The Practical Guide to Humanitarian Law

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

Reparation (Compensation)

The concept of reparation for victims of violations of human rights or of international humanitarian law (IHL) is relatively new in international law. It is part of the right to a remedy as recognised under international law for victims of serious violations of IHL and human rights (GCI, art. 51; GCII, art. 52; GCIII, art. 131; GCIV, art. 148; API, art. 91; Customary IHL (CIHL) Rules 149 and 150). Indeed, victims’ right to reparations is a non-derogable and a fundamental principle of international law which can be enforced either at the international or national levels.

There are several systems in international law relating to the concept of reparation for the harm suffered by the victims of grave violations of human rights and IHL. The following forms of reparation exist: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. They are either based on an individual or on a collective and comprehensive approach. As a matter of law, the individual right to a remedy and compensation is primarily a matter for national jurisdictions. In some exceptional situations of widespread human rights violations, States have also established specific reparations programmes. This has been the case in the past with German reparations to Jews after World War II and German compensation to forced and slave labourers during the same war. The South African government has also established a reparations programme been set up by for victims of apartheid, following the national Truth and Reconciliation Commission. This process has inspired other countries to deal with the consequences of mass crimes through different kinds of non-judicial Truth and Reconciliation projects. For example, Argentina established a special reparations programme for victims of human rights violations committed by the military dictatorship between 1975 and 1983, based on the recommendation of its National Commission on the Disappearance of Persons. Reparation policies for human rights violations have also been adopted by countries such as Chile, Brazil, Malawi and others. They provide an alternative to judicial proceedings but raise many issues of due process and fairness.

To fill the growing gap in reparations for victims of international crimes, a small number of international or regional judicial bodies may also decide on reparations for individual victims. International compensation Funds for victims have been created by the United Nations System and by the International Criminal Court (ICC) (I). Their activities are governed by international guidelines (guiding principles) on reparations to victims (II). Victims’ reparations are also implemented by regional human rights courts (III). The jurisprudence of the ICC and the International Court of Justice (ICJ) helps to clarify the interpretation and implementation of the various principles of reparations to victims (see the end of the section on Jurisprudence)

The individual right of reparation for victims should not be confused with the system of international responsibility that exists between States, which obliges them to pay compensation for the damage they cause to another State by violating their international obligations. It is the ICJ that has jurisdiction to resolve such questions of inter-State responsibility and reparation. According to the established ICJ jurisprudence, the responsible State must first endeavour to provide reparation, i.e., “to re-establish the situation that existed before the wrongful act was committed”. In cases where reparation is impossible or impracticable, the responsible State must pay compensation to cover any pecuniary loss, including loss of profits, if established. (see art. 35 of the International Law Commission Draft articles on the Responsibility of States for Internationally Wrongful Acts and the ICJ Case concerning The Factory at Chorzów, Claim for indemnity (Merits) , 26 July 1927, Series A, No. 17 at p. 21 and 47).

I. International Compensation Funds

For many years, the only mechanisms available to victims and their families were the rare judicial decisions of national courts, ad hoc procedures such as Truth and Reconciliation Commissions, or Compensation funds established by the United Nations (UN) (a). Since 1998, the Rome statute creating the International Criminal Court (ICC) also provides for reparation for victims (b).

a. UN Compensation funds and reparation mechanism

There are two such funds that have been created by the UN General Assembly (UNGA). The first is the UN Voluntary Fund for Victims of Torture, established in 1981 (by UNGA resolution 36/151); the second is the Voluntary Fund for Victims of Contemporary Forms of Slavery, created in 1991 (by UNGA resolution 46/122). These funds are financed mainly by voluntary contributions from States but are also open to donations from non-governmental organisations (NGOs), individuals and private sector actors. The funds are administered by the Office of the High Commissioner for Human Rights and a five-members board of directors appointed by the UN Secretary-General for a renewable three-year term. The board works to provide funding for a range of projects, after reviewing proposals submitted by NGOs working with victims of torture or slavery. NGOs are the mandatory conduit through which all donor funding must pass, as foundations never give money directly to the victims. Based on their activity reports for 2022 and 2023, we can see a modest increase in contributions to the Fund for the Victims of Torture (13.393 million US dollars projected for 2023 compared to 13.299 million US dollars received in 2022), and to the Fund for the Victims of Slavery (2.499 million US dollars projected for 2023 compared to 2.424 million US dollars received in 2022).

UN reparations may also arise from a mandatory reparations mechanism established by an ad hoc resolution of the UN Security Council (UNSC). An example of this is the UN Compensation Committee (UNCC), which was created as per UNSC Resolution 687 (1991) following the Iraqi invasion of Kuwait in 1991. The UNCC successfully compensated numerous entities, including companies, States, and individual victims who suffered losses in Kuwait as a result of Iraq’s actions. The UNCC concluded its operations on 31 December 2022, more than 31 years after its inception. This closure followed Iraq’s fulfilment of its international obligations to compensate all claimants for losses and damages resulting from its invasion of Kuwait. The final payment was made in January 2022.

b. The ICC trust fund for victims and their families

While the Statutes of the two ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda did not provide for a system of reparations for victims, the Rome Statute of the ICC provides for reparations for victims of crimes within the jurisdiction of the Court and their families (art. 75) and for the creation of a trust fund for victims and their families (art. 79(1)). Thus, victims of war crimes, crimes against humanity, genocide and the crime of aggression are therefore eligible for reparations.

Article 75(1) of the Rome Statute specifies that “[t]he 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), provided for in article 79(1) of the Rome Statute, was formally established by Resolution 6 of the Assembly of State Parties (ASP) in September 2002. This resolution sets out the conditions for accepting contributions to the TFV, as well as the rules governing its composition and functioning.

The TFV is administered by a board of directors consisting of five members who serve in an individual capacity on a pro bono basis. They are appointed by the ASP for a term of three year, 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 TFV (para. 2(b) of ASP Resolution 6). The TFV is also open to voluntary contributions from governments, international organisations, individuals, corporations, and other funds allocated by the ASP.

The Regulations of the TFV provide in art. 50(a)(i) that the fund may undertake activities and projects aimed at psychological rehabilitation, material support, or other activities after notifying the Court of its intentions (art. 50(a)(ii) of the Regulations of the TFV). No activity or project administered by the TFV shall prejudge any matter to be determined by the Court, violate the presumption of innocence of the accused, or prejudice a fair and impartial trial (art. 50(a)(ii) of the Regulations of the TFV).

As per information available from the June 2022 report, the TFV was running 20 assistance projects in the Central African Republic, Ivory Coast, the DRC, Mali and Uganda, with the start of new assistance programmes in Georgia, Kenya and Mali for which implementing partners have been already selected. These assistance projects have reached an estimated 418,000 victims of crimes under the Court’s jurisdiction during the year 2021. For the 2023-2025 period, TFV is considering providing continued support in the Central African Republic, Ivory Coast, the Democratic Republic of the Congo, Georgia, Kenya, Mali and Uganda. In 2023, the approved budget for the TFV was of €3,88 905 million. The top donor countries of the TFV between 2004 and 2020 were Belgium, Finland, Ireland, the Netherlands, Sweden and the United Kingdom.

However, the activities of the TFV are not comparable to judicial reparations for victims. The fund’s programmes are often separate from the ICC’s judgments. They often take place during the pre-trial phase of the proceedings, when the Court is investigating the situation in the country. Indeed, the TFV plays a dual role: on the one hand, it serves as an instrument of the Court for the distribution of reparations awards, and, on the other hand, it is an independent body that can use resources for the benefit of victims outside of the Court’s decisions. Voluntary contributions may be earmarked by donors but must not result in a manifestly unfair distribution of funds and property among different groups of victims (ICC-ASP/4/Res.3).

International Criminal Court </content/article/3/international-criminal-court>__

In theory, reparations ordered by the ICC can be awarded on an individual or collective basis. They may be paid by the convicted person or paid by the fund if the convicted person is found to be indigent. They may be paid to victims directly or through international or national organisations approved by the Fund. To facilitate the process for victims, the Court has developed a standard form to be used for applications for reparations.

However, the ICC has no jurisdiction to compel a State to pay reparations to victims for serious violations committed by the State or its agents. The ICC adjudicates only on individual criminal responsibility, not State responsibility. The ICJ 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, prior to the ICC’s first judgment of the, ruled against Thomas Lubanga Dyilo on 10 July 2012, the allocation of the Fund was earmarked for various NGOs programmes supporting victims of violence in the areas of concern to 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 committed by Thomas Lubanga Dyilo, setting out the principles applicable to reparations for victims, in accordance with the provisions of article 75 of the Rome Statute.

The Chamber decided that reparations would be paid to victims through the intermediary of the TFV. In order to assess the harm suffered by the victims, the fund has launched consultations with victims and communities in Ituri (DRC) affected by these crimes. Following these assessments, the fund will implement collective reparation plans to be submitted to the Court for approval. As of 6 September 2023, 998 out of the 2,471 victims, which is the final number of direct and indirect victims approved by the Trial Chamber, have enrolled in the Lubanga reparations programme. ( Prosecutor v. Thomas Lubanga Dyilo , Case no. ICC-01/04-01/06, “Twenty-second progress report on the implementation of collective reparations as per Trial Chamber II’s decisions of 21 October 2016, 6 April 2017 and 7 February 2019” dated 6 September 2023, ICC-01/04-01/06-3559-Conf, 6 September 2023, para. 11). Given the nature and scale of the crimes, which affected entire communities, the Court has adopted a comprehensive approach to assessing the harm suffered by victims and the forms of reparation. It confirms the trend towards collective forms rather than individual forms of reparation, in order to avoid the risk of stigmatisation and discrimination of victims. This reparation/rehabilitation rationale takes precedence over the compensation rationale.

The Court set out the following principles in the Lubanga case ( Prosecutor v. Thomas Lubanga Dyilo , Case no. ICC-01/04-01/06, Decision Establishing the Principles and Procedures to be applied to Reparations , 7 August 2012, paras. 185-197):

  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, colour, 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. 187-193).
  3. Reparations may be granted to direct and indirect victims, including the family members of direct victims, but also to legal entities (para. 194).
  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. 195-196).
  5. In combination, these principles favour community rehabilitation projects rather than individual compensation.

II. International guiding Principles on Reparations to victims

In 2001, the International Law Commission (ILC) adopted 59 draft articles on the responsibility of States for internationally wrongful acts. These ILC articles are considered a key reference in international law and have been widely cited and applied in State practice and by international courts and tribunals.

In 2005, the UN 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 reaffirmed by the UNGA in 2006 (A/RES/60/147, 21 March 2006). These principles emphasise the specific obligation of each State to provide adequate 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 makes them more difficult to sanction and increases the vulnerability of victims. The UN Principles insist on the need to include in national legislation appropriate provisions on the prohibition and punishment of violations committed by State agents, the training of personnel with security and judicial functions, the access to information for victims, the protection of victims from reprisals, safeguards against the recurrence of such acts, and rules and procedures allowing for reparation of harm 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 take several forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (Principles 19-23). Restitution should, as far as possible, restore the victim to his or her original situation prior to the commission of gross violations of international human rights law or serious violations of IHL. Restitution may 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 measurable damage, as appropriate and proportionate to the gravity of the violation and the circumstances of each case. These 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 IHL of the services to which they may have a right of access (legal, medical, psychological, social, administrative services, etc.).

In the light of international instruments and practice, it can be said that the Principles of reparation for victims of violations of IHL and human rights are still linked to the responsibility of the State, which includes the obligation to compensate another State for wrongful international conduct. While international law recognises that these Principles apply between States, it considers that they do not create an individual right to reparation against third States. Individual proceedings can only be brought by national courts for harm caused to individuals by their own national authorities. This was confirmed by an ICJ ruling in 2012 in a dispute between Germany and Italy overcompensation for victims of Nazism. The ICJ reiterated that it could not establish the existence in international law of an individual right to compensation directly enforceable against third States by victims of violations of IHL.

III. Compensation by Regional Human Rights Courts

At the regional level, human rights conventions explicitly enshrine the principle of the right to reparation for victims, in conjunction with the obligation of States to ensure effective judicial remedies for victims of human rights violations. The European, Inter-American, and African human rights courts can compel States to provide reparations to victims of human rights violations. The amount of the compensation is determined by the regional judge (art. 13 of the European Convention on Human Rights and Fundamental Guarantees, arts. 25 and 63(1) 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 and Human Rights, and art. 3(2) of the 2005 Supplementary Protocol of the ECOWAS Court of Justice). The State must compensate the victims financially for the harm it has caused. The judgments of these courts are binding on States.

Rather than a mechanism of broad international solidarity, this is a mechanism which works through regional courts to make States accountable for the damage they cause to individuals.

**Jurisprudence

  1. International Criminal Court

    **

    In the case of Prosecutor v. Thomas Lubanga Dyilo , (Case no. ICC-01/04-01/06, Decision Establishing the Principles and Procedures to Be Applied to Reparations , 7 August 2012, paras. 185-196, see supra), the Court also approved symbolic and service-based collective reparations awards in the Lubanga case. This decision was amended by the Appeals Chamber on 3 March 2015. On 21 October 2016, the Trial Chamber II approved and ordered to start the implementation of a plan submitted by the TFV for symbolic collective reparations for the victims and on 6 April 2017 it also approved the programmatic framework for collective service-based reparations. Finally, on 15 December 2017, Trial Chamber II set the amount of Thomas Lubanga Dyilo’s liability for collective reparations at 10.000.000 US dollars. For the symbolic reparations award, the Trial Chamber approved the TFV’s plan for the construction of three community centres and the launch of a mobile programme featuring activities to the reduce stigma and discrimination that former child soldiers continue to face in the communities where they reside. For the service-based collective reparations, the Trial Chamber approved the TFV’s plan to provide physical and psychological rehabilitation, as well as vocational training and income-generating activities. In that regard, the 2017 “Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable” was amended in 2019 by the Appeals Chamber so that that victims who were found ineligible for reparations by the Trial Chamber II, and who believe that their failure to adequately substantiate their claims, including with supporting documentation, was due to inadequate notice of the eligibility requirements, may seek a reassessment of their eligibility by the Trust Fund for Victims. ( Prosecutor v. Thomas Lubanga Dyilo , Case no. ICC-01/04-01/06 A7 A8, Judgment on the appeals against Trial Chamber II’s ‘Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’ , 18 July 2019). The Court also recalled that collective reparation and individual reparation are not mutually exclusive and can be awarded concurrently (para. 40). Collective reparation may also include individual reparation. Indeed, collective reparation may include the payment of sums of money to individuals to compensate for the harm suffered and the possibility for same individuals to participate in specific programmes designed to address the specific harm suffered by those individuals (para. 40). The Appeals Chamber mentioned that the number of victims will be an important parameter in determining what reparations are appropriate (para. 89). However, the number of victims cannot be determined solely on the basis of individual claims for reparations. The Court stated that the Trial Chamber “should consider the scope of damage as it is in the current reality, based on the crimes for which the convicted person was found culpable” (para. 89).

    On 8 June 2018, in the case of Prosecutor v. Jean-Pierre Bemba Gombo , the Appeals Chamber, by majority, overturned the conviction of Jean-Pierre Bemba Gombo for war crimes and crimes against humanity (rape, murder, and pillage). However, following this decision, on 13 June 2018, the TFV announced its plans to accelerate the relaunch of an assistance programme in the Central African Republic, which will aim to provide assistance for the harm suffered by victims in the Bemba case, as well as victims of sexual and gender-based violence during the 2002-2003 conflict. The TFV Board also decided to allocate an initial amount of €1 million for the initial programme and to undertake further fundraising efforts. While the Trial Chamber III acknowledged that no reparations order could be made against Bemba per article 75 of the Rome Statute, it supported the TFV’s decision, emphasizing that assistance activities are distinct from judicial proceedings and do not depend on convictions and concluded that “irrespective of the outcome of the judicial proceedings, victims who presented themselves to the Court in the context of the Bemba case are, by definition, victims of the “situation” in CAR I”. ( Prosecutor v. Jean-Pierre Bemba Gombo , Case no. ICC-01/05-01/08, Final decision on the reparations proceedings , 3 August 2018, paras. 3 and 11).

    In the case of Prosecutor v. Germain Katanga , where the accused was found guilty, on 7 March 2014, of one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging) committed on 24 February 2003 during the attack on the village of Bogoro, Ituri Province, in the Democratic Republic of the Congo, the Trial Chamber II issued a reparations order, on 24 March 2017, in which it set Mr. Katanga’s liability for reparations at 1 million US dollars. The Court awarded individual and collective reparations to 297 victims, comprising a symbolic compensation award of 250 US dollars per victim as well as collective reparations awards in the form of support for (1) housing assistance, (2) support for income-generating activities, (3) education aid and (4) psychological support (totally 1 million US dollars from the TFV’s Board decision).

    On 27 September 2016, in the case of Prosecutor v. Ahmad Al Faqi Al Mahdi , the Trial Chamber VIII found Mr. Al Mahdi guilty, as a co-perpetrator, of the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion, including nine mausoleums and one mosque in Timbuktu, Mali, in June and July 2012. On 17 August 2017, the Trial Chamber VIII issued its Order for Reparations and set Mr. Al Mahdi’s liability at € 2,7 million. The order was largely confirmed by the Appeals Chamber on 8 March 2018 and reparations were awarded in the forms of individual awards for financial loss and for the moral harm for those victims with a close connection to the destroyed mausoleums, collective reparations through reconstruction of the protected buildings, and collective reparations for the community of Timbuktu (economic resilience facilities including psychological support, income-generating activities, symbolic measures, such as memorialisation committees by the local population and the organisation of a symbolic ceremony and the return of internally displaced persons to Timbuktu, in collaboration with the UN High Commissioner for Refugees and the International Organization for Migration).On 8 July 2019, the Trial Chamber VI found Mr. Ntaganda guilty beyond a reasonable doubt of 18 counts of war crimes and crimes against humanity for crimes against humanity committed in Ituri, DRC, in 2002-2003. The Trial Chamber VI sentenced him on 7 November 2019 to 30 years of imprisonment. On 30 March 2021, the ICC Appeals Chamber confirmed the conviction and the sentence. On 8 March 2021, Trial Chamber VI delivered its Order on Reparations to victims to be made through the ICC Trust Fund for Victims (TFV) and for which several issues were remanded by the judgment of the Appeals Chamber on 12 September 2022. ( Prosecutor v. Bosco Ntaganda , Case no. ICC -01/04-02/06 A4-A5, J udgment on Appeals against the Reparations Order issued by Trial Chamber VI of March 8 2021 entitled ‘Reparations Order’ , 12 September 2022) Further to this 2022 decision, the Trial Chamber was requested to issue a new reparations order. On 14 July 2023, the Trial Chamber II issued an addendum to the Reparations Order of 8 March 2021 in which it assessed Mr. Ntaganda’s liability for reparations in an amount of up to 31,300,000 US dollars and it ruled on all aspects of the Draft Implementation Plan that do not require further submissions from the TFV or the parties.  The Trial Chamber concluded that individualised collective reparations constitute the most appropriate way to address the harm and long-term needs of the victims. To reach this decision, the Court took into account, among other things, the victims wish not to see any commemoration established or to be granted any other form of symbolic reparation, unless it had a concrete object. The Court also considered the victims desire to receive reparations aimed at helping them ensure their livelihoods and well-being in a sustainable way, over time, and not just to help them meet their needs in the short term (para. 65). Individualized collective reparations are “centered on the individual members of the group. Although collective, these reparations are beneficial on an individual level and make it possible to target the needs and current situation of each of the victims belonging to the group” (para. 158).

    **2. International Court of Justice

In numerous decisions, the ICJ has recalled the principle of international law that a State’s violation of its international obligations, such as those contained in a treaty, entails an obligation to provide adequate reparation. This principle is embodied under Article 31 of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts, which reflects customary international law. This article provides that:

  1. The responsible State is required to make full reparation for the damage caused by the internationally wrongful act;

  2. Damage includes any damage, both material and moral, resulting from the internationally wrongful act of the State.

Several ICJ judgments have required States to pay compensation to other States for damage caused by their wrongful acts, such as those listed below: Case concerning*The Factory at Chorzów, Claim for indemnity (Merits) , 26 July 1927, Series A, No. 17 at p. 21 and 47; Case of the Corfu Channel (Assessment of the amount of compensation due from the People’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland), Judgment , 15 December 1949, I.C.J. Reports 1949, p. 244; Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment , 27 June 1986, p. 14, paras. 15, 283-285, 292 and Order [discontinuance of proceedings] of 26 September 1991 , I.C.J. Reports 1991, p. 47; Case of Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment , 25 September 1997, I.C.J. Reports 1997, p. 7, para. 152; Case of Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment , 31 March 2004, I.C.J. Reports 2004, p. 12, para. 153; Case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment , 19 December 2005, I.C.J. Reports 2005, p. 168, para. 345 and Reparations, Judgmen t, 9 February 2022, I.C.J. Reports 2022, p.13, paras. 405-409; C ase of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment , 19 June 2012, I.C.J. Reports 2012, p. 324, para. 61; Case of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment , 16 December 2015, I.C.J. Reports 2015, p. 665, para. 229 and Compensation, Judgment , 2 February 2018, I.C.J. Reports 2018, p. 15, para. 157; Case of Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Judgment , 30 March 2023, General List No. 164, para. 236.

**In most cases, the ICJ’s judgments focus on the legal dispute and leave the determination of reparations for the damages caused by the wrongful acts of States, to subsequent agreement between the States concerned. According to the ICJ, the fact that the parties to a dispute cannot agree on the issue of reparation is not in itself sufficient to justify its jurisdiction.

The Court also recalled that there may be other forms of reparation for violations by States of their international obligations, which are not always or only financial.

**

For example, in its 2007 judgment in the case of Bosnia and Herzegovina v. Serbia and Montenegro , the Court held that reparation for violations of the Genocide convention by Serbia would be satisfied by the immediate transfer of the person accused of genocide to the ICTY and would not involve the payment of financial reparations ( Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment , 26 February 2007, I.C.J. Reports 2007, p. 43, para. 471). In the case of Avena and Other Mexican Nationals , which concerned the death sentences imposed by US courts on Mexican nationals who had been deprived of consular protection, the ICJ judgment confirmed that the US had violated its international obligations under the Vienna Convention on Consular Relations. The ICJ also ruled that “the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals” ( Mexico v. United States of America, Judgment , 31 March 2004, I.C.J. Reports 2004, p. 12, para.153).

**However, the ICJ may also decide to rule on the amount of financial compensation if the States cannot agree on this issue in their direct negotiations.

**

For example, in its 2005 judgment on the DRC case, the ICJ found the Republic of Uganda responsible for breaching its international obligations toward the DRC in a number of different ways. The Court ruled that in respect of these violations, Uganda was under an obligation to make reparations to the DRC for the injury and damage caused to it. In the same 2005 judgment, the Court further ruled that, in the absence of an agreement between the parties, the question of the reparations due would be determined by the Court in a subsequent proceeding ( Democratic Republic of the Congo v. Uganda, Judgment , 2005, para 345). In the subsequent reparation judgement in this case, delivered in 2022, the Court acknowledged the failure of the negotiation process and ordered Uganda to pay the DRC 325 million US dollars in reparations for damages caused by its unlawful military activities and occupation of the DRC’s territory. This amount included 225 million US dollars in compensation for damage to persons, 40 million US dollars for damage to property and 60 million US dollars for damage to natural resources. In its ruling on reparations, the ICJ also reiterated its view that the amount of reparations owed by a State must be within its financial capacity ( Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda, Reparations, Judgment , 9 February 2022, I.C.J. Reports 2022, p. 13, paras. 405-409).

In its 2015 judgment in the case of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), the ICJ also ruled that Nicaragua had an obligation to compensate Costa Rica for the material damage caused by its unlawful activities, and that if the parties failed to reach an agreement on the matter within 12 months, the Court would resolved this issue in a subsequent proceeding ( Nicaragua v. Costa Rica, Judgment , 16 December 2015, para. 229). On 2 February 2018, the ICJ judgment acknowledged the failure of the negotiation process and ruled on reparations. The Court concluded that the total amount of reparation to be awarded to Costa Rica was 378,890.59 US dollars to be paid by Nicaragua by 2 April 2018 ( Nicaragua v. Costa Rica, Compensation, Judgment , 2 February 2018, para. 157).

In its 2023 judgment in the Case of Certain Iranian Assets (Islamic Republic of Iran v. United States of America) , the ICJ found that the United States had violated some of its international obligations under the Treaty of Amity, Economic Relations and Consular Rights and was obliged to compensate the Islamic Republic of Iran for the harmful consequences of these violations. The Court further decided that if, within a period of 24 months from the date of the present judgment, the parties had not reached an agreement on the question of compensation to be paid to the Islamic Republic of Iran, the matter would be settled by the Court, at the request of either party. ( Islamic Republic of Iran v. United States of America, Judgment, 30 March 2023, paras. 236(7) and (8)).

The ICJ also distinguishes the process of States-to-States reparation from other individual reparation regimes. In the Case of Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening), Judgment , 3 February 2012, I.C.J. Reports 2012, p. 99, paras. 94 and 108), the ICJ clarified that the right to individual reparation remains subject to the principle of jurisdictional immunity of States and the obligation of reparation between States. It affirmed that under international law there is no individual right to reparation that can be directly enforced against a third State (para. 108). The Court affirmed 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”. (para. 94).

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ICC Website on the Trust Fund for Victims

@https://www.trustfundforvictims.org/en

**For Additional Information:

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African Court on Human and Peoples’ Rights, Comparative Study on the Law and Practice of Reparations for Human Rights Violations , September 2019, 135 pages. Available at https://www.african-court.org/wpafc/wp-content/uploads/2020/11/Comparative-Study-on-the-Law-and-Practice-of-Reparations-for-Human-Rights-Violations.pdf

Agreement between the State of Israel and the Federal Republic of Germany (with Schedule, Annexes, Exchanges of Letters and Protocols) , Luxembourg, 10 September 1952.

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

Diakonia International Humanitarian Law Centre, Background: What should a State do if it violates international law? , 2023, Available at https://www.diakonia.se/ihl/resources/international-law/reparations-international-law/

Draft Articles on Responsibility of States for Internationally Wrongful Acts , adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its fifty-third session, 23 April-1 June and 2 July-10 August 2001, UN Doc. A/56/10, 2001.

John Authers, “Making Good Again: German Compensation for Forced and Slave Laborers”, in The Handbook of Reparations, Oxford University Press, 2006.

Gillard, Emmanuelle-Chiara. “Reparation for Violations of International Humanitarian Law.” International Review of the Red Cross, vol. 85, no. 851, (September 2003): 529-555.

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

International Commission of Jurists, The Right to a Remedy and Reparation for Gross Human Rights Violations: A Practitioners’ Guide , Revised Edition, 2018. Available at https://www.icj.org/wp-content/uploads/2018/11/Universal-Right-to-a-Remedy-Publications-Reports-Practitioners-Guides-2018-ENG.pdf

Journal of International Criminal Justice, “Symposium, Victims’ Participation in International Criminal Law” J ournal of International Criminal Justice , vol. 8, no. 1 (March 2010): 75-179.

Liu Yang, “Compensation in the jurisprudence of the International Court of Justice: Towards an equitable approach”, in Journal of International Dispute Settlement , 2023, p. 1-33, Oxford, Available at https://doi.org/10.1093/jnlids/idad023

Office of the United Nations High Commissioner for Human Rights, Rule-of-Law tools for post-conflict states: Reparations programmes , 2008, 41 pages. Available at https://www.ohchr.org/sites/default/files/Documents/Publications/ReparationsProgrammes.pdf

Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission , Available at https://pca-cpa.org/en/cases/71/

Pérez-León-Acevedo, Juan-Pablo. “Compensation in Cases of Mass Atrocities at the International Court of Justice and the International Criminal Court” in The Law & Practice of International Courts and Tribunals , vol. 22 (2023), Issue 1, (March 2023) Brill-Nijhoff. Available at: https://brill.com/view/journals/lape/22/1/article-p30_3.xml

Sveaass, Nova and Sønneland, Anne Margrethe, “Dealing With the Past: Survivors’ Perspectives on Economic Reparations in Argentina”, International Perspectives in Psychology: Research, Practice, Consultation , vol. 4, no. 4, 2015, p. 223-238, Available at https://www.apa.org/pubs/journals/features/ipp-0000041.pdf

Stubbins Bates Elizabeth et al., Chapter 5, “Victims’ Rights to a Remedy and Reparation” in Terrorism and International Law: Accountability, Remedies, and Reform: A Report of the IBA Task Force on Terrorism , Oxford University Press (2011).

**United Nations, “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 Humanitarian Law.”, annexed to UN General Assembly resolution 60/147 of 16 December 2005.

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United Nations Compensation Commission , Available at https://uncc.ch/home#:~:text=It%20was%20created%20in%201991,of%20Kuwait%20in%201990%2D1991

“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. Cherif Bassiouni, Submitted in Accordance with Commission Resolution 1999/33.” Doc. E/CN.4/2000/62, 18 January 2000.

Van Boven, Theo, “Chapter 1: Victims’ Rights to a Remedy and Reparation: the United Nations Principles and Guidelines” in Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making , Second Revised Edition, Publisher: Brill, Nijhoff, 7 February 2020.

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