An Islamic Perspective to the issue of Reparations Maulana Dr Ashraf Dockrat Paper presented on 6 December 2012 DIALOGUE ON REPARATIONS AS A CRITICAL TOOL IN CONFRONTING & DEALING WITH OUR PAST: 4 - 6 DECEMBER 2012 Held at UNISA: Miriam Makeba Auditorium

An Islamic Perspective to the issue of Reparations

Maulana Dr Ashraf Dockrat

Paper presented on 6 December 2012 

DIALOGUE ON REPARATIONS AS A CRITICAL TOOL IN

CONFRONTING & DEALING WITH OUR PAST: 4 - 6 DECEMBER 2012

Held at UNISA: Miriam Makeba Auditorium

Introduction

Islam we all know is a religion that can be placed in a continuum with other major faiths in the world. We not only proudly claim those traditions as our own but equally lay claim to the developments in modern philosophical and ethical thinking which have benefited from their interaction with the Islamic tradition during the pre-modern period.

It would therefore be of little benefit to you if I repeat what my colleagues who share this platform today with me have to say. They are by far much more eloquent and penetrating in their analysis of the religious texts and all I want to say is that Muslims can easily, as you may have imagined, draw on symbols and quote texts from their two sources, the Quran and the sayings of the Prophet Muhammad peace be upon him, which echo these. We know that social justice for example emerges as an important theme in these primary texts. The Arabic ‘adl, the term that is most

commonly translated into justice in the Qur’an, means a thoroughgoing right

relationship. Traditions are not hermetic, alternate universes. Voices in the

religious traditions, to greater and lesser degrees, share both assumptions and conclusions with voices in the liberal human rights tradition. In fact, one can discern an increasing convergence in views of transitional justice over the past few years. Each tradition also contains internal disagreements, which indeed drive the tradition’s evolution. Still, it is possible to identify distinct centers of gravity in the two traditions, certain commitments around which most of their members converge, even if they sometimes debate what these commitments mean. It is from these commitments that they engage with other traditions, sometimes finding common ground, sometimes sharpening their differences. Broadly speaking, such an understanding is consistent, I believe, with philosopher Alasdair MacIntyre’s classic definition of tradition as “an historically extended, socially embodied

argument.”

What this panel manifest is the rise of “public religion in the modern world,” to use the phrase of sociologist Jose Casanova. Confounding apostles of the secularization thesis that dominated the social sciences and humanities for decades, public, political religion is global in its impact and diverse in its valences. I hope that this paper, prepared at short notice, will contribute to that diversity.

The approach I would like to take this morning is more of a shariah and legal based one. Typically it would stress even more strongly the value of

punishment for bringing about the Rechtstaat – a political order based on the rule of law, human rights, and democracy. Under shariah rule the  preferred institution is the trial. The Islamic legal system or Jurisprudence contains I would contend, a number of what the legist have called “qawaid fiqhiyyah” or legal maxims which have a direct bearing on our discussion on reparations. What are the “qawaid fiqhiyyah” or legal principals (legal maxims) and why are they important when considering the Islamic legal position on an issue such as reparations?

Islamic tradition, developed a number of juristic tools and set for itself a methodology by which the jurist-consult or the mujtahid would approach the Quran, hadith, analogy (in the face of a growing number of similar questions which had precedent in the Quran and Prophetic example), the opinions of the companions and the consensus of scholars. In later times, and in order to ease the task of the jurist-consult, scholars derived a number of maxims which they used to guide their decisions on issues they faced. The Ottoman rulers supported the compilation of these Qwaid fiqhiyyah or legal maxims in order to make the work of their jurists and judges in the sprawling Muslim lands easier. Today we see a growing interest in the purposes and aims of shariah law-the maqasid or underlying purposes of the law due to a number of factors. Amongst these is the fact that Muslims often find themselves having to explain the rationale for their own substantive law based on the dominant legal system which has some under the influence of a rights based legal philosophy and secondly the possibilities that a maqasid based approach has for further ijtihad and legal thinking into modern day issues. The protection of life, the protection of honour, the protection of the mind, the protection of property, the preservation of religion are all some of the essential/ultimate maqasid or aims/purposes of the shariah- the Islamic legal system.

Together with these the qawaid fiqhiyyah (juristic maxims) provide us with the most innovative and exciting possibilities to analyse an issue such as reparations which is under discussion here today.  

In a very important paper “TRANSITIONAL JUSTICE AND REPARATIONS:

A Legal Perspective on Remedies in Transitioning Societies”,  Professor Adv. Chitengi Sipho Justin; a DAAD Scholar & Advocate of the High Court in Zambia identifies some:

Any transitional society is likely to face the challenge of retributions for its citizenry that had fallen victim to grave violations of human rights perpetrated by the successive regime(s). There is general agreement that the challenge today lies in ensuring respect for basic human rights and laws through various mechanisms such as reparations. The definition of reparations is contested at best; at worst, it is murky or esoteric.

However, working definitions exist in both statutory law and case law.

For example, Article 75 of the International Criminal Court Statute (hereinafter referred to as the “ICC Rome Statue”) states thus: “The Court shall establish principles relating to reparations…including restitution, compensation, and rehabilitation.”

The Permanent Court of International Justice implicitly defined reparations, in the Chorzów Factory case, when it ruled that ‘reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would, in all probability, have existed if that act had not been committed.’

From the victims’ standpoint reparations occupy a special place in a transition to democracy in that it acknowledges their plight, gives them back their dignity, ease their economic burden and assures them of non- repetition of these abuses.

Reparations, thus serve as one of the accountability mechanisms available to transitional societies. What we need in any discussion of the issue is an appreciation of the genesis and development of this right; the present status of this right under international law; the question of its enforceability; and to identify issues pertinent to the implementation of reparations at the domestic level.

Reparations date back to ancient times, especially in cases of transition from authoritarian regimes to democratic governance though they were pragmatically treated as simply philosophical theories. This was largely due to the historical notion that individuals could not be recognised as subjects of international law, hence, unable to access legal redress such as reparation for state-sponsored abuses. The individual’s right to reparations evolved out of the post- Second World War human rights regime, which firmly established the individual as a bearer of rights and duties under international law. West Germany’s efforts to compensate Holocaust survivors in 1952 were the first example of a large-scale, modern reparations programme.

Historically, after 1952 the fledgling reparations movement largely stagnated until the last two decades of the twentieth century. Since then, with the evolution of international human rights law and the international community’s quest to circumvent recurrence of the atrocities committed during the period, reparative efforts have acquired a great deal of attention. These efforts have now been promoted due to the proliferation of processes defined as ‘transitional justice’ and over the years, the development of reparations has taken diverse mechanism as evidenced in the establishment of the 1983 UN Trust Fund for Victims of Torture and now the ICC’s Trust Fund for Victims.

The 1990s brought about an era of accountability for former government officials and heads of state who had committed human rights violations and other abuses of power while in office against their own populations. Since then, at least 69 former heads of state have been formally prosecuted for serious human rights violations and or economic crimes committed during their administration with reparations ordered for victims in some instances. This era was historically a landmark in that it coincided with the massive filing of class action suits in the American courts against three prominent Swiss banks under the 1789 Alien Torts Claims Act (ATCA) for their complicity in the Holocaust. As such, it rekindled and reinvigorated renewed interest in the quest of repairing historical injustices which had stalled after 1952. This led to the launch of several complex issues of reparations in transitional states onto political agendas worldwide.

Debates in this line were held at various international forums including the World Conference against Racism. By the late 1990s a ‘global frenzy to establish reparations as a right’ was brewing in courtrooms, NGO offices, legislatures and newsrooms. This was supported by the establishment of internationally-supported tribunals and claims commissions through which the victims of human rights violations could pursue their claims.

However, these developments have been problematic. For example, between the second half of the twentieth century and the first decade of the twenty first, transitional societies around the world experienced the difficulty of satisfying simultaneously individual and collective needs of individuals, and overall, the constant tension between the provision of peace and justice.

Therefore, the right to reparations was buttressed in the late 1980s and early 1990s with the emergence of the democratic dispensation as a response to political changes in Latin America, Eastern Europe and African countries moving from repressive regimes to democracy. Prior to this, the right to reparations was looked at solely from the standpoint of international humanitarian law and not human rights violations by oppressive governments against their own citizenry. To date, this right has continued to develop taking established forms such as monetary compensation as in the case of El Salvador and guarantees of non-repetition.16 Another notable form is restitution as in the Jewish Holocaust survivors’ case where the Swiss Banks reached a settlement of US$ 1.25 Billion in 1998 as return of looted money and in lieu of chattel exploited from the holocaust victims. Others include satisfaction and moral reparations such as truth revelation in the case of South Africa where we have had our own TRC. I have strong criticism of that process but will not use this forum to express these. Rehabilitation as in the case of Bosnia and Herzegovina, where victims demanded free access to medical and psychological care, is another example of a recent development.

It would be inappropriate to discuss the Islamic legal perspective without an appreciation of the status quo of reparations under International Law since the shariah law in modern times has always worked in tandem with other legal systems.

As espoused by Priscilla Hayner, under international law the right to reparations is well established only for certain perpetrations bordering on human rights violations such as unlawful detention inter alia. Otherwise, the right to reparations is generally inferred from the victim’s right to an effective remedy as per Article 2(3) of the International Convention on Civil and Political Rights. Further, according to Article 1 of the International Law Commission’s 2001 Articles 22, it is a general principle of public international law that any wrongful act that violates an obligation under international law, gives rise to an obligation to make reparations as enunciated in the Chorzów Factory case.

As the field of transitional justice expands, reparative remedies have begun to gain an important foundation in international law. This is evident from the 1988 decision of the Inter-American Court of Human Rights in the case of Velásquez Rodríguez v. Honduras, in which the Court found that all states have four fundamental obligations in the area of human rights. One of these fundamental obligations, the Court held, is to ensure reparations for the victims of the violations. These principles have been explicitly affirmed by later decisions by the court and endorsed in decisions by the European Court of Human Rights and by UN treaty body decisions such as the Human Rights Committee. The ICC Rome Statute also enshrines this obligation.

Although The Hague Convention and Additional Protocol (I) speak only of compensation, reparations encompasses compensation as listed in the UN Draft of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law. By analogy, reparations is, therefore, covered by the Hague Convention. Another important international instrument on reparatory measures is the UN Draft Principles on Housing and Property Restitution for Refugees and Internally Displaced Persons which has already served as a valuable new tool to guide the reparation programmes in Kosovo, Tajikistan, Guatemala and East Timor under the auspices of the Dayton Agreement. The controversial Dayton Agreement did set a new standard in international law by incorporating reparations into peace agreements by including provisions on cooperation with the ICTY, and establishing mechanisms to provide housing and property reparations to those displaced in the transitional phase.

How have reparations been enforced?

In transitional societies there are two main mechanisms of enforcing reparations whether at national or international level. On the one hand, we have Court- Order approach (COA) and on the other hand we have Administrative Reparations-Programmes approach (ARPA). COA entails the victim(s) commencing court proceedings in which they claim reparations. Here the right to reparations only actuates after the Court has found for the plaintiffs (victims) and make an order for reparations. Examples include the South African Apartheid cases instituted under the ATCA. On the other hand, ARPA does not necessarily involve legal proceedings.

This approach is very common in instances where Truth Commissions have been constituted, and it is usually the Commission itself that will stipulate reparations as part of the solution package to repairing the past. Examples include the payment of pensions to the families of those who were killed or forced to disappear under Pinochet’s regime in Chile and the reparations for apartheid victims paid from the President’s fund in South Africa.

Institutions of enforcement include national and international courts. Under national courts, we have national courts of the State of commission and National courts of third States. Suing a State for damages before the courts of a third States would often fail due to State immunity. However, in some States, the responsible individuals can be sued, even if neither party has any connection to that State. Certain civil law States such as Germany provide for “civil universal jurisdiction” if the claim is brought as action civile in a criminal trial based on universal jurisdiction. Equally, in the USA, civil universal jurisdiction is possible under the ATCA but independent of criminal proceedings for claims in human rights violation cases.

At the international level there is the International Criminal Court and the Permanent International Court of Justice. At regional level, there are courts including the Inter-American Court of Human Rights, the European Court of Human Rights and the African Court of Human Rights. Others include specially mandated bodies such as the ICTY and the ICTR, and ad hoc claims commissions such as the United Nations Compensation Commission.

Pertinent Issues of Implementation at Domestic Level

Many countries possess robust domestic laws on human rights and reparations, or have integrated international legal standards on these issues into national law. However, using national laws to secure redress is a complex process that is often inaccessible to marginalised victims due to various issues as below:

Firstly, most new Governments would object to individual suits for reparation on the basis that the victims’ rights have since become statute barred. For example, in the case of Arce v. Garcia the Government of El Salvador raised this preliminary objection. However, on 4 January 2006, a United States appellate court upheld a district court decision to equitably toll the statute of limitations on the plaintiff’s claim until the end of the civil war in El Salvador. Plaintiffs, Salvadoran refugees, claimed they had been tortured by soldiers in El Salvador during the course of a campaign of human-rights violations.

Secondly, some new Governments are unwilling to make reparations arguing that the perpetrators had immunity by virtue of their official capacity at the time of the perpetrations. This issue was raised in the Nigerian case of Enahoro v. Abubakar. However, on 23 March 2006, a United States appellate court held that the defendant was not immune from suit under the Foreign Sovereign Immunities Act (FSIA), as the Act applies only to foreign states and their agencies, not to individual members of government. The plaintiffs had alleged that the defendant, as a member of the military junta that had ruled Nigeria from 1993-1999, was responsible for torture and killing. The appellate court remanded the case for further proceedings.

Thirdly, certain new Government would oppose the victims’ claim for reparations on the basis that they were not adequately identified as the victims hence lack sufficient locus standii to claim. In extreme cases, even national security is argued as a valid factor in consolidating the issue of locus standii as in the case of Arar v. Ashcroft. On 16 February 2006, a United States district court dismissed plaintiff’s claim, arguing that the plaintiff lacked standing, and citing national security concerns. The plaintiff had claimed he was tortured first in American, and then in Syrian custody, where he had been transferred under the United States’ “extraordinary rendition” programme.

Fourthly, harmonization of domestic reparation programmes with international law standards becomes an issue. For example, the fall of the Fujimori regime in November 2000 brought new possibilities for a shift towards respect for human rights in Peru and the development of a different national consciousness about the abuses of the preceding twenty years. The domestic proposal for arbitrary reparations to some victims was considered a mockery by the international community. This international pressure brought about the biggest advance in late July 2005, when the Peruvian Congress was prompted to pass the Law Creating the Comprehensive Reparations Plan consistent with international law. The list is long; suffice to mention the above due to the scope of the paper.

From the foregoing, and indeed on a plethora of authorities, it is clear that the idea of compensation in proportion to harm, raises insurmountable problems. Hence, there is need to reconceptualise fairness in terms of how reparations serve to promote the goals of recognizing victims, promoting civic trust, and fostering social solidarity. While in each individual case reparations can only address the consequences of a violation, at a more general level a body of law is strengthened if a breach thereof gives rise to an entitlement to reparation. This is the role of reparations in deterring possible future recurrences of large-scale human rights violations.

An often overlooked harm is the sociological and psychological harm suffered by the community. Within the framework of a discourse of community rights, we need to address this much neglected suffering which often falls underneath the radar of the human rights based legal discussions we have identified here. Community rights ensure social cohesion, provide for a sense of belonging and are a check against fractured and dysfunctional societies. Communities-cultural, religious and linguistic-are able to contribute to nation building and provide the social capital needed in emerging democracies such as ours only because they are whole and coherent. Apartheid legislation, especially the Group Areas Act meant that the sites of religious traditions and cultural practices were destroyed. By way of example let me site the example of the Muharram festivals which would take place in Grey Street Durban during this Islamic month of Muharram annually. The tradition has died as a result of the Group Areas Act. The psychological impact, and the impact on the collective dignity of the community as a result is immeasurable. This is only one example, I am sure that a keen observer will be able to find many more. A catastrophic cultural loss, such as this, on the entire Muslim community must, you will agree, impact on its ability to contribute to nation building and the national project. The question that this begs, and to which I have no answer, is:  how does one effect reparations for a cultural and religious loss and what are the mechanisms of restitutive justice in this case within the context of South Africa?

Before we look at the question of qawaid of qawaid al-fiqhiyyah as it pertains to the issue of reparations, it may be in order to tease out some of the issues.   

The legal concept of reparation has two components: the right of the victim of an injury to receive reparation, and the duty of the party responsible for the injury to provide redress.

Reparations can be sought by individuals through judicial systems or they can be policies introduced by the state to address the concerns or needs of a wider populace. While the first strategy is instrumental in creating legal precedent, the second is a more efficient way to recognize the concerns of more people.

Both these will be in keeping with shariah law, where the finding of the independent qadi court or the reform instituted by the caliph of the time are the result of their independent reasoning-ijtihad-and are equally valid instruments in the administration of the Muslim polity.

The United Nations Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law describes five formal categories of reparations: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

1. Restitution – measures which serve to “restore the victim to the original situation before the gross violations…occurred.” This can include: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return of one’s place of residence, restoration of employment, and return of property.

2. Damages Compensation – the provision of compensation “for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case.” Such damage includes: physical or mental harm, lost opportunities, material damages and loss of earnings, moral damage, cost of legal, medical, psychological, and social services.

3. Rehabilitation – medical, psychological, social services, and legal assistance

4. Satisfaction – various measures which include the cessation of human rights violations and abuses, truth-seeking, searches for the disappeared, recovery and reburial of remains, judicial and administrative sanctions, public apologies, commemoration, and memorialization.

5. Guarantees of non-repetition – reforms ensuring the prevention of future abuses, including: civilian control of the military and security forces, strengthening an independent judiciary, protection of civil service and human rights workers, the overall promotion of human rights standards, and the establishment of mechanisms to prevent and monitor social conflict and conflict resolution.

Shari’ah law has evolved in a similar way and here it may be relevant to mention the two operative principles within the maqasid-purposes of the Islamic law as identified in the jurisprudential literature. They make an argument for the dual nature of the maqasid –ibqa and hifz-which we may call preservation and protection. “What affirms its elements and establishes its foundations” and secondly “what repels actual or expected disharmony”. The focus of latter and hence that of modern scholars has been on the aspect of protection alone. Each purpose, however has a positive or aggressive aspect and a negative or defensive aspect. From the positive aspect, the interest is secured by establishing what is required by the shariah through each of the maqasid. Thus the interest of Din-religion is secured by the creation of conditions that facilitate worship and establish the other essential pillars of Islam. The interest of life is secured by creating conditions for the existence of life. The interest of progeny is supported by facilitating and establishing family life. The interest of intellect is secured by promoting the means for the growth of the intellect. The interest of wealth is secured by creating proper conditions for the growth of wealth. From the defensive or protective aspect interests are secured by preventing the destruction or corruption of the positive aspect. Thus, jihad is prescribed for defending Din (Religion), while prayer, fasting, pilgrimage and zakah help to establish it. It is the duty of the Imam to ensure the proper conditions for both, while it is binding upon each subject to fulfil these duties, individually and collectively. Life is preserved through the provision of sustenance, the maintenance of good health, while it is protected or defended through the provision of penalties for those who destroy life without legal justification. Nasl (progeny) is promoted through the maintenance of healthy family life and the institution of marriage, while penalties are provided for those who would corrupt it and destroy its values. The preservation of aql is achieved through the provision of education and healthy conditions for its growth, while penalties are provided for the consumption of substances that destroy the intellect. Preservation of wealth is achieved by encouraging growth, while theft or misappropriation of wealth is punished through penalties. This is a brief overview of the five purposes of the shariah; the preservation and protection of the Din (religion); Life, Family, Intellect and Wealth will serve as a background for an understanding of the actual legal maxims which are derived not from this jurisprudential philosophy but rather from a distillation of the substantive law.

The Muslim jurist-consult, therefore, when looking at an issue such as reparations will assign himself the following main tasks:

1. To settle the disputes in the light of the existing case law.
2. To extend the law, if necessary, from the existing general principles of Islamic law.
3. To formulate a new principle provided that the new principle meets the conditions laid down by the jurists.

The established principles of Islamic law are a source for the Muslim jurist

The first type of established principles are those that are either stated explicitly, in the teacts of the Quran and the Sunnah (Prophetic Tradition) or are discovered by the implication of these texts. The second type of principles are those that have been derived from a large number of cases by the jurists. The derived principle may or may not have the apporoval of ijma, what makes it an established principle is the recognition it receives from the jurists of  a school.

Let us look at each of these categories in turn. By way of example I have selected a few of the maxims which may apply to the issue of reparations. I have no intention of discussing each in detail. Please fill in the blanks as I read a list to you:

The prohibition of riba

The prohibition of gharar (uncertainty or uncalled for risk)

The principle of liability for loss and entitlement to profit (al kharaj bil daman)

The principle of unjustified enrichment (akl al mal al batil)

The combined operation of these maxims and principles may determine the Islamic standpoint on reparations. Today if an Islamic state were to redraft legislation on the issue of reparations it would at a minimum have to keep in view these fundamental principles. This is not to say that these are the only principles that are operative in the Islamic verdict on reparations. There are other principles too, but these principles have a very wide application and cover the entire range of issues, whatever their nature.

The one maxim that can be used is one that states:  ' the oppressed is not obliged to take revenge from others. Revenge within reason can be taken from the oppressor but it must be ensured that it is within the required limits and also not disproportionate. Anyone besides the oppressor cannot bear the brunt of the actions of the oppressor. I suppose if you really want to, the modern day Israel example can be used. Palestinians are the direct oppressed people who have lost their property while the same is not the case with the Zionist occupiers.

Another maxim is that of 'adversity should be alleviated to whatever extent is possible'. If property is stolen, then if the actual property can be returned, then this should be the case. If the actual item is destroyed but is fungible, then the fungible should be returned and if the item is non fungible then its monetary value should be returned.

You can always leverage on the Islamic law of evidence when exercising reparation rights. There has to be a reasonable amount of proof of being disadvantaged etc. 

There is a famous juzi’ called mas'alatus zafar. It refers to when a creditor finds the property of his debtor, then there is some recognition across all legal schools that the creditor can claim what is due, without the consent of the debtor. The difference amongst the scholars is when the found property is of the same genus and type to the property given out in loan. The Hanafi school states that the creditor can only possess the property if it is of the same genus and type that was given in loan. If not of the same genus and type, prior consent of the debtor to cede over the property to the creditor is required.

In terms of economic theory, Nozicks entitlement theory is echoed here and is relevant to any discussion relating to reparations. I can't go into detail here but he basically refers to two principles. Justice in acquisition and justice in transfer. The former refers to when property does not belong to anyone then one can lay claim to it. The latter principle refers to when the acquisition of property by one person disadvantages another person, then redistribution is justified.

If any of the two principles are violated, then it gives rise to his third principle of Pareto inefficiency in the distribution of resources. 

The point I would like to make is that Islamic jurisprudence as a general theory of law and shariah law with its underpinnings of Islamic legal theory have a great deal to offer in terms of the issue of reparations. My plea is that the discussion and debate when we have reached the important point in the movement of implementation and taking decisions should necessarily draw from the Muslim judicial tradition. This is what inclusivity and recognition demands from us. This is what recognition and restoration of a people’s dignity demands from us. And this is what we as a community have to offer.

I thank you.