Addressing challenges for the application of existing legal standards of reparation to domestic reparation programmes in transitional justice contexts
The right of individuals to reparation is well established in international human rights law (IHRL) and States have an obligation to provide adequate and effective reparation. Transitional justice (TJ) is a process whereby societies transitioning from authoritarianism to democracy or from conflict to peace address past violations through mechanisms of truth, justice, reparation, and guarantees of non-repetition. Reparation in TJ is often provided through domestic reparation programmes (DRPs), an out of court process that provides better access and quicker reparation for victims. However, TJ States often have to provide reparation to large numbers of victims while facing many competing obligations and scarcity of resources. This has led to claims that the existing legal standards of adequate and effective reparation are impossible to fulfil and inappropriate for DRPs in TJ contexts. These claims are however made without much analysis of existing legal standards, to what extent they are unsuitable for DRPs in TJ contexts, and what standards to apply instead. This thesis aims to clarify these issues. Looking at case-law from regional human rights systems and UN treaty bodies, it provides an original and in-depth analysis of legal standards of reparation in IHRL. This thesis also explores the nature of DRPs and the specific challenges of providing adequate and effective reparation in TJ contexts. It finds that the standards developed by the IHRL framework are usually unworkable for DRPs in TJ contexts. Therefore, this thesis suggests a novel re-interpretation of the standards of adequate and effective reparation for DRPs in TJ contexts, based on the dual purpose of reparation in TJ, which takes into account all TJ factors, including the number of victims and available resources. This would allow States to consider what reparation is adequate and effective both for the victims and for wider society undergoing a TJ process.
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