The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Reparation (Compensation)

The notion of compensation of victims for human rights violations or violations of international humanitarian law is relatively recent in international law. It is part of the right to judicial remedies recognized by international law to victims of serious violations of international humanitarian law and human rights. As a matter of law, this right to a remedy and compensation mainly rests with national jurisdictions. However, a few international judicial bodies can also decide on compensation to individual victims. The right to compensation for victims is different from the system of international responsibility between States, which compels them to pay reparation for the harm caused to another State for the violation of their international obligations. Those issues are considered by the International Court of Justice, which is competent to settle questions of inter-State responsibility and indemnifications. States can also put in place mechanisms of indemnification when their responsibility is at stake for harm caused to entities or foreign individuals. This is frequent in international military operations, and decisions are often taken on the basis of amicable settlements directly initiated by armed forces.

Several schemes exist in international law regarding the concept of reparation for damage suffered by victims of grave violations of human rights and humanitarian law. The following forms of reparation exist: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. They follow an individual or a collective and inclusive approach.

International Compensation Funds

For many years, the only mechanisms available to victims and their families were the rare judicial decisions from domestic courts, ad hoc procedures such as Truth and Reconciliation Commissions, or funds created within the United Nations. There are two related funds that have been created by the UN General Assembly. The first is the United Nations Voluntary Fund for Victims of Torture, created in 1981; the second is the Voluntary Fund for Victims of Contemporary Forms of Slavery, created in 1991. These funds are mainly funded by States’ voluntary contributions but are also open to donations from NGOs, individuals, and actors in the private sector. The funds are run by the Office of the High Commissioner for Human Rights and a board of directors composed of five people who are nominated by the Secretary-General of the UN for three-year renewable terms. The board works to obtain funding for a range of projects, following consideration of proposals submitted by NGOs working with victims of torture or slavery. NGOs are the mandatory vector through which all aid allotted by donors must pass, since foundations never give money directly to the victims.

According to the statute of the International Criminal Court that was adopted in July 1998 and entered into force on 1 July 2002, victims of war crimes, crimes against humanity, and genocide may receive reparation.

On the basis of their 2007 activity report, we note a decrease in contributions to the fund for the victims of torture since 2004, against a significant increase in contributions since 1998 to the fund for the victims of slavery.

While the Statutes of the two ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda did not provide any compensation system for victims, the Rome Statute of the International Criminal Court, adopted in July 1998 and entered into force on 1 July 2002, makes provisions for the compensation of victims of war crimes, crimes against humanity, and genocide (Art. 75) and the creation of a Trust Fund for Victims and their families (Art. 79.1).

Article 75.1 of the ICC Statute specifies that “the Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.”

The Trust Fund for Victims (TFV), foreseen by Article 79.1 of the Rome Statute, was officially created in September 2002 by Resolution 6 of the Assembly of State Parties. This Resolution sets out the conditions and rules of reparation of the harm suffered by victims and their families, other than direct indemnifications by individuals.

The Fund is managed by a board of directors composed of five members appointed by the Assembly of State Parties for three-year terms, renewable once. The Court may order that money and other property belonging to the accused be collected through fines or forfeiture to be transferred to the Trust Fund. The Trust Fund is also open to voluntary contributions from governments, international organizations, individuals, and other funds allocated by the Assembly of State Parties.

Regulation 51 of the Trust Fund for Victims stipulates that the Trust Fund may implement activities and projects aimed at psychological rehabilitation, material support, or other activities after notifying the Court of its intentions. No activity or project administered by the TFV should predetermine an issue to be determined by the Court, violate the presumption of innocence of the accused, or be prejudicial to a fair and impartial trial.

As of April 2013, the Fund was running thirty-one projects out of thirty-four accepted by the Court: sixteen projects in the Democratic Republic of Congo and eighteen in northern Uganda, which has reached or is currently reaching an estimated 80,000 victims of crimes under the Court’s jurisdiction. By November 2010, the total voluntary contributions were €5.8 million. Out of the total contributions, approximately €4.45 million has been obligated for grants in the Democratic Republic of Congo and northern Uganda since 2007–2008. Another €1.35 million has been allocated for activities in the Central African Republic (€600,000) and for any potential Court orders for reparations (€750,000). The first ten major donors of the Fund are Germany, the United Kingdom, Sweden, Finland, Norway, the Netherlands, Ireland, Belgium, Denmark, and France.

The activities of the Fund are not comparable to judicial compensation for victims. The programs of the Fund are often disconnected from the judgments of the Court. They often take place during the preliminary phase of the trial, when the Court examines country situations. Indeed, the TFV is performing a dual role: on the one hand, it serves as an instrument of the Court for distribution of awards of reparations, and, on the other hand, it is an independent body that may use resources for the benefit of victims outside court decision. Voluntary contributions may be earmarked by donors, but they may not result in manifestly inequitable distribution of funds and property among different groups of victims (ICC-ASP/4/Res.3).

International Criminal Court

In theory, compensations decided by the Court may be granted on an individual or collective basis. They can be at the charge of the person convicted or paid through the Fund if the convicted person is declared indigent. They can be paid to victims directly or through international or national organizations approved by the Fund. To make it easier for victims, the Court has developed a standard form that can be used for reparation requests.

However, the ICC is not competent to compel a State to pay reparations to victims for serious violations committed by the State or its agents. The Court only adjudicates on individual criminal responsibility and not on the responsibility of the State. The International Court of Justice and regional courts of justice are the ones competent to rule on questions of State responsibility.

European Court for Human RightsInternational Court of Justice

In practice, before the first sentence of the International Criminal Court, ruled against Thomas Lubanga Dyilo on 10 July 2012, the allocation of the Fund was intended for various NGO programs supporting victims of violence in the areas of concerns for the ICC. On 7 August 2012, the Trial Chamber I of the ICC issued its first decision on reparations for victims of war crimes and crimes against humanity perpetrated by Thomas Lubanga Dyilo and spelled out the principles applicable to the reparation of victims, in accordance with the dispositions of Article 75 of the Court’s Statute.

The Chamber decided that reparations would be granted to victims through the intermediary of the Trust Fund for Victims. In order to evaluate the prejudice suffered by victims, the Fund has put in place consultations with victims and communities in Ituri (DRC) affected by those crimes. Following those evaluations, the Fund will implement collective reparation plans that would be submitted to the Court for approval. By September 2012, only eighty-five victims had filed a claim for reparation in the Lubanga case. Considering the nature and extent of the crimes affecting whole communities, the Court has adopted an inclusive approach concerning the evaluation of prejudice suffered by victims and the forms of reparations. It confirms the tendency toward collective forms of reparations rather than individual ones, in order to avoid the risk of stigmatization and discrimination between victims. This reparation/rehabilitation rationale takes precedence over the rationale of indemnification.

The Court spelled out the following principles (ICC-01/04-01/06, Prosecutor v. Thomas Lubanga Dyilo , Decision Establishing the Principles and Procedures to Be Applied to Reparations, paras. 185–97):

  1. The right to reparations is a well-established and basic human right (para. 185).
  2. All victims are to be treated fairly and equally as regards reparations, irrespective of whether they participated in the trial proceedings. The needs of all victims shall be taken into account, and particularly those of children, the elderly, those with disabilities and the victims of sexual or gender violence. Victims shall be treated with humanity and dignity. Their safety, physical and psychological well-being, and privacy shall be ensured. Reparations shall be granted to victims without adverse distinction on the grounds of gender, age, race, color, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth, or other status. Reparations shall avoid further stigmatization of the victims and discrimination by their families and communities (paras. 187–93).
  3. Reparations may be granted to direct and indirect victims, including the family members of direct victims, but also to legal entities (paras. 194 and 197).
  4. Reparations shall be accessible to all victims on a gender-inclusive approach. Victims, their families, and their communities shall have the right to participate in reparation schemes and receive the appropriate support (paras. 195–96, 202).

International Principles of Reparation

In 2005, the United Nations Commission on Human Rights adopted 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” (E/CN.4/RES/2005/35). These were endorsed by the United Nations General Assembly in 2006 (A/RES/60/147, 21 March 2006). The principles emphasize the specific obligation of each State to offer appropriate remedies to victims of violations, which are often committed by its own agents. The fact that human rights violations are often perpetrated by State agents complicates their sanctioning and increases the vulnerability of victims. The UN principles insist on the necessity to include in national laws useful provisions on the prohibition and sanctioning of violations perpetrated by State agents, the training of personnel who have security and judicial functions, the access to information for victims, the protection of victims against reprisals, safeguards against the recurrence of those acts, as well as rules and procedures that allow for the reparation of the prejudice suffered. These principles affirm that “in accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation” (Principle 18). Reparation can include different forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (Principles 19–23). Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution can include restoration of liberty; enjoyment of human rights, identity, family life, and citizenship; return to one’s place of residence; restoration of employment; and return of property.

Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case. Those principles also encourage States to develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the services to which they may have a right of access (legal, medical, psychological, social, administrative services, etc.).

In light of international instruments and practice, it can be held that principles of reparation for victims of violations of international humanitarian law and human rights are still bound to the responsibility of the State, which also entails its obligation to financially repair another State in case of unlawful international behavior. International law recognizes these principles but does not create any individual right to compensation. Such procedure can only be implemented by domestic courts for damages related to their own national authorities. This was confirmed by a judgment pronounced by the International Court of Justice in 2012 concerning a dispute between Germany and Italy on the indemnification of the victims of Nazism. The Court affirmed that it would not rule on the existence in international law of an individual right to compensation, directly enforceable and which would be conferred to victims of violations of international humanitarian law.

Nonetheless, the Court held that

against the background of a century of practice in which almost every peace treaty or post-war settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted. ( Jurisdictional Immunities of the State, Germany v. Italy; Greece Intervening , ICJ, Judgment, 3 February 2012, paras. 94 and 108)

Compensation by Regional Courts of Human Rights

At the regional level, human rights conventions explicitly spell out the principle of the right to compensation for victims, in connection with the obligation of States to ensure effective judicial remedies to victims of human rights violations. The European, Inter-American, and African Courts of Human Rights can compel States to compensate victims of human rights violations. The amount of the compensation is indicated by the regional judge (Art. 13 of the European Convention on Human Rights and Fundamental Guarantees, Arts. 25 and 63 of the Inter-American Convention on Human Rights, Arts. 28.h and 45 of the 2008 Protocol on the Statute of the African Court of Justice an Human Rights, and Art. 3.2 of the 2005 Supplementary Protocol of the ECOWAS Court of Justice). The State has to financially repair the harm it has caused to victims. The judgments of these courts are binding on States.

In this case, it is not a mechanism of broad international solidarity but one that works through regional court enforcement of the responsibility of the State for damages suffered by individuals.

Jurisprudence

  1. International Criminal Court

On ICC-01/04-01/06, Prosecutor v. Thomas Lubanga Dyilo , Decision Establishing the Principles and Procedures to Be Applied to Reparations, paras. 185–96, see supra.

  1. International Court of Justice

In several decisions, the ICJ recalled the principle of international law under which the breach of an agreement involves an obligation to make reparation in an adequate form. See Case Concerning the Factory of Chorzow , Claim for Indemnity, Jurisdiction, Series A, no. 9, p. 21; Gabcikovo-Nagymaros Project ( Hungary v. Slovakia ), Judgment, ICJ Reports 1997, p. 81, para. 152; Avena and Other Mexican Nationals ( Mexico v. United States of America ), Judgment, ICJ Reports 2004, p. 59, para. 119; Armed Activities on the Territory of the Congo ( Democratic Republic of the Congo v. Uganda ), Judgment, ICJ Reports 2005, p. 168. In the latter case, the ICJ “considers appropriate the request of the DRC for the nature, form and amount of the reparation due to it to be determined by the Court, failing agreement between the Parties, in a subsequent phase of the proceedings” (paras. 260–61).

In the case Jurisdictional Immunities of the State ( Germany v. Italy; Greece Intervening , Judgment, 3 February 2012), the ICJ distinguished the regime of the right to individual reparation, which remains subjected to the principle of jurisdictional immunity of States, and the obligation of reparation between States.

The Court need not rule on whether . . . international law confers upon the individual victim of a violation of the law of armed conflict a directly enforceable right to claim compensation. (para. 108)

A decision that a foreign State is immune no more conflicts with the duty to make reparation than it does with the rule prohibiting the original wrongful act. Moreover, against the background of a century of practice in which almost every peace treaty or post-war settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted. (para. 94)

UNVFVS / UNVFVT

OHCHR

Palais des Nations, CH-1211

Genève 10, Suisse.

Email: slaveryfund@ohchr.org , unvfvt@ohchr.org

@ Redress (a London-based association that helps victims of torture obtain justice and reparation): http:// www .redress.org

ICC Website on Reparations for Victims: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the %20court/victims/reparation/Pages/reparation%20for%20victims.aspx

For Additional Information: Gillard, E.-C. “Reparation for Violations of International Humanitarian Law.” International Review of the Red Cross 851 (September 2003): 529–55.

Greiff, Pablo de, ed. The Handbook of Reparations . Oxford: Oxford University Press, 2006.

Hofmann, R., and F. Riemann. Compensation for Victims of War: Background Report . International Law Association, Committee on Compensation for Victims of War, March 2005.

UN. “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law.” Doc E/CN.4/RES/2005/35, 20 April 2005.

———. “The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report of the Special Rapporteur, Mr. M. Cherif Bassiouni, Submitted in Accordance with Commission Resolution 1999/33.” Doc. E/CN.4/2000/62, 18 January 2000.

“Symposium on Victims in International Criminal Law.” Journal of International Criminal Justice 8, no. 1 (2010): 75–179.

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