African American Women's Reparations: The Case for Reparations

Introduction

Reparation is defined as the principle of international law which is based on the breach of an agreement entailing a mandate to making reparation in a sufficient manner. Reparation as a principle law has existed for many years and which refers to the necessity of misconduct of a party to compensate the damage caused to the affected party (Chisolm, 1999). Based on international law, reparation is obligated to eradicate all the consequences of unlawful acts and re-institute the situation which would be in existent in the event the act was not committed. The right to reparation is well developed principle of the international law. The affirmation of this principle was done by the commission of the international law in its 53th session (Ogletree, 2003). It was at this time that it implemented the draft articles regarding responsibilities of nations for internationally unlawful acts (Hopkins, 2010). The right is as well embodied in treaties of international rights of humans and instruments of declaration. The rights have been extensively advanced by jurisprudence of a composition of regional and international courts and other bodies of treaties and complaints systems. 

In 2005, the United Nations General Assembly adopted principles which were basic as well as the associated guidelines regarding a right to remedy and reparation for the affected individuals on violations of international human rights and human rights (Danielson, 2004). The principles are composed of crucial contributions to the systemization of rules linked to the right to reparation. 

International human rights instruments and treaties offer the victims of international crimes the right to pursue and get appropriate solutions for the infringement of their rights (Morgan, 2014). The standard principle and guideline on the right to a solution and reparation state that the phrase victim incorporates those have suffered from any harm individually or collectively (Bradford, 2002). They may include the family and dependents of the victim and individuals who have undergone any harmful event in distress and to avert victimization. 

Until currently based on criminal chronicles, the pursuit of victims to get reparation was inaccessible. Nonetheless, the Rome Statute regarding of the ICC now acknowledges that the affected individuals on the basis of crimes based in its jurisdiction of the Court will get reparation and allow the court to order directly on the convicted individual to make reparations on their behalf (Aiyetoro , 2003) . 

There are also forms of reparation, though the usual one is identified with compensation. Other forms of reparation incorporate rehabilitation, restitution, non-repetition guarantees and satisfaction. The form of reparation applicable to the victim will be dependent on the person’s circumstances (Erin, 2003). In this work, I will deliberate on significant statements on certain factors to be acknowledged in offering reparation to African American women affected in conflict. This paper will recognize that the integration and restitution of African American women are not enough goals of reparation, which has to address the structural and political inequalities and allows the occurrence of violations in the first place (Schweber, 2007). 

Discussion

Reparations for African American Women Subjected to Violence 

Conceptual Challenges 

The idea of a right to reparation is enshrined within the system of the law of solutions and incorporates two features. The features are procedural and substantive. Based on procedure, solutions are the processes through which arguable presentations of crime are heard and decisions made by competent groups, whether administrative or judicial (Brophy, 2006a). Based on substance, solutions are composed of the results of the proceedings and more elaborately, the measures of solutions provided to the victims (Mills, 1997). The remedies laws can serve both persons and societal goals. The main purpose incorporates corrective justice, retribution, deterrence and restorative justice. It is the component of corrective justice responsible for fairness to the affected and solves the measures focused on correcting the crime that the affected experience (Brophy, 2006b). This will be the aim of this work. 

However, a consistent theory and the practice for solutions for the affected do not exist in the international law. The right of persons to reparation for committing crime has been increasingly acknowledged (Daly, 2002). A shift in aims can be determined in national fields as well as away from international disputes is the adoption of the principle of interstate responsibility since World War II. The legal foundation for a right to solution and associated to it, right to reparation has been enshrined in the corpus of humanitarian instruments and international human rights. The content of the duty to deliver reparations to persons whose rights have been infringed remains oblique (Danielson, 2004). When referring to the solutions in pursuit of the on infringement of right, the entire treaties on human rights employ vague language. International agencies on human rights which are mandated to hear grievances within their jurisdiction usually limit themselves to establishing facts and stating declaration judgments. But, at best, they recommend a compensation of an unknown quantity to be offered to the victim (Gibney, 2001). However, based on observations on other nations, varied bodies of human rights have begun pressurizing nations to compensate and rehabilitate measures to the victims. Courts dealing with matters of regional human rights should also influence the compensatory damages to pecuniary injuries and those not injured (Lyons, 2002). 

Bringing African American Women into the Reparations Debate 

Across all the humanitarian and human rights law treaties women are covered on a right to solution. But, the challenge is that there is no clarity on all types of discrimination against women more so their rights to reparation, compensation and remedies. According to article 2 (c), it only states that the State parties will ensure the appropriate protection of women against the acts of discrimination based on competent state tribunals and public institutions (Brooks, 2004). The statement conflicts with article 6 of the International Convention towards eradicating all types of racial prejudice which refers to the State’s mandate to ensure sufficient reparation and satisfaction for any suffering due to racial discrimination (Meyer, 2006). Article 14 of the Convention against cruelty, torture, inhuman and degradation punishment and treatment requires that nations assure the affected access redress as well as has enforceable right to adequate and fair compensation among the means of rehabilitation (Fredrickson, 1982). The responsibility to offer reparations to African American women exposed to violence is outlined in the Declaration to eliminating all forms of violence against women. This is the duty of the respective States, and they should endeavor to advance civil, penal, administrative and labor sanctions in legislations to punish and establish solutions to women exposed to violence (Hall, 2004). The declaration stipulates that women exposed to violence should be availed with systems of justice as outlined in the State’s legislation for a just and appropriate solutions (Randall, 2002). Inter-American Convention regarding the prevention, and punishment as well as elimination of violence against women envisages that nations must establish fair and appropriate legal process for women exposed to violence (Mills, 1997). They should also be furnished with the important administrative and legal systems to access reparations, restitution and solutions. 

The protocol to the African Charter regarding people and human rights based on women rights in African highlights that women exposed to violence through violations of their rights to integrity, life, and security should access reparations and even rehabilitation (Bookman, 2006). The declaration mandates the state to advance systems to increase the involvement of women in formulation, planning and execution of post-conflict rehabilitation and reconstruction. However, there is limited information on state’s mandate to offer sufficient reparations for acts of violence against women (Marable, Popescu, Jones, & Lespinasse, 2015). The lack of effort towards the advancement of reparations at both procedural and substantive level for women suffering is in contradiction that women are the focus of both sex-precise and other types of violence including conflict time and ordinary time. Women bear the outcomes of violence which focus on them, their dependents and partners (Miller, 2004). The differentiated and disparate effect mounted on women due to violence provides the need for particular mechanisms to find solutions towards particular priorities and needs. Issues of need requires linking structural transformation and personal reparation since violence against women at personal level feeds in style of pre-existing and complex systematic marginalization and structural subordination (Epstein, 2004). 

In addition, women exposed to violence have customarily approached challenges to getting the institutions of reparations. The traditional abandonment of women in the sphere of reparations has been shown through movements that have been unsuccessful for reparations. However, the universal legal rejoinder to violence against women over the last one and half decades, and the acknowledgment of violence against women as a concern of human rights within the UN are some of the indicators (Blevins, 2005). The paths of feminism and women’s movement in the international criminal law crystallize the incorporation of some kind of gender violence as crimes due to war and against humanity as enshrined in the Rome Statute of the ICC. Here, they were supplemented with applicable debates on how some transitional justice systems and not criminal courts could be stated more incorporative to women (Wiggan, & Wilburn, 2009). Recently, there has been advancement in states to make sure that the obligations of the truth as well as reconciliation commissions incorporate gender violence investigations. There have been objective hearings towards female victims to ensure women’s experiences of conflict are visible in the recommendations and reports. 

The idea of gender-sensitive reparations has advanced from a state-level transitional justice debate to universal human rights jurisprudence. The human rights courts of inter-American have confirmed the need to develop reparations which are gender-sensitive (Mills, 1997). The civil society activists and the academic realms have contributed to gender-sensitive reparations on the international and national agenda. There have been monographs highlighting reparations for women (Yamamoto, 1998). Again, there are feminists’ movements championing the fight against impunity on gender violence in armed conflict and debate on reparations of women. Example includes, The Nairobi Declaration towards girls’ and women’s right to solution and reparation was adopted in 2007 by activists, advocates of women’s right, and sexual violence survivors. This best explains the transitional development issue towards providing girls and women with sufficient reparations (Abiola, 1992). 

There have also been increases on mobilization with regards to reparations at state level by the affected groups, women’s association and human rights groups. The significance of women’s involvement in reparations debate and procedures cannot be overestimated (Munford, 1996). The initiatives can possibly portray experiences of men’s violence and concerns, the need with regards to solution and priorities in the absence of girls and women from varied contexts. Moreover, with the lack of involvement, a chance is missed for victims to gather sense of need that is essential form of rehabilitation. Involvement is crucial for society and women generally to establish relationships between past and present types of violence (Spitzer, 2002). Therefore, they can seize the chance offered by reparations debate to emphasize for additional system reforms. 

Engendering Reparations: The Theoretical Model 

The solutions of reparations for the violation of specific rights needed researching some facts to establish whether violations occurred, determining the damage following the violation, identification of duty for the violation and measures of solution focused at renewing the victim to their initial state before violation occurred (Danielson, 2004). With the facts, and classifying women as possible gainers of reparations, the initial difficulty links to the fact that violence that girls and women experience precedes the conflict and continue to worsen the discrimination which they are exposed to in the post-conflict situation. Also, in non-conflict situation, violent acts against women incorporate the larger model of gender system and can be grasped when viewed in wider structural contexts. Therefore, sufficient reparations for women are not all about returning them to their initial situation but transforming them (Winbush, 2003). Reparations should subvert as opposed to reinforce initial structural disparity which may be the main cause of violence women undergo before, during and after the violence. Women-focused reparations need involvement of women in the implementation, shaping, evaluation and monitoring processes of reparations programs (Hackney, 2004). They should also participate in design of procedural reparations to enable accessibility to all women. Women should conduct investigations into facts to establish specific violations of rights that have occurred and ensure they target women, determine harms which are gender particulate, and have varied effects on women. Women should also identify the need for violation such as omission, perpetrators targeting women and establish solution measures focused at returning the affected to their initial state. 

Reparations for Women Exposed to Violence in States of Widespread Conflict 

Women are victims of authoritarian administrations and in the event of violent conflicts in several ways (Van Dyke, 2003). They endure operations aimed at terrorizing civilians, extrajudicial executions, torture, incarceration, sexual mutilations and rape for resisting movements. This usually takes place while in search and protection of their loved ones and coming from those suspected collaborative communities. Women and their children are a representation of the majority of those compellingly displaced in internal strife (Brooks, 1999). They often suffer the consequences of their men especially when they remain the protectors of families. Sometimes they suffer similar circumstances as those of men. Some are more particular to women exposing them structural sexual and reproductive violence as well as domestic dependence. In some contexts, some crimes are perpetrated by states force whereas others are employed by non-state outlawed sects and self-defense groups (Engerman, 2009). More significantly, even though women are exposed to similar violations as their male counterparts, their initial existing social, economic and legal status as well as the meaning of culture surrounding the male and female construct in patriarchal environments causes varied harms for both women and men (Mazrui, Mazrui, & Mazrui, 2002). 

Procedural Considerations: Reaching Women 

Women’s accessibility to expressive reparations depends on the procedural difficulties they are likely to come by as opposed to the contents of reparation measures. International and national institutions of justice encompass the basic arena for solution complaints in societies that deal with both present and past violations. Such institutions are motivated with the aim of offering victims their compensation commensurate to harm (Robinson, 1999). They are significant because they catalyze the enthusiasm of discreet governments to develop more reparations programs. Procedural huddles the victims of sexual violence encounter in the institutions of justice amounts to re-victimization experience, exposing women to psychological torture, stigma, reprisal, family and communal ostracism. There should be sufficient evidence and high level of confidentiality in the reparations procedure (Fullinwider, 2004). The judicial system does not certify forms of reparations that have possibilities of challenging the earlier gender hierarchy. In incorporates those women with less property compared to their men, possession of lower level of educational opportunities, therefore, possibilities of less income (Biondi, 2003). Criminal as well as tort processes pursue to allocate personal duty for moral, material harm as well as grant reparations to the affected party. On the other hand, they do not offer effective model for rehabilitation and have no non-reparations, which is characterized by possibility of transformation. Reparations are assigned in administrative reparations plan as opposed to case-to-case judicial adjudications to pursue compensation commensurate to the harm. This is applicable in mass violation situations (Buxbaum, 2004). Programs of administrative reparations can avoid certain challenges and costs related to litigation such as high expenses, the need to collect evidence and which at some points do not exist. Also included is the pain related to cross-check and the lack of trust in systems of judiciary, hence its relevancy to the victims and women generally. 

The administrative field as well allows an approach which is proactive the victims and offer a satisfying platform that aims at informing the victims of their number, age, social and economic profile, structure of family, breakdown of gender, their encounter with violations and the instances of the effect of violations throughout their lives. Therefore, the data is relevant in comprehending the structural constituent of the encountered violations, the role of the state by omission or action and gender-particular effect of the violence against women’s lives. In addition, reparation program is important when applied in administrative or legislative schemes. The victims or their groups as well as the civil society generally are participating in the process in a proactive manner than the proceedings of the judiciary. This assists in the facilitation towards access to information required for effective design of a plan and it is in itself a reparative impact by communicating a matter of urgency (Crocker, 2000). The process is applicable generally to all the victims hence even more for women with regards to their challenges in accessing the public arena and relating with the state. There is also a timing effect which is significant in establishing women’s admission to reparations, more so for crimes due to sexual nature. There is the lack of prior terms and conditions for making reports as well as testifying on sexual harassment in the aftermath of repression or conflict moreover in poverty stricken areas where women too have extremely poor conditions of health (Munford, 1996). Reparation plans should no longer compromise accessibility to the justifiably felt earnestness of society to excel. Strict application closing dates as well as a closed –list mechanism will not permit varied victims to volunteer and claim reparations when they are psychologically and physically prepared to do so. 

Substantive Considerations: Understanding Harm to Women 

Programs of reparations permit for simplicity, in a systematic way, of complex reality of gross and mass violations of human rights (Lovelace, 2001). It relies more or less clearly on sets of common particularities that include the explanation of victims and the selection of the violations list or crimes which will include reparations (Nesiah, 2015). The definition of beneficiaries as a group of individuals who are qualified for the gains to be distributed and the description of gains of both symbolic and material, individual as well as collective nature (Verdun, 1993). 

Conclusion 

Women’s reparations are not about reversing them to their initial state in which they were found prior to the personal instant violence. Instead, it is the striving to have possibilities of transformation (Obuah, 2015). Therefore, reparations should aim at, to the level possible, to subvert as opposed to reinforcing prior models of cross-cutting system subordination, hierarchies of gender, systematic marginalization, and inequalities model that can be the main cause of violence women undergo before, during and after the occurrence. Complex plans of reparations, for example, the ones that offer different types of benefits, can possibly address the needs of women beneficiaries in terms of potentiality to transform both in terms of the women’s self-confidence, esteem and the level of practical material. The symbolic recognition measures can also be significant. They can address both the distortion of patriarchal comprehensiveness and victim’s recognition that provide meaning to violations. 

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