What is reparation?

Who can claim reparation? | Forms of reparation | Perceptions of reparation

"It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form." (1)

Reparation is a principle of law that has existed for centuries, referring to the obligation of a wrongdoing party to redress the damage caused to the injured party. Under international law, "reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed."(2)

The right to reparation is a well-established principle of international law. The International Law Commission affirmed this principle in its 53rd Session when it adopted the draft articles on responsibility of States for internationally wrongful acts.(3) The right is also firmly embodied in international human rights treaties and declarative instruments (4) and has been further refined by the jurisprudence of a large number of international and regional courts, as well as other treaty bodies and complaints mechanisms.(5)

In 2005, the UN General Assembly adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law.(6) These Principles constitute a significant contribution to the codification of norms relating to the right to reparation.

Who can claim reparation?

International human rights treaties and instruments provide that victims of international crimes have the right to seek and obtain effective remedies for the violation of their rights.(7)  The Basic Principles and Guidelines on the Right to a Remedy and Reparation provide that the term victim includes those who have individually or collectively suffered harm, and may include the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.(8)

Until recently in criminal proceedings, the standing of victims to seek reparation was limited to the domestic sphere.(9) However, the Rome Statute of the International Criminal Court now recognises that victims of crimes under the jurisdiction of the Court may seek reparation and allows the Court to make orders directly against a convicted person to make reparations to them.(10)

Forms of reparation

A common misconception is that reparation is synonymous with compensation. Although compensation is common, other forms of reparation include: restitution, rehabilitation, satisfaction and guarantees of non-repetition.(11) 

For the most heinous crimes, it is often impossible to restore victims to their original situation making other forms of reparation necessary:

The types of reparation appropriate to remedy the harm suffered will differ depending on the individual circumstances. For example, in 2007 civil society made an important statement on the particular factors to be considered in providing reparation to women and girls harmed in conflict in the Nairobi Declaration on Women's and Girls' Right to a Remedy and Reparation. There, it is recognized that reintegration and restitution by themselves are not sufficient goals of reparation, which must address the political and structural inequalities that allow the violations to occur in the first place.(16)

Perceptions of reparation

Given that victims come from a diversity of backgrounds and experiences, victims' perceptions of reparations and the 'reparations process' are varied and multidimensional. Victims in the midst of conflict will not have time to think about 'reparations'. Cultural differences may also impact on perceptions of reparations. In some cultures, active participation in criminal proceedings may be essential whereas in others, the admission of guilt by the wrongdoer will be most important. In some contexts, the fact that one can never undo what was done or make adequate reparations may mitigate against reparations, whereas in others, the symbolic effect is seen as extremely beneficial.(17) The context of the violation may give rise to specific perceptions of what  kind of reparation should take place. For example, a situation of massive population displacement and ethnic cleansing may necessitate a program for the return of refugees and displaced persons, and/or the other sustainable solutions for these victims. See our Report on Torture Survivors' Perceptions of Reparation.

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  1. Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17 at 29.
  2. See Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17, at 47 (September 13); International Court of Justice: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits 1986 ICJ Report, 14, 114 (June 27); Corfu Channel Case; (UK v. Albania); Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 184 ; Interpretation des traites de paix conclus avec la Bulgarie, la Hongrie et la Romanie, deuxieme phase, avis consultatif, C.I.J., Recueil, 1950, p. 228. See also Article 1 of the draft Articles on State Responsibility adopted by the International Law Commission in 2001: "Every internationally wrongful act of a State entails the international responsibility of that State. (UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001" (ILC draft Articles on State Responsibility)).
  3. See Report of the International Law Commission - 53rd session (23 April - 1 June and 2nd July - 10 August 2001), UN Doc. (A/56/10). Ibid., para 23.
  4. For example, the Universal Declaration of Human Rights (Art. 8); the International Covenant on Civil and Political Rights (art.2 (3), art 9(5) and 14(6)); the International Convention on the Elimination of All Forms of Racial Discrimination (art 6); the Convention of the Rights of the Child (art. 39); the Convention against Torture and other Cruel Inhuman and Degrading Treatment (art. 14) and the Rome Statute for an International Criminal Court (art. 75). It has also figured in regional instruments, e.g. the European Convention on Human Rights (art 5(5), 13 and 41); the Inter-American Convention on Human Rights (arts 25, 68 and 63(1)); the African Charter on Human and Peoples' Rights (art. 21(2)). See also, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Adopted by General Assembly resolution 40/34 of 29 November 1985; Declaration on the Protection of all Persons from Enforced Disappearance (art 19), General Assembly resolution 47/133 of 18 December 19 92; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Principle 20), recommended by Economic and Social Council resolution 1989/65 of 24 May 1989; and Declaration on the Elimination of Violence against Women.
  5. See, e.g. ruling of the Inter-American Court of Human Rights in the Velásquez Rodríguez Case, Serial C, No 4 (1989), par. 174 . See also Papamichalopoulos vs. Greece (Art. 50) E.C.H.R. Serial A, No 330-B (1995), p. 36..
  6. 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, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005 (Basic Principles).
  7. See above n. 4.
  8. Basic Principles, par. 8.
  9. Reparations proceedings are common in civil law countries where claims for damages may be attached to criminal prosecutions. In common law countries, it is more typical for claims for damages to be sought separately through civil courts.
  10. Rome Statute of the International Criminal Court, UN Doc. A/Conf. 183/9th of 17 July 1998, entry into force 1 July 2002, art. 75(2).
  11. Basic Principles, par. 18.
  12. Id, par. 19.
  13. Id, par. 20.
  14. Id, par. 21.
  15. Id, par. 22 and 23.
  16. Nairobi Declaration on Women's and Girls' Right to a Remedy and Reparation, 21 March 2007, 
  17. REDRESS. Torture Survivors Perceptions of Reparation: A Preliminary Survey, 2001.

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