Associate Prof, Izzeldin eltayeb Adam
Dean of Faculty of law, El-Neelain University, Sudan
The idea of compensating the victims of the events in Bahrain was raised, since the king announced the establishment of a fund to compensate those affected , vide the royal decree No. 30 issued on 22/9/2011; followed by another royal decree No. (13) for the year 2012 on the system of the Fund’s work. The work of the Fund was activated last month, and was started with paying of cash compensation to those affected. The following article highlights the concept of reparations in both the International ?aw, and human rights organizations’ perception. It does also emphasize the significance of compensation in addressing post- crisis problems.
The concept of post-crisis compensation embodies the idea of the interrelationship between development, security and human rights, by removing the effects of destruction and devastation left by the wars between nations, and the civil conflicts that may assume various banners and objectives , e.g. resources, identity, liberation , self-determination , etc., but share the same characteristics of violence and brutality and the tendency to cause mass destruction to the institutions of both the state and society, that could lead sometimes to the obliteration of the state’s foundation and infrastructure .
The concept of compensation in the law:
It’s an obligation imposed by international or national law to reflect the impact of international responsibility, civil or criminal liability under national norms, as a result of a violation by a legal person to their commitments under the law. As such it is a consequential commitment that follows the commission of an unlawful act. Therefore, if proven, the injured party would be authorized, in the face of the perpetrator of the illegal act, an access to compensation adequate enough to redress the damage?
The reparation in damages may take the form of a return in kind, by re-as to what it was before the occurrence of an unlawful act, and it is called (compensation in kind) .; Compensation may come in the form of a cash payment when the return in kind is not possible or impossible, or does not cover the entire damage, and is called (Cash Compensations); compensation may take the form of appeasement or sometimes an apology by the person responsible for the illegal act to the victim. Finally, compensation may be provided in the form of guarantees of non repetition of such an act in the future.
The concept of compensation according to International Organizations:
International organizations, governmental and non-governmental, have a special definition to the compensations associated with human rights and the issues of full compensation. In this regard Amnesty International defined full compensation by saying: (The right to full and effective compensation is a fundamental right of all victims of crimes of genocide, crimes against humanity, war crimes, crimes of aggression, torture, and cases of extrajudicial executions and enforced disappearance).
Amnesty emphasizes the significance of compensation as an important and necessary mean to address and remove the effects of the suffering of the victims caused by the grievous crimes, so as to help them rebuild their lives and forget about the psychological effects, in order to integrate back into society.
Amnesty International Classification of compensation:
Case response to restore situation that existed: means the set of actions aimed at restoring the victim to the normal original position that existed before the crime, including the restoration of freedom first, and then returning to their original residence or to a function they had occupied, along with restoration of the property that was taken away or been destroyed.
Compensation: It is a financial grant (monetary payments) made as compensation for damages that can be estimated economically, such as physical or mental injury, along with the loss of opportunities in education, employment, and other social benefits, and loss of income. The moral damages include compromising human dignity, reputation and honor.
Rehabilitation: Is intended to provide medical and psychological care, alongside other legal and social services.
Satisfaction: It means the provision of public apology to the victims of conflicts and the revival of their memory, and the search for places of the abducted persons, and to locate the bodies of the victims who were killed.
Guarantees of non repetition of crimes: A set of legal procedures seeking to extend a guarantee not to repeat the crimes or expose the victims to other crimes. Among these procedures:
• Strengthening the independence of the judicial authorities.
• Training law enforcement officers from police, army or security forces on human rights issues. • Reforming the norms that have contributed to the occurrence of crimes or allowed its occurrence , to make compatible with international standards regarding the independence of the judiciary and respect for international conventions and agreements on human rights and fundamental freedoms.
Legal nature of the compensation:
The International jurisprudence and judiciary confirmed the legal nature of compensations through decisions of arbitration and the decrees of international courts; where the English jurist Oppenheim confirmed that: (The basic legal effects of violation of international law are compensation for material and moral damage that has occurred). In other words, it is a legal obligation that falls upon the state, which shoulders the international responsibility for violating an international obligation for compensation for damage caused.
In that respect, the Permanent Court of International Justice in one of its famous rulings in 1927, stated that :- ( The violation by the State of its obligations entails an obligation to repair the damage).
General principles in the identification and quantification of compensation:
The Permanent Court of International Justice Established, the above-mentioned general principles that can be referred to when assessing and determining the compensation to be performed due to breach of international law. It said: (the fundamental principle upon which stands the theory of an illegal act, is the principle which has settled in international practice, and was applied in international arbitration decisions that the compensation is required whenever it is possible to restore the situation that existed before the unlawful act was committed and is called compensation in kind, especially in property and economic loss. When the restore is not possible or it does not cover the full damage, compensation shall be in cash, a so-called : material compensation. Compensation may be in the form of moral satisfaction or an official apology provided by the person responsible for the unlawful act to the injured person).
It is noted that the damage , whether material or moral , can always be compensated financially.
On the other hand, with regard to the draft law of international responsibility, Arangio Ruiz, Special Reporter of the International Law Commission explained that the compensation and satisfaction: ( are not classified as sentences , because the purpose of reparations is the return of peace between countries and not for punishment and revenge. He said that a distinction has been made with absolute certainty between paying money by way of compensation, or for the purposes of punishment, with complete exclusion of the latter from the concept of compensation).
The scope of compensation:
The determination of the scope of compensation is linked primarily to the investigation of the damage caused by the unlawful act; the rules of legal liability of all kinds (international - civil - criminal) constitute a legal range for compensation that entails obliging the persons who commit acts against the law, to compensate for the damage that resulted from such illegal acts.
According to this concept the jurists agreed unanimously on the importance of the occurrence of injury before a claim of responsibility could be presented. However, this Agreement did not, in fact, prevent the emergence of three trends of jurisprudence on the necessity for the presence of damage within the scope of responsibility.
The first trend: the view that the presence of damage is a necessary condition for the establishment of responsibility. In other words, the mere breach of a person legal obligation is not sufficient for the establishment of responsibility. In accordance with this trend injury is a fundamental element without which no responsibility could be established (No liability without damage).
The second trend: Considers the damage to be a fundamental element in the presence of the illegal act itself, along with two other elements:- (a) the objective, which means that the content of the illegal act is in violation of international obligations. (b) The personal element: The attribution of that conduct to an international legal person. According to this view (The illegal act exists only if it was contrary to the obligations of an international person towards another international one that results in causing damage to the latter).
The third trend: View the damage as inextricably linked to the internationally illegal act. Wherever the latter is found the damage would be there. Proponents illustrate by saying: (The right to compensation arises from the moment you commit the illegal act).