There is growing consensus and practice around making reparations for war victims. On this matter, it arises an international standard of reparations (ISoR) as a list of measures to follow, either as part of legal obligations or best practices. Although the standard embodies a redundant message delivered in international law instruments and customs, it is both a call for warring parties to fulfill their obligations towards victims as well as an invitation to undertake some actions that still do not reach the level of general binding rules. As the ISoR may raise expectations that cannot be met in all contexts, it is important to know what can and cannot be expected. The answer to this question comes, in part, from knowing what is mandatory out of what is portrayed as an aspiration. By studying legal developments on the international law applicable to armed conflicts and the Inter-American Court of Human Rights’ case law, this paper identifies a core of mandatory measures: restitution, compensation, rehabilitation, and satisfaction, as well as investigation of violations. Then, it considers two grey zones. Firstly, those actions expressed in aspirational terms: investigation and prosecution of violations against women from an intersectional approach, control over firearms trade to prevent gender-oriented crimes, and the prohibition of amnesties and statutory limitations to criminal justice; secondly, mechanisms enlisted as reparations but serving purposes other than redress, namely assistance to internally displaced people, truth-telling, non-repetition, and criminal prosecution.
Cada vez hay más consenso y acción en torno a la reparación de las víctimas de conflictos armados. En esta materia, surge un estándar internacional de reparaciones (EIR) como una lista de medidas a seguir, ya sea como parte de las obligaciones legales o de mejores prácticas. Aunque la norma encarna un mensaje redundante emitido en tratados internacionales y el derecho consuetudinario internacional, es tanto un llamado a las partes en conflicto para que cumplan con sus obligaciones hacia las víctimas como una invitación a emprender algunas acciones que aún no alcanzan el nivel de normas generales vinculantes. Dado que el EIR puede suscitar expectativas que no pueden cumplirse en todos los contextos, es importante saber qué se puede esperar y qué no. La respuesta a esta pregunta proviene, en parte, de saber qué es obligatorio de lo que se presenta como estándar. Mediante el estudio de instrumentos de derecho internacional aplicable a los conflictos armados y de la jurisprudencia de la Corte Interamericana de Derechos Humanos, este trabajo identifica un núcleo de medidas obligatorias: la restitución, la indemnización, la rehabilitación y la satisfacción, así como la investigación de las violaciones. A continuación, considera dos zonas grises, en primer lugar, aquellas acciones expresadas en términos aspiracionales: la investigación y el enjuiciamiento de las violaciones contra las mujeres desde un enfoque interseccional, el control del comercio de armas de fuego para prevenir los crímenes de género, y la prohibición de amnistías y limitaciones estatutarias a la justicia penal; en segundo lugar, algunos mecanismos considerados como formas de reparación pero que sirven para fines distintos a reparar el daño, a saber, la asistencia a los desplazados internos, el esclarecimiento de la verdad, la no repetición y el enjuiciamiento penal.
Considering war victims, there is growing consensus and practice around making reparations for them. A redundant message can be traced in international law instruments and customs, thus grouping developments in an international standard of reparations (ISoR). On humanitarian law grounds, the Protocol I Additional to the Four Geneva Conventions (AP-I) as well as the rules on customary law establishes the obligation to make reparation for violations to humanitarian rules and prohibitions, committed during both international and non-international armed conflicts (Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, 1977, p. Article 90;
Despite growing consensus and redundancy, the message still have unclear points and limitations (
Although the obligation to make reparation for breaches of humanitarian law is of customary character (
However, while the logic link of acts breaching human rights with reparation does not necessarily entail a juridical connection between the two, not all human rights fall into the category of international customary law because some entitlements do not follow the “general practice accepted as law” (United Nations, n.d.-d, p. Article 38). For one side, in some regional human rights systems, particularly within the European, decisions recognizing breaches do not always involve the provision of compensation (
Secondly, the idea of full reparation is not feasible in the settings of mass atrocities because not all the remedies can be provided to all the victims due to, among others, lacking resources and political disagreements (
The international standard is a complex message raising expectations among war victims. While some of its parts are mandatory, others fall within the international community’s aspirations or serve as guideline without reaching the level of a general binding rule. Thus, standards bear no binding force as an international rule, but it is difficult to claim that a State can fulfill its obligations without following such “best practices”(
To contribute to answering this question is the purpose of this paper, which develops two sections: the first one presents findings about the reparative measures regarded as the ISoR, whereas the second delves into what can be considered its “grey zone” and the implications upon right-holders and duty-bearers. The survey is premised on the study of every component of the standard, considering whether there exist rights or obligations under Humanitarian Law (IHL) and Human Rights Law (IHRL). In doing so, the study takes account of customary and treaty law, as well as case law from treaty bodies and the Inter-American Court of Human Rights -IACtHR.
The ISoR comprises measures aiming to relief the suffered harm and enable victims to claim the protection of their rights before state authorities or other competent bodies.
The purpose of restitution is to re-establish the victims’ rights, thus allowing them to return to the conditions existing before violations (International Law Commission, 2001, p. Commentary (2) to Article 35). Material and legal restoration is mandatory as much it be possible,
Being restitution impossible or not enough, damages can be redressed through compensation, a remedy involving payments for losses subject to financial appraisal, such as past and future loss of earnings, and costs derived from injury, such as medical attention, rehabilitation, and legal assistance (International Committee of the Red Cross (ICRC), 1987a, para. 3655; International Law Association, 2010, para. Commentary (2) to Article 8; International Law Commission, 2001, p. Commentary (1)(3)(5)(21) to Article 36; United Nations, 2005, para. 20). It is included the interest from the date when compensation should have been paid until the effective reparation (International Law Association, 2010, p. Commentary (4) to Article 8; International Law Commission, 2001, p. Commentary (1)(5) to Article 38). Money can also serve to award moral damage, but this is more with the purpose of easing those harms that hardly fall into monetary terms (
Rehabilitation is a form of non-monetary reparation intended to re-establish those skills lost with the harm and involves medical-psychological care, legal and social assistance, as well as education and labour training. (Committee against Torture, 2012, para. 11; United Nations, 2005, para. 21) On IHL grounds, victims of mines must be assisted for their care, rehabilitation, and social inclusion according to their age and gender (Meeting of States Parties to the 1980 CCW Convention, 2003, p. Article 8(2); United Nations, 1997, p. Article 6(3), 2008, p. Article 5). Considering IHRL treaty law, the State is bound to provide all the necessary remedies to ensure full recovery from torture/ill-treatment, by using available resources and respecting the victims’ background and privacy, also by allowing them to freely choose suppliers (Committee against Torture, 2012, paras 12-15; United Nations, 1987, p. Article 14). Similarly, child soldiers must be demobilized or released and ensured ‘physical and psychological recovery and social reintegration’ in healthy and decent conditions (United Nations, n.d.-a, p. Article 39). Children’s needs and views must be considered, especially those affected by sexual violence, and trained staff ought to be leading the implementation of remedies (Committee on the Rights of the Child, 2007, para. 37, 2015; Inter-American Commission on Human Rights, 2018b, para. 190; UNICEF, 2007; United Nations, n.d.-a, p. Article 39, n.d.-c, p. Article 6(3)). Regarding victims of enforced disappearance, their rights and legal status must be protected while absent (United Nations, 2006, p. Article 24(6)). Finally, as forms of rehabilitation, the Inter-American Court ruled medical treatment and medication, following the victims’ consent and family circumstances. These remedies were deemed adequate to alleviate damages to existence conditions, values, work relations, and family bonds. (I/A Court H.R., 2005)
Satisfaction epitomizes symbolic reparation by aiming to stop abuses, disclose facts, and restore dignity and memory of victims (International Law Association, 2010, p. Article 9 (Commentary-2); International Law Commission, 2001, p. Article 37 (Commentary-2,4); United Nations, 2005, para. 22). The first goal can be accomplished through effective investigation, as well as criminal prosecution and sanctions (
The Inter-American Court has ruled some of them in cases of war-related mass atrocities (
Non-repetition comprises measures intended to counter impunity, amend laws, and make comprehensive institutional changes for the sake of knowledge and respect of international law (Commission on Human Rights, 2005b;
On IHL grounds, non-recurrence involves specific obligations regarding the use of anti-personnel mines, namely deactivation/destruction of explosives, register of artifacts, and prevention of new incidents (Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, 1996, p. Article 14(1)(2); United Nations, 1997, p. Article 9); hence parties to conflict have to take preventative action in the wake of hostilities, such as minefields clearance, fencing and marking risk areas, recording and sharing data about installed mines with periodic monitoring and training (Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, 1996, p. Article 3(2)(10)(11), Article 5(2)(a), Article 9, Article 10(1), Article 14(1)(3)). Besides, the Ottawa Treaty sets out the States’ duty to destroy mines under their control (United Nations, 1997, p. Article 1(2), Article 4, Article 5(1)(2), Article 7(1-c)).
Following IHRL treaty law, non-repetition is a form of reparation in cases of murder, enforced disappearance, torture, and ill-treatment. It is enshrined as reparation in the ICCPR, the ICPPED and the CAT (Committee against Torture, 2012, paras 2, 18; Human Rights Committee, 2004b, para. 15; United Nations, 2005, para. 23, 2006, p. Article 24(5)). The Inter-American Court ruled the States to prevent new violations by implementing legal protection of rights, training on international law, housing, health care, education and infrastructure (
The ISoR also includes the obligation to conduct thorough, prompt, and impartial investigation of facts when there is ground to suspect the occurrence of violations. This duty is considered to correspond to the right to an effective remedy against breaches of civil and political liberties and follows from torture/ill-treatment and enforced disappearance (Human Rights Committee, 2004b, para. 15; I/A Court H.R, 2018, paras 183-188; Nations, 1966, p. Article 2; Organization of American States, 1985, p. Article 6, Article 8; United Nations, 1987, p. Article 12, 2006, p. Article 12(1)(2)). At the regional level, it stems from the States’ general duty to respect and ensure rights (I/A Court H.R., 2005, paras 233-237; Organization of American States, n.d., p. Article 1). A number of measures must be undertaken by the State to investigate murder and enforced disappearance. In the first case, it is mandatory to enquire into the circumstances and reasons for killings, make autopsies with the relatives’ consent and participation, as well as ensure the latter’s security and opportunity to provide evidence (Human Rights Committee, 2018, paras 27, 28, 64). In the second, fact-finding and disclosure must take place even without formal complaints with witnesses, relatives, and counsellors being duly informed and protected. These two obligations bind States until the missing persons’ whereabouts are clarified (Committee on Enforced Disappearances, 2016, para. 20; Human Rights Committee, 2018, para. 58; United Nations, 2006).
Perpetrators must be prosecuted and punished. It is envisaged as an obligation in cases of use of anti-personnel mines (Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, 1996, p. Article 14(1)(2); United Nations, 1997, p. Article 9), while, considering violations of civil and political liberties, the Human Rights Committee holds that the right to remedy involves wrongdoers undertaking their personal responsibility, so the States ought to avoid amnesties or any other immunities or statutory limitations to criminal justice (Human Rights Committee, 2004b, para. 16). In similar vein, the Inter-American Commission and the Court laid down that factual or legal impediments to justice must be removed (I/A Court H.R., 2001a, paras 41, 48, 2004b, paras 97-99; Inter-American Commission on Human Rights, 2013, para. Executive Summary 48). These obligations are clearly envisaged for cases of enforced disappearance as prosecution and punishment applies to any perpetrator and co-perpetrator, even when they did not act under officials’ authorization, acquiescence, or support (Human Rights Committee, 2004b, paras 16, 18; I/A Court H.R., 2014b, paras 228, 234; Organization of American States, 1994a, p. Article I(b); United Nations, 2006, p. Article 3).
Procedural remedies are also part of the ISoR, so victims and survivors must be enabled to complain and request reparation through judicial, administrative, civil, and disciplinary mechanisms granting effective, prompt, and enforceable response and protection (Commission on Human Rights, 2005b, p. Principle 32;
The comprehensive scope of the standard lends itself to be less clear about the binding and reparative character of some measures. This section delves into two grey zones by considering, firstly, how certain forms of reparations are not mandatory, and secondly, whether assistance to internally displaced people, truth telling, non-repetition, and criminal prosecution entirely fall within the range of reparation.
Although the ISoR embodies the attempt to bring the fullest protection to victims and survivors, thus including a wider range of measures to relieve the suffered harm, some of these actions are but aspirations or particular arrangements rather than general obligations binding States or evildoers (
Besides the distinction between what is mandatory and hortatory, another grey area appears as to what measures can be considered to
Assistance and humanitarian aid to people in forced displacement is stated as an obligation attendant to their right to return in safe and decent conditions (United Nations Secretary-General’s Representative on internally displaced persons, 1998, p. Principle 3(1)), yet the reparative character of these measures is not obvious. Against the backdrop of war, chances are that civilians have to be forcibly moved for the sake of protection or due to military reasons (Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, 1977, p. Article 17(1);
Truth seeking and fact-disclosure also lie in the grey zone between reparations and other transitional justice mechanisms. From the United Nations’ principles and guidelines, the right to remedy involves both reparation and access to relevant information about violations, being disclosure and learning of truth a shared goal. Thus, “verification of the facts and full and public disclosure of the truth”, which is considered as a form of satisfaction, appears to be similar to the separate right to access to information, which aims to “seek and obtain information on the causes leading to their victimization and on the causes and conditions of the gross violations (…) and to learn the truth in regard to these violations” (United Nations, 2005, para. 11(b)(c), 22(b), 24). Moreover, truth telling is deemed to have a two-fold nature as individual and collective right, because it serves not only the victims’ but also the society’s interests (
Considering violations other than murder, torture, and enforced disappearance, measures of non-repetition are seemingly beyond reparations. Non-recurrence is seen as an obligation stemming from States’ international wrongful acts other than reparation: to ensure the future fulfilling of obligations (International Law Commission, 2001, p. Article 30(b)(Commentary-1, 9, 11)). In similar vein, it is considered apart from reparations as guarantees to reinforce international law and ensure human rights (Mayer-Rieckh &
It is also contended the reparative character of the obligations to ensure judicial/administrative mechanisms to claim redress. Two interpretations compete on this question. The first one was held in the United Nations Resolution 60/147 of 2005 (Van Boven Principles) and considers access to justice as the procedural component of the right to remedy, which ought to be regarded as independent from reparation (United Nations, 2005, para. 11(a), 12). From the second stance, supported by the Commission on Human Rights (Joinet Principles), procedural and substantive remedies stem from the obligation to make reparation, so no distinction applies to them (Commission on Human Rights, 2005b, p. Principle 32;
Regarding obligations to investigate and bring perpetrators to justice, it is debatable whether the latter duty falls within the scope of reparation. International legal developments show that investigation is part of reparation, whereas prosecution and punishment remain under doubt, better seen as mechanisms to enhance rule of law and prevent future violations (Commission on Human Rights, 2006, paras 10, 25, 30, 42, 45, 56; Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, 1977, p. Article 4(3)(b);
The Inter-American Court’s case law did not offer a clear account on the nature of the prosecution-and-punishment duty, as it has moved from considering that investigation and proceedings epitomizes satisfaction and non-recurrence, because of the contribution to fact-disclosure, to rule fighting impunity as an independent form of reparation (I/A Court H.R., 2002, para. 77, 2004b, paras 97-99, 2004a, para. 259, 2009, para. 234, 2010, paras 253-263, 2011, paras 182-192, 2014a, paras 186-191; Inter-American Commission on Human Rights, 2013, para. Executive Summary, par 36, 49). Yet its view on the right to remedy and effective protection through judicial avenues does not stretches to punishment. In other words, victims are vested with the right to claim reparation and investigation of violations, but not to have their perpetrators punished before courts. A similar interpretation is given to the right to access to justice in the United Nations Resolution 60/147 (Organization of American States, n.d., p. Article 1(1), Article 8, Article 25;
Signaling ambiguities in the ISoR would be fruitless unless these grey zones had no implications, but they do have. Consider non-recurrence as the independent obligation to undertake positive interventions for the benefit of the entire society and not only victims (Human Rights Council, 2015), these preventive actions ought to be taken even in the absence of victims, who might not necessarily be directly benefitted nor entitled to claim them (Mayer-Rieckh &
The idea of having non-recurrence as an independent obligation put some remedies on the borderline of reparation and raises questions about their reparative character. For instance, child soldiers’ reintegration involves measures that directly redress their harm but are also seen as part of the non-repetition subset: family reunification, access to health, education, as well as training and assistance for livelihood development and re-gaining a social role (Commission on Human Rights, 2005b, p. Principle 36(d), Principle 37;
A question was raised concerning the ISoR: what remedies of that standard qualify as obligations to redress the harm suffered by war victims? This paper identifies a core of mandatory measures, namely restitution, compensation, rehabilitation, and satisfaction. The obligation to conduct thorough and impartial investigation is also part of this group. Other measures and mechanisms are listed as forms of reparations but they are still aspirations or context-wise solutions, or serve purposes other than righting victims. First, there are actions not reaching the level of a general international obligation, which are expressed in aspirational terms: measures to conduct investigation and prosecution of violations against women from an intersectional approach, control over firearms trade to prevent gender-oriented crimes, and the prohibition of amnesties and statutory limitations to criminal justice. Second, the standard includes mechanisms that do not necessarily redress the harm nor target only victims/survivors, thus advancing mediate and broader goals, i.e. justice and reconciliation. Despite the reparative effect, some cases in point are assistance to internally displaced people, truth telling, non-repetition, and criminal prosecution.
Delving into these two grey zones of the ISoR better equips us to address the question about how to implement it in diverse contexts where one size does not fit all. Although the delivered message about reparations is one of comprehensive remedies for all the victims, we may do well by expecting less from some measures that are not enshrined in international instruments as general mandates yet. We should also consider that assistance, truth disclosure, non-recurrence, and criminal justice go beyond the victim-perpetrator relationship, and so these tasks can be undertaken in the absence of entitled victims but without necessarily seeking to make them whole. From this perspective, the image of reparations may emerge with fewer ambiguities, yet the question whether it would be more feasible needs to be answered by also pointing to other angle: the practice of reparations. Still we need a shared language to respond to those who bear the brunt of war, but we should be careful not to ever extend its interpretation, otherwise it can create unrealistic expectation. The question remains, How to reconcile the ideal with the real?
The term right is only used to refer to the victims’ entitlement to know about the fate of missing persons (Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, n.d., p. Article 32; International Committee of the Red Cross (ICRC), 1987b, paras 1211-1216).
Bassiouni (2006, pp. 218-223) provides important data about the generalized practice of embodying remedies within domestic law and claims for the customary nature of the right to remedy. However, the information he presents also shows how this is mainly a post-war phenomenon.
Even within this traditional statist scheme, reparations has not been the most frequent consequence of internationally wrongful acts. In fact, states have preferred to apply other different more punitive measures (International Law Commission, 2001, p. Commentary (3)(4) to Article 33, Commentary (4) to Article 34; Pisillo-Mazzeschi, 1999; Tomuschat, 2002, pp. 173, 174).
However, the idea of imposing restrictions to reparations on account of their impossible application to massive atrocities would be tantamount to say that ‘the more widespread and massive the violation, the less right to reparation for the victims’ (Droege, 2007, p. 354), which in turn may give offenders good incentives to inflict damages, as they would find the lower cost of pursuing their objectives.
Considering measures of non-repetition, economic restrictions are not an excuse for inaction as there is always something that can, and must, be done, no matter the cost or the complexity of the task ahead (Human Rights Council, 2015, para. 37).
The problem of unrealistic expectations is that they can undermine trust in law. That is why it is preferable to create modest domestic reparation programmes and try hard to implement its remedies, despite their limited scope, than to design too ambitious policies likely to leave empty-handed victims or many of them waiting (Sánchez León & Sandoval-Villalba, 2020, p. 566).
This section is based on doctoral research for the project Limiting Reparations for Massive and Gross Violations under International Law.
Some scholars distinguish between procedural and substantive remedies, the first group clustering the judicial and administrative mechanisms intended to give victims institutional avenues to claim substantive remedies (Office of the United Nations. High Commissioner of Human Rights, 2008, p. 6; Security Council, 2004, paras 16-19; Shelton, 2015).
According to the ILC, restitution is mandatory to the extent it is possible. However, the existence of legal and practical obstacles to its implementation does not relieve from the obligation to restitution. So, obstacles do not mean impossibility (International Law Association, 2010, p. Commentary (2) to Article 7; International Law Commission, 2001, p. Commentary (1)(5)(7)(8) to Article 35; United Nations, 2005, para. 19).
In the field of State’s responsibility for internationally wrongful acts, the cessation of violations entails a consequence of breaches of international law different from reparation (International Law Commission, 2001, p. Article 30 (Commentary-1,4,7)).
There is growing practice of extending the scope of the right to know the truth to human rights violations other than enforced disappearance, and the Inter-American Court considered truth as a right stemming from the protection of other liberties enshrined in the American Convention, such as the rights to a fair trial, receive information, and judicial protection (Groome, 2018, pp. 61, 66; I/A Court H.R., 2014b, paras 508-511, 2017, para. 220). Besides search and release, persons shall be informed about the causes leading to atrocities, the progress and result of investigations, and the perpetrators’ identity. Accordingly, the State has to establish institutions enabling facts disclosure (Commission on Human Rights, 2005b, p. Principle 2, 2006, paras 8, 29, 33, 38, 55; Human Rights Council, 2013, paras 20, 90).
Some of these measures overlap with satisfaction, e.g. those fostering truth disclosure and responsibility acknowledgment (International Law Association, 2010, p. Article 10 (Commentary-1); International Law Commission, 2001, p. Article 37 (Commentary-5)).