Reparation (legal)

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In jurisprudence, reparation is replenishment of a previously inflicted loss by the criminal to the victim. Monetary restitution is a common form of reparation.

Jurisprudence theoretical study of law, by philosophers and social scientists

Jurisprudence or legal theory is the theoretical study of law, principally by philosophers but, from the twentieth century, also by social scientists. Scholars of jurisprudence, also known as jurists or legal theorists, hope to obtain a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.

The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. When a court orders restitution it orders the defendant to give up his/her gains to the claimant. When a court orders compensation it orders the defendant to pay the claimant for his or her loss.

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In 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, reparation include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, whereby

Financial compensation refers to the act of providing a person with money or other things of economic value in exchange for their goods, labor, or to provide for the costs of injuries that they have incurred.

The guarantees of non-repetition is a component of reparations as stipulated in the United Nations Office of the United Nations High Commissioner for Human Rights resolution proclaiming 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.

A public apology is a component of reparation as stipulated in the United Nations Office of the United Nations High Commissioner for Human Rights resolution proclaiming 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. It is also defined as a restorative process intended to heal and to generate forgiveness on the part of the offended party, for the improper behavior or action of the offender. The process consists in three components: acknowledgment of wrongdoing, admission of responsibility and the action of the wrongdoer to compensate damages produced.

Acceptance of responsibility is a provision in the United States Federal Sentencing Guidelines providing for a decrease by 2 or 3 levels in offenders' offense level for admitting guilt and otherwise demonstrating behavior consistent with acceptance of responsibility, such as ending criminal conduct and associations. It amounts to a sentence reduction of about 35%. The 3-level reduction is only available to defendants with an offense level of 16 or greater, and it requires a timely guilty plea. Federal plea agreements usually include a stipulation that the government will support granting the defendant the acceptance of responsibility reduction. The guideline states, in reference to the 2-level reduction:

Memorialization generally refers to the process of preserving memories of people or events. It can be a form of address or petition, or a ceremony of remembrance or commemoration.


History

The principle of reparation dates back to the lex talionis of Hebrew Scripture. Anglo-Saxon courts in England before the Norman conquest also contained this principle. Under the English legal system judges must consider making a compensation order as part of the sentence for a crime. Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 requires the courts to explain their reasoning if they do not issue a compensation order. [1]

Anglo-Saxons Germanic tribes who started to inhabit parts of Great Britain from the 5th century onwards

The Anglo-Saxons were a cultural group who inhabited Great Britain from the 5th century, and the direct ancestors of the majority of the modern British people. They comprise people from Germanic tribes who migrated to the island from continental Europe, their descendants, and indigenous British groups who adopted many aspects of Anglo-Saxon culture and language; the cultural foundations laid by the Anglo-Saxons are the foundation of the modern English legal system and of many aspects of English society; the modern English language owes over half its words – including the most common words of everyday speech – to the language of the Anglo-Saxons. Historically, the Anglo-Saxon period denotes the period in Britain between about 450 and 1066, after their initial settlement and up until the Norman conquest. The early Anglo-Saxon period includes the creation of an English nation, with many of the aspects that survive today, including regional government of shires and hundreds. During this period, Christianity was established and there was a flowering of literature and language. Charters and law were also established. The term Anglo-Saxon is popularly used for the language that was spoken and written by the Anglo-Saxons in England and eastern Scotland between at least the mid-5th century and the mid-12th century. In scholarly use, it is more commonly called Old English.

England Country in north-west Europe, part of the United Kingdom

England is a country that is part of the United Kingdom. It shares land borders with Wales to the west and Scotland to the north-northwest. The Irish Sea lies west of England and the Celtic Sea lies to the southwest. England is separated from continental Europe by the North Sea to the east and the English Channel to the south. The country covers five-eighths of the island of Great Britain, which lies in the North Atlantic, and includes over 100 smaller islands, such as the Isles of Scilly and the Isle of Wight.

Powers of Criminal Courts (Sentencing) Act 2000

The Powers of Criminal Courts (Sentencing) Act 2000 (c.6) is a consolidation Act of the Parliament of the United Kingdom that brings together parts of several other Acts dealing with the sentencing treatment of offenders and defaulters. It was drafted by the Law Commission and the Scottish Law Commission.

See also

Notes and references

  1. Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 178. London: Hodder Arnold. ISBN   0-340-89991-3.

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At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must usually show that a breach of duty has caused foreseeable loss. To be recognised at law, the loss must involve damage to property, or mental or physical injury; pure economic loss is rarely recognised for the award of damages.

International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.

Reparations for slavery is a proposal that some type of compensation should be provided to the descendants of enslaved people in the United States, in consideration of the forced and uncompensated labor their ancestors performed over centuries. This compensation has been proposed in a variety of forms, from individual monetary payments to land-based compensation related to independence. The idea remains highly controversial and no broad consensus exists as to how it could be implemented. There have been similar calls for reparations from some Caribbean countries and elsewhere in the African diaspora, and some African countries have called for reparations to their states for the loss of their population.

Reparation may refer to:

War reparations are payments made after a war by the vanquished to the victors.

A legal remedy, also judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will.

International criminal law

International criminal law is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. The core crimes under international law are genocide, war crimes, crimes against humanity, and the crime of aggression. This article also discusses crimes against international law, which may not be part of the body of international criminal law.

Transitional justice consists of judicial and non-judicial measures implemented in order to redress legacies of human rights abuses. Such measures "include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms". Transitional justice is enacted at a point of political transition from violence and repression to societal stability and it is informed by a society’s desire to rebuild social trust, repair a fractured justice system, and build a democratic system of governance. The core value of transitional justice is the very notion of justice—which does not necessarily mean criminal justice. This notion and the political transformation, such as regime change or transition from conflict are thus linked toward a more peaceful, certain, and democratic future.

Theo van Boven Dutch legal scholar

Theodoor Cornelis (Theo) van Boven is a Dutch jurist and professor emeritus in international law.

Impunity means "exemption from punishment or loss or escape from fines". In the international law of human rights, it refers to the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress. Impunity is especially common in countries that lack a tradition of the rule of law, suffer from corruption or that have entrenched systems of patronage, or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities.

Izzat Yousef Al-Maqrif is a prominent Libyan political prisoner who was born in Benghazi, Libya in 1952, formerly a senior member of the NFSL. During a stay in Egypt, on the evening of March 12, 1990, Izzat Yousef Al-Maqrif was taken for routine questioning, and hasn't been seen since. Izzat is the brother of former Libyan Head of State Mohammed Magariaf.

The issue of Armenian Genocide reparations derives from the Armenian Genocide of 1915 committed by the Ottoman Empire. Henry Theriault, writing in the Armenian Weekly, states these might be of financial, estate or territorial nature, and could cover individual or collective claims as well as those by the Republic of Armenia. It is questioned whether the Republic of Turkey, successor state to the Ottoman Empire, will ever enter the debate, or whether Turkey bears any legal responsibility to make reparations for events that occurred under another state.

Reparations are broadly understood as compensation given for an abuse or injury. The colloquial meaning of reparations has changed substantively over the last century. In the early 1900s, reparations were interstate exchanges : punitive mechanisms determined by treaty and paid by the surrendering side of conflict, such as the World War I reparations paid by Germany and its allies. Now, reparations are understood as not just war damages but compensation and other measures provided to victims of severe human rights violations by the parties responsible. The right of the victim of an injury to receive reparations and the duty of the part responsible to provide them has been secured by the United Nations.

Victims' rights are legal rights afforded to victims of crime. These may include the right to restitution, the right to a victims' advocate, the right not to be excluded from criminal justice proceedings, and the right to speak at criminal justice proceedings.

Reparations for slavery

Reparations for slavery is the idea that some form of compensatory payment needs to be made to the descendants of Africans who had been enslaved as part of the Atlantic slave trade. The most notable demands for reparations have been made in the United Kingdom and in the United States. Caribbean and African states from which slaves were taken have also made reparation demands.

The National Reconciliation Commission was established in January 2002 by the parliament of Ghana. The goal of the commission was to establish an "accurate, complete and historical record of violations and abuses of human rights inflicted on persons by public institutions and holders of public office during periods of unconstitutional government." The Commission was formed after a new democratic party won the elections in 2000. The Commission covered human rights violations in Ghana from 1957 to 1993. It looked into government abuses and military coups staged by former president Jerry Rawlings. The members of the Commission worked until the end of 2004.

The Korean Council for the Women Drafted for Military Sexual Slavery by Japan is a Korean non-governmental organization advocating the rights of the surviving comfort women and lobbying the Japanese government to take actions of a full apology and compensation. Since its foundation in 1990, the Korean Council has been operating on national and transnational stages. Within South Korea, the Council has been helping the former comfort women and encouraging the Korean government to resolve the issue. At the same time, the Council has been asserting responsibilities of Japan and bringing the issue to international human rights forum such as the UN Commission on Human Rights and the Asian Solidarity Conference. The movements of the Council are directly concerned to recover the human rights of the victims of Japanese military sexual slavery, and are broadly in pursuit of preventing wartime crime against women and building peace.

Peru's Truth and Reconciliation Commission (TRC) was a truth and reconciliation commission established by President Alejandro Toledo to investigate the human rights abuses committed during the 1980s and 1990s. The TRC was a response to the violent internal conflict between 1980 and 2000 during the administration of Presidents Fernando Belaúnde (1980-1985), Alan García (1985–1990), and Alberto Fujimori (1990–2000). The commission's mandate was to provide a record of human rights and international humanitarian law violations committed in Peru between May 1980 and November 2000, as well as recommend mechanisms to promote and strengthen human rights. The TRC reported on the estimated 70 000 deaths, assassinations, torture, disappearances, displacement, employment of terrorist methods and other human rights violations executed by the State, Shining Path, and the Túpac Amaru Revolutionary Movement. The report concluded that there is both institutional and individual accountability, as well as identifying racial and cultural factors that became a catalyst for conflict.