Should victims of human rights violations with alleged or certain ties to groups that use terrorism receive reparations? This complex and sensitive dilemma has begun to arise in countries implementing reparation programs pursuant to the recommendations of their truth and reconciliations commissions.
Reparations law has special relevance to the transitional justice paradigm, as countries seek to respond to widespread human rights abuses — situations in which the line between victim and perpetrator often blurs. New case studies reveal the serious challenges of implementing administrative plans of reparations that first require that recipients be qualified. While some issues are purely technical and logistical, others — those that hold potential to generate new forms of harm and even new rights violations — beg further discussion and clarification. Certainly, as the recognition of the right to reparation grows, so do the legal issues pertaining to its practical application. In the realm of international human rights law, new cases offer opportunities to continue defining the parameters of this right, as noted in an ever-growing jurisprudence with respect to remedies law. Such is the case with equity's Clean Hands Doctrine, which dictates that an injured party's wrongdoing may limit his or her claim to reparations. When applied in cases in which victims of human rights violations seek relief, however, this doctrine conflicts directly with the well-established legal principle of nondiscrimination.
Should a person's innocence or guilt factor into whether he or she deserves to be repaired?
In answering this question, it is important to ask some others:
► What actions, allegiances and beliefs constitute a basis for exclusion, as well as what the standard is for determining wrongdoing-such as a firm criminal conviction or mere allegations?
► What if a person suffered torture, rape, unjust imprisonment and perhaps even was disappeared or killed, but was alleged to have connections to "subversive" and "terrorist" organizations, sometimes called "illegally armed groups"?
► Who determines whether such a person qualifies as a victim with a right to reparations?
There is only limited and inconsistent jurisprudence on the Clean Hands Doctrine in international law. In this article I argue that, in relation to human rights law, the Clean Hands Doctrine does not and should not apply. The very nature and purpose of human rights protections and guarantees protect against as much state abuse and domination as against state negligence. Thus, a state’s failure to observe international norms should result in the victim received a remedy for harm suffered regardless of the status of the victim. A contrary standard would read that, but for the wrongful conduct of the person, he or she would not be subject to state control, and thus would not have suffered harm. In other words, a person who committed a wrong would lose the protections enjoyed by “non-delinquents.” This would create a two-class tier of rights holders.
Given that the overarching purpose of human rights protection is to curb state abuse, one could argue that carving out exceptions where human rights violations have no consequences presents a worrisome precedent. Arguably, this approach has been assumed by the organs of the inter-American system, including the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (below left). Although neither of these international human rights bodies has ruled directly on the issue, decisions issued by each suggest that neither body considers the character or status of the victim as a factor relevant to the determination of reparations. In effect, this reading supports the general rejection of the Clean Hands Doctrine in relation to reparations for human rights violations.
Nonetheless, states that have confronted politically divisive transitions from repressive regimes and internal armed conflict have not necessarily assumed this general rejection of the Clean Hands Doctrine.
For example, a transitional justice project was launched in 2001 by Peru's Truth and Reconciliation Commission (above right). (photo credit) Formed in the wake of twenty years of internal armed conflict between the state and illegally armed groups, the Commission presented its Final Report in 2003, and included recommendations for a Plan Integral de Reparaciones (Integral Plan of Reparations), which adopts a partial rejection of the Clean Hands Doctrine. Yet, as the Peruvian government now attempts to implement this Plan, it confronts the controversial and divisive issues related to how it can, and must, approach victims of state abuse who allegedly have, or had, ties to illegally armed groups. Due to political pressure, the national legal norms codifying the Plan include exclusionary clauses that reflect a full adoption of the Clean Hands Doctrine.
Peru's policy has generated much tension with respect to the implementation of the law. The situation grew more contentious when the inter-American system ordered reparations for survivors/victims of a massacre that occurred in 1992, during a state lockdown of a prison in which persons were held on suspicion of terrorist activity (many had not been convicted). This case, Miguel Castro Castro Prison v. Peru (2006), threatened to unravel the implementation of domestic reparations.
Local rejections of equitable reparations present serious political challenges for emerging democracies as they attempt to build the rule of law and respect for human rights.