Transitional justice, reparations and the Republic of Armenia

The material is published in collaboration with the “Enlight” Public Research Center NGO and the “:Boon” scientific-cultural foundation.

Transitional judicature or transitional justice?

Before speaking about these issues, we should discuss these terms. Transitional justice term was used by the American scientists in 90s, which was meant to describe new political systems in old countries directed not only to people rights and freedom but also  the problems resulted by the violation of humanitarian rights. Generally, humanitarian rights were violated at the time of the previous government.

Some reputable  theorists describe transitional justice as a legal, moral, and political answer to the authoritarian and repressive regimes about breaking people’s rights and freedom.[i] So, as we see from this context “justice” term (which is the same for both judicature and justice) has been used not for its narrow sense as a judicature but its board sense as justice, because the main theme of this article is not the judicature as a function of courts.  As we will see below, the acts of transitional justice include more social-political elements (such as being sorry, paying tribute, etc.) than legal elements, and judicature is inappropriate in such case. It is another question that in countries such as the USA and UK legal culture has a long history, it isn’t problematic to use justice term and not to define it, which  indicates the high level of legal awareness, but as for Armenia such step can provide a lot of discussions and create positive demand directly to define justice. Nevertheless, circumstances of verbal thinking and legal culture don’t change situation and advantages of usage in original or context. We think that the translation of the term with content mismatch isn’t competent, especially when it can bring over the constitutional controversy. The context and cases of usage of this term, the approaches used by the theorists and in practice have shown that justice noun should be translated as fairness and not as a judicature.

In English legal systems, “justice” term is used directly and isn’t defined by any legal acts. Even in these cases, misreading is absent. The situation is different for “judicature” term because the scope of the usage of this term is narrower. It’s known that judicature is the exclusive license of courts (including in the Republic of Armenia[ii]), it is also one of the bases of separating and counterbalancing of powers. Public political authorities, including courts, aren’t involved under transitional justice circumstances, such as reparative or fact-finding teams’ working cases. Moreover, reparatory committees functions don’t intersect functions or/and licenses of courts in any case.

As for Constitution of the Republic of Armenia, “Transitional” and “Judicature” terms are incompatible. First of all, The Constitution consists of legal statements, which outline the vision of legal development of the Republic of Armenia, so it is a long-term and fundamental legal act but not transitional, besides, it is the highest level of legal hierarchy. The translation of “Transitional Justice” term as a “Transitional Judicature” brings over the serious controversy between courts’ exclusive license and practiced methods during the transition period. As a result, we deduce the situation where the state authority belongs to an unlicensed organ.

It is another matter that the main reason for this debate is one of the demonstrations of transitional justice: coverage of procedural instrumental composition.

“Transitional justice” term and its demonstrations

Transitional justice is an affiliated system of methods and means, which countries use after conflicts, reparations and political crisis to reactivate politico-legal toolkit, which is aimed to revive justice, the complete functionality of public powers, to compensate victims and to provide the defense of rights and freedom from ignoring.

Reparation as an act of transitional justice

Reparations are compensations given to victims for violations of their rights and independence. Who can be considered as a victim in a transitional justice context? According to the document named as main principles of reparations defined by UN[iii], victims are people, who individually or collectively bear the physical or mental loss, emotional stress, economic loss, or their rights are devalued by criminals’ activity or inactivity of breaking human rights or international humanitarian rights. “Victim” term can also include the family members of victims, besides the people who tried to help them.

So, during giving the reparations either some groups of people (for example people suffered from economic policy got compensations in the Republic of Peru[iv], invalids, orphans, women had priority to get compensations in the Republic of Sierra Leone and the Democratic Republic of Timor-Leste[v]), or victims of specific activities can be targeted (for example victims in the Republic of Kenya didn’t get compensation for their correspondence to the standards but for they were victims during 1963-2008yy[vi]).

The compensations practically can act differently: from financially to moral-ethically and psychologically. We should take into account that the usage of reparations doesn’t expect to foil legislative branches’ activity or doing impossibility. The latter is accepted even during the regime change when it’s an attempt to become a more democratic paying tribute to victims of the previous government, involving them to public-political activities and making them important.

According to international law, reparations are aimed to reestablish victims’ rights making the responsible party compensate for the loss.[vii] This treatment incarnates the compensation principle defined and provided by domestic and international legislation.[viii] In conditions of the development period of jurisprudence during making transitional justice, reparations are continuously accepted and used more often.[ix]

Reparations include complicated systems are under development and innovations and aren’t limited with financial compensations only. The Reparative transitional justice has six types of acting:[x]

  1. Restitution,
  2. Compensation,
  3. Recovering,
  4. satisfaction of the demands of victims,
  5. Guarantee about the exclusion of repetition of breaking victims’ rights,
  6. Tribute, memory.

Restitution defines ignored rights compensation, such as property rights recovery.[xi] Compensations have a monetary expression for material and non-material loss. These are used in case of property damage. But it doesn’t mean that in case of health damage there is no financial compensation. There were some countries where transitional justice spread crimes that had long overdue, and despite that overdue, the victims of those crimes got compensations.

As for satisfaction of demands of victims, the damage of such cases are under public recognition and can be considered as a please of forgiveness in public order.[xii]

Giving a guarantee about the exclusion of repetition of breaking victims’ rights is a quite long process which is shown on a political background of the new regime and new powers. The mechanism of this process is here: government, public power sentences actions of criminals and/or previous government accept and recognize victims and their ignored rights. These actions are correspondent with the definition of making transitional justice as it’s an essential step of recognition and elimination of ignorance of human rights. By accepting and recognizing this government guarantees and presents its negative attitude to actions like that, so the government has to forbid its repetition.

One of the advantages of reparations is that the latter is the political center and pay attention to victims. One of its proofs is the recovery programs for compensation of psychological and moral damage. In such cases, reparation acts when psychologists work with victims, or some actions are taken to provide resocialization of victims. One of the recovery versions is the opportunity given to victims to do a plastic operation and get their previous appearance. So transitional justice takes place not only without using any criminal-legal instrumental composition but also without instantly giving financial support.

The victims that demand and get reparations are sometimes called “bad victims” in literature because they “prevent” the development of the new regime[xiii], and they consider their benefits higher demanding compensation their losses. Such victims are called “beggars” or “bloody money” applicants.[xiv]While speaking about reparations necessary attention and importance aren’t paid to those subforms such as recovering, the satisfaction of demands of victims, paying tribute, memory[xv]. Those subforms aren’t expressed enough. The main function of those subforms is resocialization and valuation of each victim. We shouldn’t forget that belief in political organizations, including the government, comes back due to reparations, so one citizen or personality is added to human resources as the most important resource of the country.[xvi] By this way, each person finds him as a real source of government because each victim participates in the creation of reparation.

Importance and efficiency of reparations are seen when it is considered a two-vector act of transitional justice.

Reparations and Judicial Power. European Court of Human Rights and transitional justice with the reparative act

As for Northern Ireland  European Court of Human Rights improve strong and precedential practice come from universal principles of rights, which defines, that government is responsible for investigating deaths caused by actions of the government, indicating that surveys should be complex and include members of victim’s family. ECHR proves that surveys should be the basics for compensations in case proofs are sufficient.[xvii]

In cases, when main damage is given to ownership, precedential practice ECHR supports transitional justice and reparations. So in this case more critical problem is the victim has lost his right to use his property and get profit from it than the fact that his rights have been broken.[xviii]

Contribution and acceptance are underlined during illustrational actions in transitional justices’ context in ECHR precedential right, but in this case, public and private interests should be balanced.[xix]

Republic of Armenia and reparations.generalization

We have mentioned above why we should use “transitional justice” term. Discussed situations, possible acts have shown that making transitional justice through reparations will not bring any constitutional controversies. So supporting classic definition Constitution of the Republic of Armenia will save the highest level of legal hierarchy, will continue mentioning the politico-legal development vision and will not be broken even at the transitional period, so reestablishing its role and significance in legal country’s and civil society’s conditions.

It was claimed that no researchers had been done about massive violations yet, that could prove the necessity of transitional justice with criminal-procedural instrumental composition, which would make goals achievable that were unavailable for reparations.

The question of practical field is who should give reparations. There is no specific treatment in literature for this question. There will be cases when the public sector provides reparations, for instance, Government or committees close to the Government or maybe fact-finding group will be created focusing on expression and no compensation. Another more acceptable version is the creation of a committee, including representatives from public and private sectors, which will accurately define the criteria that victims should fit for getting compensations for the exact act or acts comparison. The definition of criteria will help to avoid conflicts among victims. In contrast, the artificial division can appear between victims in “favorable conditions” and others, which will strain the situation.

As the primary issue in the practical field, the election of criteria is also important, but it is not a subject for discussion in this article.

Making the transitional justice through reparations doesn’t contradict any statement of the Constitution of the Republic of Armenia. European Court of Human Rights doesn’t see any controversy between reparations of transitional justice and the European Convention of Human Rights.

Moreover, as an epilogue, we can mention that this process has already begun, but hasn’t been qualified as such, because Armenian society hasn’t considered reparations as an act of transitional justice. It’s about the video posted by the prime minister of RA Nikol Pashinyan, where he has apologized to victims of March1 on behalf of Government[xx]. Besides, the prime minister has accepted that crimes were done, weapons were used illegally, and society was forced a lot. Nikol Pashinyan has criticized and judged such violence and illegality. He has also judged criminals’ unconcreted intention and powers’ treatment to the society governed by them. It’s a classic type of reparation of transitional justice by paying tribute and memory, recovering methods. Besides, he has mentioned that the Republic of Armenia will never return to the previous permissiveness and criminal behavior regimes. So some guarantee has been given that that behavior will never be repeated. All of this is contained in reparation as an act of transitional justice, and there is no any unconstitutional, unconventional statement or action.

 [i]P. Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice’, page 31, Human Rights Quarterly 2 (HRQ) (2009), page 321; J. Elster, Closing the Books: Transitional Justice in Historical Perspective, Cambridge University Press, 2004; R. G. Teitel, ‘Transitional Justice Genealogy’, page 16, Harvard Human Rights Journal (2003), page 69.

[ii]Constitution of the Republic of Armenia, Article No 162

[iii]The UN Basic Principles on Reparations.

[iv]Root Rebecca K. Root, Transitional Justice in Peru, Palgrave MacMillan (2012), page 134

[v]TRC Report Vol.II, Chapter 4,Paragraph 69-70

[vi]ransitional Justice and Reparations: Remedying the Past? Moffett, L. (2017). Transitional Justice and Reparations: Remedying the Past? In C. Lawther, L. Moffett, & D. Jacobs (Eds.), Research Handbook on Transitional Justice Edward Elgar Publishing. ResearchHandbookonTransitionalJustice

[vii]Princile 15, UN Basic 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, A/RES/60/147 (2005).

[viii]D. Shelton, Remedies in International Human Rights Law, (OUP 2005, second publication).

[ix]R. Falk, Reparations, International Law, and Global Justice: A New Frontier, P. de Greiff (ed.), Handbook of Reparations, էջ 478- 503. (OUP 2006).Միջազգայինքրեականդատարան, ՀռոմիՍտատուտհոդված 75, Միջազգայինիրավախախտումներիհամարպետություններիպատասխանատվությանկոնվենցիա, հոդվածներ 31, 34-39, 2001 թ.:

[x]Reparations in Transitional Justice: Justice Or Political Compromise? LUKE MOFFETT, Teitel, Ruti G. 2000. Transitional Justice. New York: Oxford University Press, էջ 119

[xi]Transitional Justice and Reparations: Remedying the Past?, Moffett, L. (2017). Transitional Justice and Reparations: Remedying the Past? In C. Lawther, L. Moffett, & D. Jacobs (Eds.), Research Handbook on Transitional Justice Edward Elgar Publishing. ResearchHandbookonTransitionalJustice

[xii]Ibid, էջ 5.

[xiii]T. Madlingozi, Good victim, bad victim: Apartheid’s beneficiaries, victims and the struggle for socialjustice, in W. de Roux aafter AZAPO v President of South Africa, Pretoria University Law Press (2007), էջ107-126, 112-113.

[xiv]C. Moon, ‘Who’ll Pay Reparations on My Soul?’ Compensation, Social Control and Social Suffering, Social and Legal Studies 21(2) (2012) էջ 187-199.

[xv]Geneviève Painter, Towards Feminist Theoretical Approaches to Reparations (Conference Paper, September 2006) էջ 4

[xvi]Supranote 17

[xvii]ECtHR, Jordan v UK, Judgment, App no 24746/94, 4 մայիս 2001; ECtHR, McKerr v UK, Judgment, App no 28883/95, 4 մայիս 2001; ECtHR, Finucane v UK, Judgment, App no 29178/95, 1 հուլիս 2003.

[xviii]ECtHR, Loizidou v. Turkey, Judgment, App no 40/1993/435/514, 18 դեկտեմբեր 1996

[xix]ECtHR, Ždanoka v Latvia, Grand Chamber, Decision, App no 58278/00, 16 մարտ 2006, §100

[xx]https://www.facebook.com/nikol.pashinyan/videos/153793728886567/

Author:Lusine Hovhannisyan.©All rights reserved

Translator: Tamara Karapetyan

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