“It is important to acknowledge the victims’ right to reparations”

In international criminal law, collective reparations to victims of crime is an urgent issue for which there are no straight-forward rules. Diana Odier-Contreiras Garduño, who teaches Human Rights Law at University College Utrecht since 2014, looked at the theory and practice of such collective reparations in her PhD thesis.

Diana’s starting point was an article she wrote back in 2011 on the collective reparations for indigenous peoples granted by the Inter-American Court of Human Rights (IACtHR), a regional human rights court based in Costa Rica. While the International Criminal Court (ICC) has granted collective reparations in all its cases and referred to the IACtHR’s jurisprudence, Diana found more than enough discrepancies in the way such jurisprudence was being invoked.

 “In which cases, I wanted to know, does the IACtHR apply only collective, in which individual reparations, and in which cases both,” Diana tells. “What I found out was that collective reparations are granted  only in the cases of indigenous and tribal communities. How was this to be justified if human rights law establishes the right to individual reparations? It appeared that the justification of this is based on the specific community vision of indigenous and tribal peoples. However, granting solely collective reparations has become the footprint of the ICC and of reparatory transitional justice mechanisms. Accordingly, individual reparations for victims of serious violations are usually  wishful thinking.” Diana found out that this approach runs against the individual right to reparations, but she admits that it can be justified on grounds of extraordinary justice. “In this light, collective reparations present a compromise in which basic rights, limited resources, weak institutions and unlimited victim’s needs are balanced.”

A pragmatic view

During her 7-year research, Diana shifted gradually towards a broader scope of cases. The more she read the more she started to ponder about the dilemmas of an imperfect practice. Finally, she settled with the notion that even symbolic reparation to communities – such as building a hospital, or setting up a monument – is valuable, as it clearly acknowledges the damage done to the victims.

“It is a pragmatic way of looking at things that I advocate now more than before. The fact is that you always have to deal with governments’ (un)willingness to do reparations, and the resources they have. Plus: if you talk about financial compensation, how to fix a sum for each kind of crime? Or for each personal damage? Where to find the parameters? In that light, even a modest service to a community by means of a reparation may not be that bad a thought at all.”

Support from colleagues

During her research and writing, Diana kept on lecturing at the University College. And not only that, as a tutor, she had a set schedule of student contact hours as well, as the University College has an intensive tutoring system.

“My colleagues have been incredibly supportive. The collegiality at University College Utrecht is something I never experienced before. It is really a community here, people care for each other, they replace you when needed. Towards the end of my thesis writing, I am afraid I had to miss quite a few tutor meetings, and I am truly grateful for my supervisor for having such an understanding with that.”

The PhD is for Diana not an ending point but just another start. “There is so much material I could not include in my thesis. First, I am planning to write an article on Colombia, which is more recent than most of the cases I discuss in my thesis. And I am dreaming to teach a new course on International Criminal Law at the University College.”

She does not come short of plans, but while looking forward, she also acknowledges that she has learned a lot from the process of writing the dissertation. What is her one big advise to other PhD candidates? “Start writing early enough, do not keep on just reading! And get familiar with a footnote processing program. You can’t be careful enough with your sources.”

Diana Odier-Contreiras Garduño: Collective Reparations. Tensions and Dilemmas Between Collective Reparations and the Individual Right to Receive Reparations. (Cambridge: Intersentia Publishers, 2018)