Reparations: To What End? Developing the State’s Positive Duties to Address Socio-economic Harms in Post-conflict Settings through the European Court of Human Rights
Felix E Torres, University of Birmingham.
Despite being conceived as a framework to protect civil and political rights in peacetime, the European Convention on Human Rights is currently being applied in states affected by armed conflicts with challenging socio-economic demands. Because of this, it is critical to examine whether the protection framework developed by the European Court of Human Rights is well suited to cope with the socio-economic challenges that arise in post-conflict settings.
Two aspects of the Court’s remedial practice are worth examining. First, the scope of the states’ duty to make reparation, which is to say, the rules established by the Court that determine which persons have the right to receive reparation for human rights violations and in what circumstances. Second, the factors that influence the calculation of compensation for non-pecuniary damage. After analysing these two aspects, it becomes clear that the Court’s remedial practice is more oriented towards the objective of sanctioning or correcting state misconduct rather than addressing the impact of widespread violence on the socio-economic well-being of victims.
This situation is problematic if one takes into account that, after violations, victims tend to use resources they receive as reparations to address socio-economic shortcomings. That being the case, victims affected by conduct not attributable to the state may end up without access to resources that are important for them to face daily life. Likewise, the Court ends-up varying the amount of compensation by considering the way in which the state’s conduct is qualified, rather than the impact of violence on the victims’ socio-economic wellbeing.
The Court’s remedial practice could be justified in terms of the pursuit of ‘corrective justice’, ‘relational justice’ and ‘deterrence’. Corrective justice refers to the imperative to wipe out the consequences of wrongdoing and restore the situation that would have existed in the present had the wrongdoing not been committed. According to this approach, reparations should not seek to make victims better off, but should be limited to compensating specific harm that results from wrongdoing. Relational justice highlights the importance of addressing the way in which state authorities behave towards people more than the states of affairs that result from state conduct. Deterrence seeks to prevent perpetrators from committing wrongdoing again and is not concerned with the impact of past violations on victims. Hence, the Court’s emphasis on sanctioning state conduct, instead of addressing the consequences of violence on victims, could be justified on the grounds of corrective justice, relational justice and deterrence.
However, the pursuit of these objectives can easily be overwhelmed by the dynamics of armed conflict. Owing to this, the Court should focus on the impact of violence on victims and shape remedies accordingly. This means that considerations of who the perpetrator of violations is and how the state’s conduct is qualified should not influence access to reparations.