Ekaterina Sivolobova, a student in the Faculty of Law at the University of Buenos Aires, Argentina, writes about the failure of the Uruguayan Reparations Law to address Uruguay's responsibilities under international law...
ne of the legal consequences of failing to protect victims of human rights abuses is the state's obligation to provide full reparations for the wrongful act committed (Draft Articles on Responsibility of States for Internationally Wrongful Acts
, Articles 28 and 31). The responsible state has no justifications for failing to do so (Draft Articles, Article 32). Although most serious violations, by their nature, are irreparable, reparation is an act by which the truth is acknowledged along with victims and their dignity. As a rule, the right to reparations must reflect the gravity of the violation; it must be "proportional to the gravity of the violations and the harm suffered" (UN Principles on Reparation
, Principle 15).
In October 2009, Uruguay enacted law 18.596 (also known as Uruguayan Reparations Law), which recognizes the right of victims to receive reparations for the human rights violations committed by the State between June 1968 and February 1985. With the Uruguayan Reparations Law, composed of 24 articles, the State recognizes for the first time its failure to protect fundamental human rights, in addition to its participation in systematic practices of human rights violations, such as torture and forced disappearances. Although this is a positive step towards complying with international standards, the Uruguayan Reparations Law remains restrictive. More disturbingly, and paradoxically, it acts as an amnesty law in disguise.
To properly identify the failures of law 18.596, the fundamental principles of reparations will be considered against the articles manifested in this law. The UN Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (hereinafter UN Principles on Reparation) has laid out five fundamental principles of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
The first principle stated in the UN Principles of Reparations is restitution (restitutio in integrum). This principle is the primary form of reparations since it looks to "restore the victim to the original situation before the gross violations." However, in practice, the possibility of restoring the victim to his or her original situation is close to impossible. Restitution includes: restoration of liberty; enjoyment of human rights, identity, family life and citizenship; return to one's place of residence; restoration of employment; and return of property.
The Uruguayan Reparations Law makes reference to various laws covering some aspects of restitution. Some of the laws it refers to are: Law on the reinstatement of dismissed government employees (Law 15.783); Law on persons who were obligated to abandon the country (Law 17.449); Laws on the recuperation on pension and retirement benefits (Law 17.949 and Law 18.033); and Law on the declaration of absence of the forcibly disappeared (Law 17.894).
Although these measures try to achieve some measure of status quo ante, they might not be sufficient. As an example, the Reparations Law fails to decriminalize the acts for which victims were arrested, and it does not require for the State to return victims' property expropriated during the dictatorship.
Compensation, as defined in the UN Principles on Reparations, is a form of reparation that provides economic compensation for human rights violations. Important aspects to be considered in determining appropriate compensation include: physical or mental harm; loss of opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
Those who will be compensated under the Uruguayan Reparations Law include the families of the disappeared or killed, the families of the children who disappeared for more than 30 days, irrespective of whether their identities have been revealed, and those who suffered grave harm. The law does not offer any monetary compensation to families or dependents whose family members were imprisoned, in many cases for years.
The Uruguayan Reparations Law establishes compensation for a very limited group of victims, and the amount of compensation is the same regardless of individual circumstances. In other words, all families will be paid the same amount, without considering the different circumstances and different damages (e.g., loss of earnings). Furthermore, the reparations law does not attempt to provide compensation for the loss of opportunities, for the loss of earnings and earning capacity, moral damage and costs of legal actions taken by victims' families.
Victims of human rights abuses are also entitled to receive other forms of compensation, such as rehabilitation. Rehabilitation includes measures to promote physical, psychological and legal and social services "for as full rehabilitation as possible [sic]" (Article 14 CAT).
The measures of rehabilitation in the Uruguay Reparations Law are few and limited in scope. The Reparations Law provides medical services free of charge as well as psychological rehabilitation, but only to those victims who suffered a violation of their physical and psychological integrity and who were imprisoned for more than 6 months. This limited group excludes all families of victims.
Satisfaction is also a form of reparation and helps restore dignity to the victims and their families. Satisfaction should include a judgment against the perpetrators of the crime, but this should be accompanied by a public acknowledgement of the truth and the recognition of the state's responsibility for wrongdoing. In addition, satisfaction can include public commemoration, which has the symbolic value of memory and justice. Public commemoration can take the form of naming streets after victims or creating public places dedicated to the victims.
Satisfaction measures in the Uruguayan law have helped to restore dignity to the victims to a limited extent. The state, among other things, has recognized its responsibility for the wrongful acts committed during the dictatorship and has created public spaces to commemorate the victims. Nevertheless, the law does not mention if the government will acknowledge this responsibility publicly or if it will only remain in the form of a law. Furthermore, the state fails to grant other possible measures of satisfaction (compared to the reparation law from Peru Law N. 28.595), such as reconciliation acts in coordination with the victims, creation of a remembrance day for the victims, creation of a victims registry and individual letters sent to the victims and their families recognizing state responsibility.
Measures of satisfaction in the Uruguayan Reparations Law, unfortunately, are limited in extent.
GUARANTEES OF NON-REPETITION
Whereas an admission of wrongdoing helps restore victims' dignity, guarantees of non-repetition ensure that those human rights violation will never again occur. Guarantees of non-repetition include, inter alia, judicial, institutional and legal reforms; human rights training; effective control over military and security forces; protection of legal, medical, media and related personnel and human rights defenders; and observance of international human rights. In the Uruguayan Reparations Law, the principle of guarantees of non-repetition is not mentioned.
URUGUAYAN REPARATIONS LAW - ARTICLE 22
Victims of human rights violations have a right to truth, justice and to reparation. States have the obligation to ensure effective enjoyment of these rights guaranteed in international law. Under no circumstances should victims give up any of these rights for an exchange of the other, such as the right to seek justice.
The Uruguayan Reparations Law surprisingly includes Article 22, which prevents a victim who has agreed to receive any form of reparation from seeking legal remedy. Article 22 of law 18.596 reads: "Any [person] who takes advantage of the benefits/reparations allowed under this present law is prohibited from taking future action against the state of Uruguay, in any jurisdiction, whether national, foreign, or international."
Even without other limitations imposed by Uruguay's law 18.596, Article 22 alone delegitimizes the reparations law since it predicates the right to reparations on a waiver of the right to justice. Article 22 can thus be interpreted as an offer of reparations only to those willing to stay quiet. In fact, reparations and the responsibility to accord victims justice are never optional measures, but rather legal consequences of wrongdoings by the state.
Unfortunately the Uruguayan law was approved and entered into force on October 2009. After decades of waiting for justice to be done, some victims might find the decision of whether to exchange possible legal remedies for reparations difficult - some victims might view it as a "better than nothing" deal.
Nevertheless, I do hope that victims will reject this Uruguayan Reparations Law in a symbolic affirmation of their legal rights and dignity and patiently wait (a little longer) for the decision by the Inter-American Court of Human Rights in Gelman [PDF]. Gelman is the first case before the Court against Uruguay, where the state's failure to provide justice and reparations for human rights violations during the dictatorship will be questioned and subjected to international standards. Victims of the Uruguayan dictatorship and international observers of human rights anxiously await and hope for a decision that, inter alia, will shed light on these fundamental principles of reparations.