Innovation, Independence and Dysfunction: The role of international organizations in Holocaust & Transitional Justice

Reparations Efforts

Dr. Kathy L. PowersVisiting FellowUnited States Holocaust Memorial Museum

&University of New Mexico Department of Political Science School of Law Program of Africana Studieskpowers1@unm.edu

South African Apartheid

What can you do if the perpetrators of human rights violations receive amnesty?

Rwandan Genocide

How do you resume living next to your neighbors after your neighbor murdered your family as well as tortured and sexually mutilated you?

Who protects you when your government commits human rights violations toward you (e.g., Holocaust Victims, Asian Comfort Women)?

Bosnian Serb Ethnic Cleansing of Muslims in Srebrenica in 1995

What recourse do you have when you are forced to flee your home because of civil conflict or you are forcibly impregnated as a strategy to eradicate your ethnic group?

Slavery in America Are reparations possible when

so much time has passed?

Contemporary contours e.g. Ferguson

Who protects you?

If your human rights are violated by your government…

Who protects you?

What recourse for justice do you have?

What are your options when your atrocities have been committed against you?

Survive

Simmer

Take up arms

Seek Justice

Key Questions

In the aftermath of mass atrocities, what is justice?

Why are some reparations efforts pursued and awarded while other such efforts are not?

What role do international institutions play in individual reparations efforts?

What is justice?: The Holocaust

Reparations in International Relations

Victor’s Justice Fines exacted among states,

usually for damages incurred during war (Torpey 2006:8)

Victor state forces defeated state to pay reparations as punishment.

Old: World War II Reparations In 1945, West and East Germany

paid $23 billion in war reparations to the Allies.

New: Holocaust Restitution and Reparations 450 million DM to Israel for the

relief, rehabilitation and resettlement of European Jewish refugees.

Reparations for material claims in the from of indemnification and restitution to the Claims Conference (through Israel). Only Western European

victims received reparations.

What is an IO?Organization with bureaucracy

Treaty

Regime

Network of relationships

Treaty Nesting

Legal person with rights and duties under international law

What is treaty nesting?Treaties are connected. together.

Linkage must be considered in order to understand treaty effects.

Multilateral treaties linked to bilateral treatiesCommonwealth of Independent States (CIS) International Criminal Court

Table 1: Treaty Nesting Relationships: Cooperative

Treaty Relationship Description

Amplify To build new understandings in an already existing treaty

Specify More narrowly extends content of an existing treaty

Implement Implement content in an existing treaty

Adjusts To address unintended consequences of an existent treaty

Prepare Preparing member states for entry into another treaty

*Legalize Make norms in one treaty binding in another

Table 2: Treaty Nesting Relationships: Conflictual

Treaty Function Description

Circumvent Circumventing the content in an existent treaty

*Remove/strip Remove or strip content of an existing treaty

*Terminate One treaty terminates another treaty.

What is International Legal Personality?

A State Possesses sovereigntyControls a defined territoryGeneral authority over a populationSimilar to a person in a domestic legal system

Capacity to own propertyCapacity to enter into contractsCapacity to bring a claim or be subject to one in an international

tribunalCapacity to engage in international relations

International Legal PersonalityDo non-state actors have rights and duties separate from

states under international law?

Can an individual bring a claim against a state in an international venue?

Can an international organization sign an international treaty?

International Legal Personality

IGO rights and duties:Reparations Case of 1949

Can an IO bring a claim or be the target of one in certain international venues?

Can bring a claim against a member or a non-member state?

International Legal Personality IGO Treaty-making power:

Usually conferred under constituent treaty“The capacity of an international organization to conclude treaties is

governed by the rules of that organization.” (Art. 6, VCLTSIO)

Some IGOs do not have treaty making powers e.g. Benelux Union

Others do e.g. EU, MERCOSUR SACU

International Legal Personality and IGOs

IGOs with ILP:Have rights and duties separate from member states that create

it

Is a legal person with the ability to contract in its own name

No presumption that the creator is liable (Amerasinghe 1996: 67)

International Legal Personality and IOs

Sources of legal personality:

Constituent treaty Delegation

Case lawImplied or Assumed powers

Types of International Organizations

Intergovernmental Organizations (IGOs)

Non-governmental Organizations (NGOs)

Is there something in between?

Institutional Innovation, Independence and Dysfunction:

The Holocaust Institutional LandscapePre-Nuremberg War Crimes Trial Field Teams

Field trials accompanied Allied liberation.

Nuremberg Charter Treaty used to create international courts that tried individuals for war crimes

under international law.

Allied Military Law Used to create the Jewish Restitution Successor Organization that sought

reparations for individuals.

Reparations Agreement of 1952 Agreement between states for German restitution to Israel Created an NGO that negotiates reparations agreements with states for

individuals.

What is Transitional Justice? Transitional Justice:

Refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses.

Transitional Justice Mechanisms: War Crimes Tribunals

Truth Commissions

Reparations

Lustration

Amnesty

Institutional Reform

Reparations and WarVictim’s Justice

Reparations for mass human rights violations committed (Powers and Proctor 2014). Violation of rights under international law so a right to redress.

“Connote with massacres inflicted on defenseless individuals and place the call for for redress in a lexical field demarcated by trauma, memory, and recognition—in a web that draws on the Holocaust as its foundational event” (Ludi 2012: 1)

Reparations demanded in post-dictatorship and post-conflict societies, but….also… in cases of unresolved historic injustices, in negotiations to settle armed conflicts and in criminal and civil cases involving war crimes and HRVs” (ICTJ 2010).

Institutional Innovation, Independence and Dysfunction:

Transitional Justice Reparations Institutional Landscape

Treaties Peace agreements, trade

agreements

Courts International

ICC Victims Trust Fund Regional

European Court for Human Rights, Inter-American Court for Human Rights

Domestic U.S. Airline Stabilization Act of

2011

IO Resolutions e.g., United Nations Right to

Remedy (2005)

War Crime tribunals ICC Victim’s Trust Fund

Truth Commissions South African Truth and

Reconciliation Commission Argentina’s Truth Commission

Reparations policy programs Governments pass legislation that

creates and funds a reparations program

Holocaust Restitution and Reparations vs. Transitional Justice Reparations

Notion of justice has evolved with the acknowledgement of trauma.

Individuals can pursue reparations claims cases against their own governments in venues above the state.

Reciprocal influence.

International legal personality and treaty linkages are factors that should be considered in explaining reparations pursuits and awards.