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REDRESS is most grateful to Chameleon Books Inc. which has kindly given permission to reproduce Corporate Decision by George Tooker, USA

 WHAT IS REPARATION


"[I]n honouring the victims' right to benefit from remedies and reparation, the international community keeps faith and human solidarity with victims, survivors and future human generations, and reaffirms the international legal principles of accountability, justice and the rule of law".(1)


Reparation is a principle of law that has existed for centuries. Reparation refers to the obligation of the 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)

Reparation impacts on both the individual victim and the wider societies and communities affected by refocusing on the restorative in addition to the retributive. In the context of mass atrocities, reparation has a particularly important role to play in rebuilding war-torn societies, by advancing truth and acknowledging the depth of the crimes committed.

Clarification of Terminology

There are common misconceptions as to what the word 'reparation' actually means. The terms 'reparation,' 'restitution,' 'satisfaction,' 'compensation,' 'rehabilitation,' 'damages,' 'indemnity,' 'injury,' 'remedy,' and 'redress' are often used without clear distinction.

The most common misconception is that reparation is synonymous with 'financial compensation.' Although compensation is indeed a very common form of reparation, it is not the only existing form that reparation can take. It is also common to use the term 'reparation' in the context of criminal prosecutions. Criminal justice, as a form of reparation, has been recognised as a consequence of the amnesty laws enacted in the aftermath of mass atrocities (such as those of Latin America and Africa) that aimed to protect the military or public officials involved. Although the amnesties were enacted "to secure a safe transition to democracy", the survivors and relatives of victims are still claiming "reparation and justice,"(3) and demand the abolition of amnesties and the criminal prosecution of those responsible.

Although there is agreement on the legal meaning in international law of 'restitution,' 'satisfaction,' 'compensation' and 'rehabilitation' - which constitute forms of reparation - there is still some confusion with the terms 'reparation,' 'reparations,' 'remedy' and 'remedies.'

In keeping with the Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (4) (Draft Principles on Reparation), we will use the term 'reparation' to refer to the range of measures that may be taken in response to an actual or threatened violation, embracing both the substance of relief as well as the procedure through which it may be obtained. For example, if an individual has been arbitrarily detained, he/she can seek compensation from the State through civil and/or administrative remedies. The obligation to afford adequate compensation and the obligation to afford an effective route to obtain it are both part of the general obligation to afford reparation. 'Remedy,' or 'remedies,' refers to the (procedural) means by which a right is enforced, or the means by which a violation of a right is prevented or redressed. In the previous example, the remedy would be the administrative or civil procedure used to obtain compensation. The term "reparation" refers to the substance of the relief afforded, such as an award for damages or a public apology. And finally, "redress" is the action "to" redress, repair, restore or remedy.

Forms of Reparation

Reparation may take a number of forms, including: 1) restitution, 2) compensation, 3) rehabilitation, and 4) satisfaction and guarantees of non-repetition.(5) While it is recognised that it is generally not possible to restore victims to their original situation before the violations occurred, particularly in respect of human rights violations that constitute international crimes, restitution may also include restoration of liberty, legal rights, social status, family life and citizenship; return to one's place of residence; and restoration of employment and return of property.(6) Compensation is understood to include any economically assessable damage resulting from the crime, including "physical or mental harm, including pain, suffering and emotional distress; lost opportunities, including education; material damages and loss of earnings, including loss of earning potential; harm to reputation or dignity; and costs required for legal or expert assistance, medicines and medical services, and psychological and social services."(7) Rehabilitation is said to include medical and psychological care as well as legal and social services, (8) and satisfaction and guarantees of non-repetition will include such individual and collective elements as revelation of the truth, public acknowledgment of the facts and acceptance of responsibility, search for the disappeared and identification of remains, the restoration of the dignity of victims through commemoration and other means, activities aimed at remembrance and education and at preventing the recurrence of similar crimes.(9)

Perceptions of Reparation

Given that victims of gross violations of human rights will come from a diversity of backgrounds and experiences, victims' perceptions of reparations and the 'reparations process' will be as varied and multidimensional as the victims themselves. For instance, victims in the midst of conflict with immediate and urgent security concerns 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 understood to be extremely beneficial and worthwhile.(10) The context of the violation may give rise to very specific perceptions of what form(s) reparations should take. 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 development of other sustainable solutions for these victims.

International Law and Remedies

The right to reparation is a well-established principle of international law. As stated in the Chorzow Factory case of the Permanent Court of International Justice,

"it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form."(11)


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.(12) Additionally, the right to reparation is firmly embodied in international human rights treaties and declarative instruments.(13) It 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. (14)

Negotiations are taking place to have the Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law adopted.(15) The Draft Principles constitute a significant contribution to the codification of norms relating to the right to reparation.

The standing of victims of international crimes to seek and obtain effective remedies for the harm suffered has received special attention in both human rights treaties and instruments,(16) as in international humanitarian law.(17) In criminal proceedings, the standing of victims to seek reparation has been largely limited to the domestic sphere.(18) Unlike the Yugoslav and Rwanda tribunals, the Rome Statute of the International Criminal Court recognises the standing of victims of crimes under the jurisdiction of the Court to seek reparation and stipulates in Article 75 Paragraph 2 of the Statute that the "Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation."(19) While recognising that the jurisdiction of the Statute is restricted to adjudging the crimes of individuals, Paragraph 6 of Article 75 notes that "[n]othing in this article shall be interpreted as prejudicing the rights of victims under national or international law."

The process of seeking reparation should be "expeditions, fair, inexpensive and accessible,"(20) though it is difficult to conceive of how this might be achieved in the context of mass atrocity. The task of devising criteria and procedures that are meaningful in context, equitable and accessible, without having them appear arbitrary to potential beneficiaries is daunting. There are numerous examples of mass claims processes that have been employed (21) though invariably these have been established pursuant to international settlement agreements or arbitral processes where liability has been agreed.

1. Preamble, E/CN.4/2000/62.
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 for example, the divisions between Madres and Abuelas de Plaza de Mayo in Argentina http://www.madres.org and http://www.abuelas.org.ar.
4. See Annex, E/CN.4/2000/62.
5. E/CN.4/2000/62.
6. E/CN/4/2000/62, para 22. See also, Principles 8 - 10 of 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.
7. Id, para 23.
8. Id. , para. 24.
9. Id. para 25.
10. REDRESS. Torture Survivors Perceptions of Reparation: A Preliminary Survey, 2001.
11. Factory at Chorzow, Jurisdiction, Judgement No. 8, 1927, P.C.I.J., Series A, no. 17, p. 29.
12. 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.
13. 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.
14. 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), pg 36.
15. See, also, the Report of the Chairperson-Rapporteur, Ambassador Alejandro Salinas (Chile), on the consultative meeting on the draft Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law, E/CN.4/2003/63 of 27 December 2002.
16. See specifically, the Universal Declaration of Human Rights (Art. 8), the International Covenant on Civil and Political Rights (art. 2(3), 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), and the Convention against Torture and other forms of Cruel, Inhuman and Degrading Treatment (art. 14). It is also found in several regional instruments, e.g. the European Convention on Human Rights (art. 5(5), 13 and 41), the Inter-American Convention on Human Rights (art. 25, 68 and 63(1)), the African Charter of 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 1992; 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 the Declaration on the Elimination of Violence against Women.
17. See, for example, Art. 3 of the Hague Convention regarding the Laws and Customs of Land Warfare, 1907 Hague Convention IV; Article common to the four Geneva Conventions 1949 (I: Art. 51; II: Art. 52; III: 131; IV: Art. 148); Article 91 of the 1977 Additional Protocol I.
18. 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.
19. Rome Statute of the International Criminal Court, UN Doc. A/Conf. 183/9th of 17 July 1998, entry into force 1 July 2002.
20. Principle 5, 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. (the Victims Declaration).
21. For example, the Iran-United States Claims Tribunal and the UN Compensation Commission

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