An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice
Antkowiak, Thomas M., Stanford Journal of International Law
More than ever, international attention has been directed to the needs of those who have suffered human rights violations. Nevertheless, the chasm between what victims want and what they obtain is still vast. The Inter-American Court of Human Rights, unlike most tribunals, has sought to narrow this gap by ordering remedies that respond to victims' demands for recognition, restoration, and accountability.
In contrast, for decades the European Court of Human Rights has applied a restrictive remedial model. The European Court, inordinately' concerned about its institutional integrity, curtails remedies--often delivering only declaratory relief and monetary damages. Since the Inter-American model is far more oriented towards the expressed preferences of victims, I will designate it "victim-centered," while I conceptualize the European approach as "cost-centered."
This Article will consider the development of the victim-centered approach in international law, test its feasibility, and then urge its application--by both the European Court and nascent human rights bodies searching for adequate remedial principles. To demonstrate the viability of this model, I will present a detailed analysis of state compliance with the remedies of the Inter-American Court.
I conclude that the European Court, the African Court on Human and Peoples' Rights, and the International Criminal Court have recently made progress towards a victim-centered paradigm. But the tribunals still have much terrain to cover, if they choose to follow the trail blazed by the Inter-American Court. The Inter-American Court has been able to convince states to implement its demanding remedies without losing their allegiance. While its approach is certainly not perfect, its record shows that a victim-centered
I. INTRODUCTION II. TOWARD A VICTIM-CENTERED MODEL A. The Preferences and Needs of Victims B. The Resurgence of Restorative Justice C. The United Nations and Restorative Remedies in Global Law D. A Tale of Two Remedial Approaches: "Victim-Centered" vs. "Cost-Centered". III. A STUDY OF STATE COMPLIANCE RATES: THE NON-MONETARY REMEDIES OF THE INTER-AMERICAN COURT A. Introduction B. Remedies for Individuals 1. Restitution and Cessation 2. Rehabilitation 3. Recognition of Responsibility and Apologies 4. Memorials and Commemorations C. Remedies Directed to Discrete Communities D. Remedies Addressed to Society as a Whole 1. Legal Reform, Human Rights Training and Other Measures 2. Criminal Investigation and Prosecution IV. AN ANALYSIS OF COMPLIANCE WITH THE INTER-AMERICAN COURT'S JUDGMENTS A. Introduction B. Understanding Compliance with Court Judgments in Latin America C. Improving Compliance with Court Judgments in the Americas 1. Recommendations for States and the OAS 2. Recommendations for the Inter-American Court 3. Implementing a "Participative" Methodology 4. Special Challenges V. TRANSFERRING A VICTIM-CENTERED REMEDIAL MODEL TO OTHER COURTS A. The European Court of Human Rights 1. Introduction 2. A Victim's Perspective 3. International Law: Principles and Practice 4. Remedial Theory: Insights from U.S. Constitutional Scholars 5. Pragmatic Issues Regarding Escalating Caseload and Faltering Compliance 6. Moving Forward B. The African Court on Human and Peoples' Rights C. The International Criminal Court VI. CONCLUSION
The meaning of justice is associated with recognition, memory, and punishment ... but also includes a vision of cultural change.
--Carlos Beristain (1)
Let it be clear that when those of us ... who had already received an indemnization from the State ... turned to [legal representation], we were seeking a full reparation, because we felt that, day to day, they continued violating our rights, that justice had not been done, that we wanted the truth. …