Governments Should Pay Compensation For Terrorist Atrocities Carried Out By Their Citizens
In the beginning of the societies, people gave their trust in a group of person for the administration, organization, control and protection of the state. When Constitutions appears the social contract took life. This security breaks when one, or a group of person, try to destabilize the harmony chasing their own interests.
Now we need to define Terrorism. Is a form of warfare that has psychical, behavior and psychological impact, This concept has a lot of interpretations and ramifications, and it depends of the level of damage done by the terrorist. There is eight principal elements for recognise this type of actions: “The violence, the required intention, the nature of the victims, the connection of the offender to the State, the justice and motive of their cause, the level of organization, the element of theatre and the absence of guilt” [].
By other hand, when we talk about compensation, it may be awarded in the cases that the offender cannot be prosecuted or punished, and its then when the government has to intervene to do justice and maintain the order, cause the legal disposal does not satisfies the community needs .
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If the Government being guarantor of the security looses control in this subject, its barely logic that he has to compensate the victims of his negligent development in one of his foundations. From the basic principle of the protection of our lives depends the posibility to embrace other rights described in different Constitutions around the world.
Is then an obligation of the Government to protect in fact the citizens, and in case that it doesn´t occurs, it has to compensate it. Also, the purpose of the criminal law is to prevent and suppress acts that injure or endanger fundamental interests that affect the lives of human beings. [], If this fails, means that the governments has certain responsibility for his lack of action and therefore must pay for the damage.
For there to arise an obligation for a party to do or not to do a
certain act, there has to be a law raising that obligation. For
example, I am obliged to pay 30% of my taxable income as tax to my country. This obligation arises out of the law which states that I
must do this act. It also carries with it certain penalties that might
be applied for non-compliance. Following this logic, one can clearly observe that there stands no such obligation for the government of a nation. No law, no sanction, no treaty, nothing. The only obligation to be found, if we were to stretch our imaginations, is a moralistic obligation. However, morality dictates that we be kind. Yet, when I do not reach out to fill a beggars bowl, I don’t recall being hauled up for it. It is also submitted that a government of a particular nation is only responsible to the citizens of its own nation. That is why
only citizens of a nation might vote in an election and nobody else
Being a “citizen” demands loyalty and complete adherence to the law of the land. If one carries out a terror activity, that’s against the law of the land. Hence the individuals go beyond the law, which at no cost be accepted. Had the citizens been negligent and due to this negligence any atrocity occurs, then the support of the government is understandable. But activities such as terror as done with the intent of devastation which is in no way negligent and hence need to deserve the strictest of the punishment. No sympathy, no excuses.
Government would be financially starved if it starts doling out the compensation just because of the sheer rise in the number of terror attacks. Mostly the terrorists are found to be from the nations that are economically and politically unstable; added to this the additional burden of paying compensation, the governments would starve and would lead to further chaos in the home state. The taxes would increase and the country would see an increase in the crime rate and so and so forth
The compensation is a right of the victims; International law recognice that the victims of human rights serious violations deserve a proper repair, efective and fast. Compensation can be understand as the set of measures directed to repair damages suffered by the victims, and in some contexts compensation also can express recognition to the victims; can contribute to the creation of a new democratic and inclusive community and gives reasons to the people for trust in the Government again.
Insofar victims are effectively repair, the common good is protected. The people will feel safe and will support the government, this will avoid enormous insecurities that could be harmful to democracy.
Noting that the Rome Statute of the International Criminal Court requires the establishment of “principles relating to reparation to, or in respect of, victims, including restitution, compensation and rehabilitation” and requires the Assembly of States Parties to establish a trust fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, and mandates the Court “to protect the safety, physical and psychological well being, dignity and privacy of victims” and to permit the participation of victims at all “stages of the proceedings determined to be appropriate by the Court” []
Do the victims of terrorist attacks have rights, including the right to compensation? The answer to this predicament depends very much on where the attack takes place and the nationality of the victim. This is because many countries have not included these provisions in their national legislation, effectively leaving the victims and survivors of terrorist attacks empty-handed. This renders the international law which the opposition has quoted totally futile and ineffective.
There are two basic internationally recognized laws relevant to our case. The first, as correctly mentioned by our most worthy opponents is Rome Statute of the International Criminal Court. It
establishes personal criminal liability for genocide, crimes against humanity, war crimes and the crime of aggression. This is provided under Article 5(1). This provision is to apply legal inhibitors to regulate the conduct of individuals. The key terms here are 'personal criminal liability' and 'individuals'. It is clear that the role of the State has not been mentioned.
The second relevant statute is Draft Articles of the International Law Commission on State Responsibility. Under Article 8, acts committed by individuals “shall be considered an act of State under international law if the person or groups of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.” Now this can be read to mean that only and if only a State accepts complete liability for an act committed by its citizen will it be held accountable. What sort of State would accept that an act of terrorism has been authorized by it? As an example, Pakistan for more than a year vehemently denied any connection with the Mumbai massacre. Acts of terrorism are in most cases committed by narrow minded groups which do not represent the popular sentiment of a nation. They cannot be said to be State actors.
If the Government does not support the victims and does not compensate in a proper way, will be committing a serious discrimination, because one of the biggest duties of the governments are the protection to those defenseless.
The application and interpretation of the Principles of compensation are consistent with international human rights law and international humanitarian law and be without any discrimination of any kind or ground, without exception.
The statement given by India Ambassador H.E. Kamalesh Sharma,Permanent Representative of India to the United Nations in 3 October 2001 : “Some argue that a distinction must be drawn between freedom fighters and terrorists. To this, we would say, as the Secretary General reminded us on Monday, that the laws of civilized behavior should apply to all. Normatively, international humanitarian law does not permit methods or means that can only be described as terrorism in the pursuit of any cause. And the great leap forward in international law over the last few years has been the emergence of the norm that there can be no impunity for crimes that constitute a grave violation of human rights.” This is a great statement because covers all kind of victims, no matter what.
Why does a weighing scale have two sides? It requires two sides to be able to compare. In the same way the concept of equality requires, as an essential, that there must be something to compare with and then decided whether equality is being followed or whether discrimination is prevalent. For there to even be a question of discrimination, there must be countries offering compensation for terrorist activities carried out by their citizens to some victims and not to others. Since this is not the case, there can be no question of discrimination. For example, if I were to give a chocolate to one child and not give a chocolate to the other child, it would be discriminatory. However, if I do not give a chocolate to either, there is no question of discrimination. In fact, it is perfect equality.
The mode of international law as to this specific issue is very weak and hence there is no binding international law as such to bring this concept under its ambit
The concept of violent non state actors and how their acts, to a large extent absolve the state from any liability, be it monetary or of any other kind. Most of the terror attacks are covert operations which are totally outside the purview of the govt in the sense that the ruling mechanism has no idea that such and such attacks are being planned and thought to be perpetrated from their area of governance. Why should any govt be responsible for acts which it hasn't endorsed, authorised or has no knowledge of whatsoever..It's like holding a landlord responsible for some kids playing outside his boundary wall and how those kids ended up hurting a passerby. Just because the kids were found to be/ perceived to be within the boundary of his house, doesn't in any way render the landlord responsible for their reckless acts. Its merely for analogy purposes and for driving the point home that one can't be penalised for something which he didn't endorse
Preventing More Violence
Compensation can prevent more violence. Because the victims are less potentially to search revenge. As we can see in the Arabs vs. Hebrews conflicts, one of the causes for its existence yet, it's, as the Opp have showed, the absence of real compensation to the victims. In that conflict victims searching revenge end in taking active roles in the war, making more violence.
Another good example is the Colombia Conflict, a war which was born in the 60's which still exist. Why? One of the reason is that victim take part in the conflict as Guerrilleros or Paramilitares, for taking revenge of their dead relatives [[http://www.icdc.com/~paulwolf/colombia/colombiawar.htm]] That quest fo revenge could be stopped if Governments pay compesation to victims, because they are going to know the truth, the Governments will implement new ways to prevent new cases, and they are going to receive money for going ahead and reborn, rebuild a new life.
The opposition it seems is too simplistic in their arguments. They ought to be aware that no amount of compensation can ease the sufferings and pain of the aggrieved parties. The compensation offered cannot bring back their dead family members or their sole bread earners ever . So to equate their anguish with compensation is too naive to believe. According to our most worthy opponents once the compensation is awarded everything will fall in place, the anguish of the people will be restored and normalcy will be restored which is absolutely preposterous. These things sound good on paper but they are totally not possible if we take a pragmatic and a more rationale approach.
Comparing the Arab- Hebrews conflict which has been going on for over a century with non payment of compensation is absolutely absurd and defies all logic.
The conflict, which started as a political and nationalist conflict over competing territorial ambitions cannot just be solved by paying some money and sweeping everything under the carpet. If this were to be the case, this conflict would have been long over and every crime against humanity also for that matter could be brushed aside by paying compensation . Compensation cannot ease the sufferings and also bring down the intensity of revenge in any case and it is absolutely preposterous to believe that. http://en.wikipedia.org/wiki/Arab%E2%80%93Israeli_conflict
Preventing poornes and psychologic problems
In first place, A Victim of terrorism is some cases lose everything, house and home. In that cases, they are going to become IDP, Internally displaced person. The IDP creates circles of misery around the cities, because they run off from their village in order to find pace and work. But, in Cities they are not always work for all that people, specially because they don't have all the documents necessaries to take job. So, they are going to be poor. With financial compensation, Governments could prevents IDP, because people are going to have a base to restart their life, but it's also necessary that States creates the means to make easy the incorporation of IDP into cities and in the original village if possible.
Secondly, a victim of terrorism needs to know what happened. Terrorism can leave shocks in people, and order to recover of that shocks they need the compensation of the truth and a psychologic aid to overcome their situation. Otherwise they are going to become depressed, getting in our four point, or just taking a dark existence of their life.
Conflicts creates Victims all the times, but often they are abondoned and doesn't get the help they need to overcome all the despair, blood and harms that they lived. That's why they claim for Compensation, and Governments should pay it in cases of terrorist no matter what if the actions were taking by the militaries forces or not, as we have proved through this debate and can be appreciate in its three points of clash:
First, Opp stated several times that there is no obligation to Governments to pay compensation. But we have proved that indeed they have it. And that it's not only a matter of money, it's also about prosecution, finding the truth and bring garanties to the victims in order to prevent more violence, all that It's stated in the International Law Responsability and Treaties, the Purpose of the Criminal Law and the IACHR jurisprudence. So, it's not a matter of morality like Opp stated.
Second, there are important benefits with Compensation. We search the common good, because with it Governments are going to repair the victims and to return to them and all the nation the hope and trust in it. With that, Victims are not going to search revenge, so, we are preventing more violence. Futhermore, we bring help to victims to overcome the situation and reborn, preventing problems as Internally displaced person, circles of misery in the cities and the psychologic troubles. Of course, for accomplished all of those effects, Government should create a good Compensation System according with its capacities and needs, reminding that it's not only a matter of money.
Third, Opp hasn't showed benefits for no Compensations, through this debates they have accepted the need of compensations, and in their five point they proposed a System to materialized the present motion. Besides, they doesn't rebut our five point and only stated that compensation brings a problems in the finances of the State, but as we have mentioned, compensation is more than money, and there are international options for Goverments to get the money.
Then, Compensation is not only an obligation for Governments, but it also brings benefits for the State that they managed, bringing hope and opportunities to the Victims and all the Nation.
The definition of compensation, as given by our most worthy opponents,
is not satisfactory in the least. It simply covers only those
occasions wherein the injured party cannot be satisfied by prosecution
or punishment of the offender. Compensation, as a form of punishment,
is applied in many more cases and as a punishment complimentary to
other forms of penal action. Hence, it is clear that restricting the
ambit of the term ‘compensation’ is ill advised.
The worth of life is difficult to measure, to say the least. Yet it is
proposed that a simple monetary compensation be offered for an act so
cruel and violent that one cringes from imagining the outcome. Were
this blasphemous idea be allowed to transform into action, the richest
nations in the world would find themselves celebrating Christmas every
day of the year. A blatant and cold blooded attack would no longer be
required to be ‘condemned’ in the media. Simply the signing of a
cheque would be enough. We shudder to think how much our most worthy
opponents consider our lives to be worth? The correct way to deal with
terrorism is the good old trusted hanging and the other forms of
severe capital penal action.
In our second point we have stated that, according to International Law, compensation can be understand as the set of measures directed to repair damages suffered by the victims.
Our definition doesn't exclude the application of Compesation in penal prosecution, and also, It doesn't refer only about money.
Victims have rigths, and one of them is compensation with an investigation which can reveal the true for them, because they have the rigth to know what happens. For example, Mothers of the Plaza de Mayo doesn't search money for all the atrocities that their children and grandchildren suffered in Argentinan Dictatorship, thay reclaim they right to know [[http://bit.ly/cL1EZB]].
Another measures are public apologies, and indeed money. That's why it's not only a metter of measure the life of another one in gold.
Also, Opp have stated that "The correct way to deal with terrorism is the good old trusted hanging and the other forms of severe capital penal action", but aren't we preventing more terrorism with compensation? aren't we stopping more violence??
An un satisfied victims is a potential source of terrorism. In Colombia, for example, due to the Governement don't pay attention to Guerrilla adn don't bring protection and investigations to the landholders, these creates their own military force, the Paramilitaries, who afterward became a source of terrorist and a sponsor of the drugs.
Real and practical example
The debate reads 'Governments Should Pay Compensation For Terrorist
Atrocities Carried Out By Their Citizens'.
It may also mean citizens of a particular country launching attacks in
other country, so the question that arises is that should the
government of that country pay up for the acts of their citizens.
Lets not stretch our imagination too far and zero in on the 26 /11
massacre ie the Mumbai attacks. The conspiracy to inflict that attack
was hatched in Pakistan and the perpetrators of those attacks were all
Pakistanis which has been proven beyond doubt. According to
investigations the attackers traveled by sea from Karachi, Pakistan
across the Arabian Sea, hijacked the Indian fishing trawler 'Kuber',
killing the crew of four, and then forced the captain to sail to
Mumbai. After killing the captain, the terrorists entered Mumbai on a
rubber dinghy. The attackers stayed and were trained by the Lashkar-e-
Taiba in a safehouse at Azizabad near Karachi before boarding a small
boat for Mumbai and thereby unleashing a bloody wave of terror attacks
killing nearly 200 people and injuring many others.
Pakistan itself acknowledged that the conspiracy to launch these
terror attacks was planned on their soil. But inspite of these
evidences, it was not incumbent on the Pakistan to pay up for these
attacks since there is no sanction or any international law for the
same. There was not even a penny paid by Pakistan for a sponsored
terror attack on an other soil and no body has made a hue and cry
And also the this issue of compensation is not restricted to just
Mumbai attacks but other plethora of attacks that have been launched
by Pakistan by exporting terror to India and still walking scot free
on all instances. http://www.rediff.com/news/2009/feb/12mumterror-part-of-2611-conspiracy-was-planned-here-admits-pak.htm http://sify.com/news/pakistan-officially-admits-kasab-its-national-news-national-jegu0dajfig.html
Contrary of what Opp said, the International Law indeed compels Govermments to be responsible of the actions of their citizen, as a parents is about the children's. Because in the most times, terrorist is born due to the nonconformism of citizens about political, economics, justice and social situations, all of them are in charge of the State.
But, there is with a doubt, difficults to apply the International Law, and that why there are case like that. States need to sign the accord and taking it in practice, and becasue of the absence of a Mandatory and Compulsory Global power, somecountries decide not to respect these treaties.
Superior Criminal Responsibility
The principle of superior criminal responsibility, in simple words,reads that the superior, whether it be a state or non-state actor,
shall be responsible for the actions of his or her inferiors. it has been expressly mentioned and is considered a valid principle in international criminal law, despite the certain amount of criticism it has received over the past decade. also, unfortunately, recent ICTR
and ICTY judgments have tried to broaden the law to include activities of military leaders and also to the extent mentioned as out debate motion. however, till now , NO ICTR OR ICTY JUDGMENT HAS EVER DEALT WITH THE QUESTION OF COMPENSATION NOR HAS IT EVER AWARDED COMPENSATION to any individual affected by such crimes against humanity. the logic behind it is that under international law, it is a fundamental rule of international criminal law that the in case individual who are citizens of another country are tried in another country then only the CITIZEN shall be found guilty and NO ONE ELSE. In case it is wanted that the government should be found guilty, then the person must be tried in his own country itself and the government must be found guilty by way of negligence.
So it clearly proves the point that the government cannot be forced to pay in every case http://www.enotes.com/genocide-encyclopedia/superior-command-responsibility http://en.wikipedia.org/wiki/Command_responsibility
First, we have to emphasis that Opp have stated that "the government cannot be forced to pay in every case", that means that they recognize that they are cases in which government should pay compensation.
Second, contrary to what they have said. Countries are international responsable for any violation to any international obligation, no matter the source of it.
Third, they said that neither International Courts victims have gotten compensation. However, Inter-American Court of Human Rights have made a lot of them, as we can appreciate through their jurisprudence, Also, IACHR have said that States doesn't fulfill the International Obligations when they don't create the means for getting that accomplishment [[www.corteidh.or.cr]] [[http://www1.umn.edu/humanrts/iachr/series_C.html]]. There are plenty of cases, some of them are "Barrios Altos massacre case" 2001 [[http://www.worldlii.org/int/cases/IACHR/2001/5.html]] and "Plan de Sánchez massacre case" [[http://www.corteidh.or.cr/docs/casos/articulos/seriec_116_ing.pdf]].
In both of them, the States were condemned for act commitment by their citizen, because they doesn't fulfill the victims rights to be protected in first place, in order to prevent the attacts. Secondly, they doesnt´t fulfill an investigation for finding the truth and finally they were obliged to compensate the victims in all ways (truth, money, protecction).
Counter point to Columbia's reply to superior criminal responsibility
It seems “learned” opponents have chosen to harp upon baseless examples which have absolutely no bearing with the present motion. They have chosen to try and mislead and misrepresent the facts without it seems, even bothering to READ the judgements
1. There has been a blatant misrepresentation of facts on the part of the opponents of the "Barrios Altos massacre case" 2001. Firstly, the exact decision of court was observed as quoted verbatim below:"To pay the costs and expenses incurred by the alleged victims and/or their next of kin while litigating this case both in the domestic sphere and before the Commission and the Court, together with reasonable fees for their lawyers.” As the statement itself reads, compensation was awarded to pay the costs incurred by the alleged victims and was certainly not compensation for the atrocities committed by the defendants. Even a basic understanding of English grammar is enough to realise that there is a fundamental difference between “costs” and “compensation”. Moreover, Secondly, according to the facts of the case:“The judicial investigations and newspaper reports revealed that those involved worked for military intelligence; they were members of the Peruvian Army who were acting on behalf of the “death squadron” known as the “Colina Group”, who carried out their own anti-terrorist program.”Therefore, the reason Peru was even indicted in the first place was because its subordinates carried out the massacre, thus bringing it under the principle of “superior criminal responsibility”, which, as has already been submitted, DOES NOT PROVIDE FOR COMPENSATION TO VICTIMS. Moreover, another reason the Peruvian government was involved was the issue of the validity of its amnesty laws and their consonance with the American convention of human rights. Similarly, even in the Plan de Sánchez massacre case, opponents have chosen to mislead and misrepresent the facts, in this decision as well, the court ordered
About "Barrios Altos Massacre case", Opp states that it doesn't correspond, but:
1. Indeed, in the attack was involved the Peru Government in a anti-terrorist mission. But as in Irak the Saddam Hussein's Government is considered a terrorist one, in Peru the Fujimori's Government is also considered like that.
2. This case proved that it doesn't matter if the action is taken by the government for a "reasonable reasons", they are responsible.
3. The IACHR estableshid in the sentence:
4. There is, in fact, a different between "Costs" and "Reparations". The first are related to the expenses fo the procedures, and the second to the compensation to the victims. Concerning reparations, the courts decides, among others orders:
5. In that order of ideas, we have discarded what Opp have stated in this point.
About "Plan de Sánchez Massacre case", the Massacre was commited not only by military forces, but also by paramilitaries ones. And the State was found responsable not only by the actions of the first. In both cases, there was a lack of garanties in prosecution
Set up an international fund to pay compensation
The more viable alternative hence is to create an international fund for victims of terrorism. Terrorism is a global phenomenon and we need a global solution to this menace so that the damage is mitigated to a certain extent . This view of setting up an international fund was even backed by the UN since the government cant pay every time . So an international fund for compensation will serve better is a more viable alternative instead of calling on the government to pay up for acts of terror.
First. we have to emphasize that with this point, Opp is showing that they are in favor of compensation.
Second, if a International Fund is created, where does the money come from? As all the International Organism, mainly from the Governments. So, they are just proposing a system to materialize the present motion.
Third, actually if a Government have to pay and it doesn't have the money, they can ask for loans either to internatioal organism (as WBG, IMF, IADB) or national ones. Indeed a loan is a burden for poor countries, but if it well used not. And, We have to remind that compensation to victims is not only about money, it's also about prosecution, finding the truth and preventing more harm to the victims,as we have stated through this debate.
Counter point to 'Preventing poornes and psyscological problems'
The proposition has made two sub-points under this head. therefore we are posting this point as a separate reply so as to avoid any confusion
Firstly relating to Internal displacement. The argument that people move from villages to cities following terrorist attacks is incorrect. In fact, it should ideally be the other way round. The aim of a terrorist attack is to have the maximum impact and create fear. This can be done by attacking a major city, rather than a remote village. For example, all recent terrorist activities in India have been carried out in the major cities of New Delhi, Mumbai, Pune etc. The proposition also submits that people who move to cities do not have their required documents and are therefore denied jobs. This argument is completely baseless. What sort of logic dictates that just because a person is from a village he/she does not possess their documents?
The second point raised is that there should be psychological compensation and something called 'compensation of truth'. If by this the proposition means that the government should hold the hands of the victims of a terrorist attack, it is absurd to the point of hilarity. All governments condemn attacks of this nature. The persons behind these acts are caught and justice is done. Our most worthy opponents fear that the population will hide in a little dark corner being depressed for the rest of their lives. This is a baseless argument. There are examples of widows of police officers who died in the Mumbai massacre who have led marches and protests, demanding that the terrorists be brought to book. This requires great mental strength
Also, it is yet again submitted that the proposition is not at all clear in its definition of 'compensation'. According to American law compensation can be defined as, "A pecuniary remedy that is awarded to an individual who has sustained an injury in order to replace the loss caused by said injury." [[http://www.answers.com/topic/compensation]]
If this definition is to be followed then the entire concept of 'psychological compensation' goes out of the window. Thus this entire argument falls
Also in the Plan de Sánchez massacre case, opponents have chosen to mislead and misrepresent the facts, in this decision as well, the court ordered for COSTS AND NOT COMPENSATION and once again, the atrocities were committed by the Guatamela army, i.e., subordinates of the government thus once again invoking the principle of “superior criminal responsibility."
Therefore to summarize in a nutshell providing compensation for terrorism is equivalent to make the government be held responsible for acts of its citizens, no matter how heinous they may be where which defies all logic as such. Even if their argument is to be accepted to pay the compensation to victims the alternative model what we suggest is setting up of international fund which was even backed by the UN in 2008.
What do you think?