Compensation Is Not Enough – Afghan Victims Are Entitled Other Forms of Reparation

[Lucy Geddes is an Australian human rights lawyer and is currently the head of Legal Action Worldwide’s Sri Lanka office.]

On  19 November 2020, the Australian Chief of Defence Force announced the findings of Brereton Report which allege the existence of credible evidence of war crimes perpetrated by the Australian Defence Force in Afghanistan. The release of the Report, following a four year inquiry commissioned by the Australian Defence Force, is a watershed moment. The Report, even in its redacted form, shares horrifying details of pre-meditated killings of non-combatants, of initiation rituals of ‘blooding’ unarmed civilians and prisoners and the deliberate cover up of these deaths.

Since the Brereton Report’s release, there has been significant commentary on the need to hold perpetrators to account through criminal prosecutions and as has been highlighted on this forum, the need to reform the culture of silence and impunity within the Australian Defence Force which allowed these crimes to go uncovered for so long. These are crucial initiatives. So far, there has been less focus on avenues of redress for victims and their families. Part of this stems from the terms of reference of the Inquiry itself, which was to examine whether there was ‘any substance to persistent rumours of criminal or unlawful conduct’ by Australian soldiers deployed to Afghanistan between 2006 and 2016. Framing the terms of reference in this way has necessarily resulted in a report which is focused on establishing credibility of evidence of war crimes, rather than on victims’ experiences.

The only mention of redress in the parts of the report which have been publicly released, is to recommend that ‘where there is credible information that an identified or identifiable Afghan national has been unlawfully killed, … Australia should now compensate the family of that person’. The recommendation emphasises that ‘this will be an important step in rehabilitating Australia’s international reputation, in particular with Afghanistan, and it is simply the right thing to do.’ It is not simply ‘the right thing to do’ but Australia has well-defined legal obligations to provide reparations to Afghan victims. Reparations include, but are not limited to, compensation. In fact, under international human rights law, Australia is obligated to provide reparations to any individual who has been a victim of any form of gross human rights violation that has occurred under the Australian government’s watch.

This onus initially stems from a well-established principle in customary international law, that countries who bear responsibility for internationally wrongful acts are obliged to provide reparations for the injury caused by that act. Australia’s legal obligations were further codified by UN General Assembly’s adoption of the 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 (Van Boven’s Principles) in 2005. Van Boven’s Principles do not create new obligations for states to provide ‘adequate, effective and prompt’ reparations for victims of serious human rights abuses, but rather they are a compilation of existing obligations drawn from international human rights treaties and jurisprudence.

Importantly, Van Boven’s Principles clearly provide that compensation is just one category of available redress to victims. In fact, Van Boven’s Principles set out five categories of reparation. These are: restitution, (restoration of liberty, citizenship, employment and return of property), rehabilitation, (psychological and medical care, access to legal and social services),  satisfaction (symbolic measures such as public apologies and memorialisation projects),  compensation (which is broadly defined and includes pecuniary and non-pecuniary measures aimed at addressing physical and mental harm; lost opportunities for employment, education and social benefits)  and finally, guarantees of non-repetition of harm, (initiatives aimed at law reform, strengthening the judiciary, increasing awareness about human rights and could also include measures aimed at changing the culture and structure of the Australian Defence Force).

In addition to setting up an office of a Special Investigator to deal with further criminal investigations to facilitate robust prosecutions, the Australian government should create a parallel process for reparations. As the report makes clear, it is not necessary to ‘await… for [the] establishment of criminal liability’ in order to award reparation. The standard of proof is different and the establishment of credible evidence that a gross human rights violation has occurred is sufficient. Designing reparations that are ‘adequate, effective and prompt’, as is required by Van Boven’s Principles, is not a simple exercise. In most cases, awarding reparations from just one category will not be sufficient to meet this standard. This in part is due to the fact that, subject to further investigation, the commission of war crimes may include a multitude of rights’ violations, spanning civil, political, social, cultural and economic rights.

The Brereton Report is silent on the gendered impact of war crimes perpetrated by Australian Defence Force Soldiers. If redress mechanisms are to achieve their intended purpose of having reparative impact for victims, it is essential that time is spent investigating these gendered implications. This requires a gender perspective to be incorporated in all aspects of design and implementation, rather than seeking to compartmentalise the question of gender to its own separate category. This is particularly critical in designing reparations to respond to communal and group violations, so as to combat any ‘risk that women’s specific gendered experiences [are rendered] invisible’.

Designing reparations, therefore, requires a coordinated, appropriately-resourced and gender-responsive government response, where victims’ experiences are central to the design – of both the substance of the reparation as well as the processes and procedures designed to access the reparative measure. This necessarily entails ‘multidimensional and multidisciplinary responses, involving medical, psychological, social, and legal measures that are gender sensitive’.

If victims are not central to the design of reparations, it risks undermining their effectiveness, and can also have terrible (even if unintentional) consequences. Reparation design must be underpinned by a ‘do no harm’ approach, which requires policymakers to ‘be starkly attuned to the dangers of worsening the material conditions of those who have experienced trauma and violence, of exposing them to public gaze without their consent, and of proceeding without listening to the lived experiences of harm in a conflict’. This can be avoided if victims are able to participate meaningfully in the design of process and substance. If the process to access reparations has been designed in a victim-centred way, this can also have a significant reparative impact – in addition to the award of the substantive reparation. The inclusivity of the design and implementation process can be determinate of the overall ‘transformative’ impact of the reparation in question. As Goetz notes, ‘justice is not only an outcome, it is an experience and a process that the victim participates in and witnesses’, and in this way, ‘the process of remedy can itself constitute reparation’.

The Australian government should act quickly and consider awarding interim reparations, based on the material in the Brereton Report, and then make arrangements for final reparations once the full extent of victims’ entitlements has been established. It is important that victims are not only consulted but also participate in the design of any interim measure. Setting up this type of response early is important, particularly as the Report has canvassed, once further criminal investigation has been undertaken, more victims may be identified.

Limiting redress to compensation, without extensive consultation with victims as to their preferences and needs, would fall short of complying with Australia’s international human rights’ obligations. As has been the subject of much commentary in the last week, Australia now has an opportunity to show the world what a best practice approach to prosecuting war crimes domestically could look like. While justice and accountability remain critical elements, Australia also has the opportunity to be a global leader in designing victim-centred holistic reparation initiatives. The government should act now to commence this process – these victims have already been waiting far too long.