.

Rehabilitation means that victims must have access to medical and psychological care as well as legal and social services.

Satisfaction means that there must be a “search for the whereabouts of the disappeared”, the reburial of bodies “in accordance with the expressed or presumed wish of the victims”, a “public apology, including acknowledgement of the facts and acceptance of responsibility”, “Judicial and administrative sanctions against persons liable for the violations” and “Commemorations and tributes to the victims”.

Guarantees of non-repetition addresses the needs of the society rather than the needs of the victims. It includes such objectives as “effective civilian control of military and security forces”, “the independence of the judiciary” and “human rights and international humanitarian law education to all sectors of society”.

The definition of Victims: As currently stated (4th July 2010), the draft law defines victims as “A person who suffered harm” as well as “the spouse or any person who lived under analogous condition”, such as the widow, widower, descendants, ascendants and dependents, as the result of “a human rights violation that took place … between 25 April 1974 and 25 October 1999. However, the internationally-accepted definition is Victims is “natural persons who have suffered harm” and “organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.”[v]

The draft law states that all these victims are to be the beneficiaries of the National Commemorations Program. This is a huge category, potentially almost everyone in East Timor, because “Most individual East Timorese alive today have experienced at least one period of displacement. Many have experienced several”.[vi]

The draft law also defines a narrower category of victims, called “vulnerable victims”, who are “residing in Timor-Leste”. They are to be the beneficiaries of the Individual and Collective Reparations Program (in reality, the Compensation program).

These Vulnerable Victims are defined as:

i) Victims of torture;

ii) Victims of a human rights violation that resulted in the victim’s permanent physical or mental disability;

iii) Victims of the disappearance or summary execution of the spouse or of a person who lived with him or her under analogous conditions, descendants up to the 1st degree, and ascendants up to the 1st degree;

iv) Victims of the forcible removal of their parents while a child and for an extended period of time; and

v) Victims residing in Timor-Leste who suffered violations or sexual slavery, or who were born as a result of an act of rape or sexual slavery.

This is also potentially a large number of Vulnerable Victims.

The definition of “human rights violation”: the draft law defines human rights violations as “violation of international humanitarian law, violation of human rights and criminal acts.” This would include a large category of offences – much larger than war crimes. For example, even a murder becomes a war crime only if it is committed in the context of and associated with an armed conflict. That is, a murder is a war crime only if the killing was intended by the perpetrator to advance the interests of their military or political group or unit, otherwise it is a domestic crime incidentally committed. As currently defined, the draft law includes all criminal acts, whether they have a nexus to the armed conflict or not.

It should also be noted that there were two kinds of conflict in East Timor – an international armed conflict as well as a parallel non-international armed conflict. The international armed conflict was between Indonesia and Portugal. The parallel non-international armed conflict was between Indonesia and a non-state actor, namely Fretilin/Falintil, on Portuguese territory. This is because East Timor was not an independent state despite its Declaration of Independence on 28th November 1975.

The classic formulation of the criteria for statehood comes from the Montevideo Convention, 1933, namely that a state must have a legal personality, a permanent population, a defined territory, a government and the capacity to enter into relations with other States. Within the framework of the United Nations, Portuguese Timor had been a non-self-governing territory under Portuguese administration from 1960. After 25th April 1974, the new Portuguese government recognised the right of self-determination of the people of East Timor but the internal armed conflict (beginning on 11 August 1975) terminated the plans of the Portuguese Decolonisation Commission.

Fretilin’s victory in the internal armed conflict is not to be understood as the lawful expression of the will of the people of East Timor on the matter of self-determination. As a general proposition, the side that is more powerful militarily wins an internal armed conflict but this is not necessarily an indication of the will of the people. Military victories can depend on better weapons, better war-fighting experience, better strategy, and so on. In the case of East Timor, Fretilin’s victory certainly showed that it was more powerful than its opposition in military terms. However, Fretilin’s victory did not establish that the East Timorese people had exercised the right of self-determination. Although credible witnesses (such as James Dunn) have testified to Fretilin’s popular support, the fact is that the circumstances in East Timor at the time did not permit the holding of a ballot on independence. Such a ballot – which was not held until 1999 – would have constituted a valid exercise of self-determination.

Due to the military pressure exerted by Indonesia at the time, the factual conditions for statehood were not satisfied. By the time of the Declaration of Independence on 28th November 1975, Fretilin was not in administrative control over the territory and people: Indonesian forces had made incursions into Atsabe, Bobonaro and Suai from 14th September, had seized Batugade on 8th October, Balibo on 16th October and Atabae on 27th November. Thus the factual criteria for statehood were not fulfilled.

Furthermore, Fretilin’s declaration of independence was not widely recognised internationally. Although the Indonesian invasion was opposed in the UN General Assembly and Security Council and not recognised widely, these very resolutions recognised Portugal as the ‘administering power’ in East Timor and supported the right of self-determination of the people of East Timor. Fretilin dropped its own campaign to gain recognition of the Democratic Republic of East Timor because not many states were prepared to extend recognition. Instead it campaigned on the basis that East Timor was a non-self-governing territory with a right to self-determination. Although the Portuguese authorities had withdrawn to the island of Atauro, they had not left East Timor; Atauro was and is part of East Timor. Nor had Portugal renounced its sovereignty over East Timor. Its administrative control had been weakened substantially but no other state had established a better legal title.

Fretilin forces were not a levee en masse of civilians spontaneously resisting the Indonesian forces because they were well-organised, were subject to their own structures of command and control, carried their weapons openly, and wore a fixed distinctive sign identifying them as Fretilin/Falintil. Therefore Fretilin were participating in a non-international armed conflict rather than in ‘banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law’[vii].

Although Portuguese forces were not opposing Indonesia militarily, the Indonesian invasion of East Timor was an attack on Portuguese territory because Indonesia was using military force on Portuguese territory without Portugal’s permission. Therefore Indonesia’s military forces were engaged in an international armed conflict but Fretilin, as a non-state actor, was engaged in a parallel non-international armed conflict; Fretilin was not acting under the control of, or connected with, Portugal because its raison d’etre was the termination of Portuguese rule.

Traditionally, war crimes law has applied in international armed conflicts only. Such crimes must have a nexus with the armed conflict. That is, they must be committed in the context of and associated with the armed conflict. The killing must be intended by the perpetrator to advance the interests of their military or political group or unit, otherwise it is a domestic crime incidentally committed. The victim of the crime must be a protected person. Persons are “protected” under article 4 of the 1949 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War if they “at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” According to the ICRC Commentary to Article 4, being “in the hands of a Party” is used in an “extremely general sense”. There is no requirement that persons, in order to be considered protected, should have fallen into the power of the enemy or find themselves in the hands of a party to the conflict. The relevant test was applied in the ICTY Trial Chamber in the Tadic case: whether, at the time of the offence, the victim was directly taking part in the hostilities, that is, the hostilities in the context of which the alleged offences were committed. Protected persons can include military personnel who have laid down their weapons or have been captured.

During the negotiations to the four Geneva Conventions, many states opposed their application to internal armed conflicts, preferring to deal with ‘internal matters’ such as rebellions without external interference. However, they agreed to include in each of the four conventions an article containing standards of behaviour in internal armed conflicts. This is Article 3. Since it is the same in all four Conventions, it is known as Common Article 3. It applies only in internal armed conflicts. However, since Common Article 3 did not contain any “grave breaches” provisions, violations were not criminalized.

By the 1990s, internal conflicts had become more frequent and more severe, and had greater consequences for neighbouring countries. There was also greater awareness of the importance of human rights. Accordingly, the International Criminal Tribunal for the former Yugoslavia held that some war crimes provisions were applicable in internal conflicts. However, the laws of international armed conflict could not be imported in their entirety into internal armed conflicts; there was not ‘a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.’[viii]

When the UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) in November 1994, it was dealing exclusively with an internal conflict. It therefore recognized explicitly that serious violations of Common Article 3 were criminalized for the purposes of that tribunal. Serious crimes allegedly committed by Fretilin/Falintil sometime after November 1994 are international crimes (and would be subject to the jurisdiction of an international tribunal). Serious crimes allegedly committed by Indonesia anytime from 1975 to 1999 are international crimes (and would also be subject to the jurisdiction of an international tribunal).

[i] UN General Assembly Resolution 60/147, 16 December 2005, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/496/42/PDF/N0549642.pdf?OpenElement

[ii] Available at http://www2.ohchr.org/english/law/protocol1_2.htm

[iii] Available at http://www2.ohchr.org/english/law/protocol1_2.htm

[iv] UN doc. S/2000/1063, available at http://www.undemocracy.com/S-2000-1063.pdf

[v] Rule 85, International Criminal Court Rules of Procedure and Evidence, UN doc PCNICC/2000/1/Add.1 (2000).

[vi] CAVR Executive Summary, p 73.

[vii] Tadic (Appeals Chamber) Case No IT-94-1-AR72, 2nd October 1995.

[viii] ICTY, Tadic Appeals Chamber Judgement, 2 October 1995, para 126.

Dr Clinton Fernandes

Senior Lecturer

School of Humanities and Social Sciences

UNSW@ADFA

Canberra ACT 2600

The standard UNSW@ADFA disclaimer applies to the contents of this email

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