Frequently Asked Questions- Reparations
1. What are reparations?
Reparations are a measure which serves to acknowledge the legal obligation of a state, or individual(s) or group, to repair the consequences of violations on victims— either because it directly committed them or it failed to prevent them. Reparations can be material and symbolic, individual and collective and include financial compensation, as well as restoring civil and political rights, erasing unfair criminal convictions, physical rehabilitation, and granting access to land, health care, or education. Sometimes, these measures are provided to victims’ family members, often children, in recognition that providing them with a better future is an important way to overcome the enduring consequences of the violations.
2. Why are reparations necessary?
Through reparations the state expresses to victims and society more generally that the state is committed to addressing the root causes of past violations and ensuring they do not happen again. At the same time, the end of the war does not mean an end to the pain and suffering endured by victims. Many Sri Lankans of different backgrounds still suffer the impact of violations including physical disability, psychological trauma, loss of property, poverty, marginalization and other forms of harm. Reparations are a method of alleviating the enduring suffering, but also can empower entire communities and restore them as rights holders and equal citizens.
3. How can reparations help victims of violations?
Victims have a right to reparations and this is not a matter of pity but the state’s legal obligation towards those who suffered violations. In fulfillment of those rights, reparations can address the impact of violations in order to:
Alleviate immediate suffering – providing basic needs and support to poor and vulnerable groups (E.g.: disabled persons or households where the primary wage earner is missing or dead)
Recognize and eliminate structural violence – acknowledging and addressing long term discrimination against marginalized groups (E.g.: acknowledging and addressing practices of denial of basic rights to land, health, education, language etc. and sexual violence against women)
Restitution – restoring people to their previous conditions (E.g.: giving back land, property, or basic rights such as voting and citizenship to those displaced)
Provide a measure of justice – material and symbolic benefits are important to victims because they are often seen as the most direct and meaningful way of receiving justice
4. How can the state make reparations?
The future Office for Reparations will develop precise policies and criteria regarding forms of reparations. In doing so, it can consider that the state, in recognizing its legal obligation to make reparations to victims, can award different forms of reparations including:
Restitution – returning their lives to the original state before violations occurred (returning liberty, identity, citizenship, property etc.)
Compensation – payment for financially assessable damages
Rehabilitation – provision of medical and psychological care and legal and social services, education and other needs stemming from the impact of violations
Satisfaction – acknowledgement of atrocities, public apologies, search for the truth etc.
Guarantees of non-repetition – legal or cultural reforms to prevent recurrence
5.What is the difference between individual and collective reparations?
Different individual victims will have different needs because of the different impact violations had on their lives. The type of reparation needed is determined in relation to such impact. For example, families of the disappeared person will require some of the same forms of material reparations that other victims need, but there may also benefit from legal and personal measures specifically aimed at repairing the consequences of enforced disappearance. The type of individual reparations can also vary according to the victim’s economic or social class, gender, age, and identity. Women, for example, experience violations in significantly different ways than men. Their experiences are not limited to the consequences of sexual and other forms of gender-based violence but often include the economic and social burdens of being single breadwinners as a result of their partner’s fate.
Collective reparations aim to redress groups, communities, and even regions which were systemically targeted. They aim to address the causes and consequences of violations that affect people from the same region or community or who share the same identity or experiences of violations.In designing reparations policies it is important to note that individual reparations might intersect with humanitarian relief programs, and the design and delivery of collective reparations may intersect with development programs. Such overlap is inevitable because many of those who are vulnerable to human rights violations are also the most economically and socially vulnerable in society.
6. Who is eligible for reparations?
Reparations are not given on the basis of the victims’ ethnic or religious background, or belonging to
any particular political group and all Sri Lankans are equal under the law, which stipulates that reparations can be awarded to “aggrieved persons” who are victims of:
violation of human rights or humanitarian law (as contained in the First, Second, Third and Fourth Geneva Conventions of 1949)
families of persons killed or missing as a result of such violations
It is important to note in order to be eligible for reparations under this law, the aggrieved persons had to suffer such violations in the course of, or in relation to:
The conflict which took place in the Northern and Eastern Provinces or its aftermath;
In connection with political unrest or civil disturbances; or
In the course of systematic gross violations of the rights of individuals, groups or communities of people of Sri Lanka; or
Due to an enforced disappearance as defined in the International Convention for the Protection of all persons from Enforced Disappearance Act, No. 5 of 2018
7.Is this the first time Sri Lanka is awarding reparations to victims?
Reparations are not new for Sri Lanka. The Rehabilitation of Persons, Properties and Industries Authority (REPPIA) played an important role in trying to repair victims of conflict and natural disasters, but it also faced significant challenges. It is time to strengthen the capacity of the State to reach out to victims of violations, to consult with them, and to establish appropriate individual and collective forms of reparation. The new legislation on reparations will establish an independent authority – Office for Reparations – which will be able to receive all aggrieved persons, without any discrimination due to ethnic, linguistic, religious, gender or other background. This authority will determine the best and most comprehensive form of reparation, taking into account the gravity of the violations, the type of needs, the capacities of the State and the special need to protect those most marginalized.
There has been disappointment and dissatisfaction among victims surrounding their past experiences of reparations. According to the Consultation Task Force report, the promise of reparations has faced barriers and/or biases due to the inadequacy of administrative processes.
In some instances, reparations were intentionally refused, delayed or not paid at all. Victims of non-payment, delays, and refusal of restitution included those forced to flee from their homes that were looted and burnt down, refugees returning to Sri Lanka who have not received a resettlement grant or access to housing schemes for returnees and who still require shelter, displaced individuals whose land ownership documents have been destroyed or whose private land is still occupied by security forces.
Inadequacy in compensation has been reported in two aspects. In some cases compensation provided was not proportional to the loss incurred.
There has been a general lack of clarity regarding the basis/criteria on which compensation is calculated and provided.
Injuries and losses of some groups are not recognized or given adequate attention by authorities as they are not overtly visible. This includes internal/ hidden physical injuries, psychological trauma, victims of sexual abuse, vulnerable and indigenous communities.
Coercion and intimidation by officials has been a reported problem.
8.Will accepting reparations prevent victims from obtaining truth and justice?
There have been some objections and even refusals to accept reparations in the past. This is not because these individuals or families did not want or need reparations, but because they feared they would lose other avenues to truth and justice if they accepted:
o Some families face the loss/disappearance of their loved ones and do not want reparations until they are provided with the truth about what happened. They fear that accepting reparations will mean to be compensated for and accept their loss and to give up searching.
o Some families refuse to accept reparations as doing so could prevent getting justice for crimes committed.
However, it is evident that these victims face an urgent and immediate need for reparations in order to meet their basic needs such as food, shelter, and livelihood.
The law on reparations does not in any way imply that those aggrieved will lose their right to pursue justice and truth, on the contrary. Receiving reparations shall not hinder the right of any person to pursue justice in the courts of law, and the reparations authority will cooperate closely with the Office on Missing Persons to ensure integral attention to the rights of the relatives of the missing in the search of the truth about their fate. The reparations law provide more justice for all Sri Lankans who were victims of violations, not less.