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The United Nations Principles to Combat Impunity: A Commentary edited by Haldemann, Frank; Unger, Thomas (22nd March 2018)

Part IV The Right to Reparation/Guarantees of Non-Recurrence, A The Right to Reparation, Principle 31 Rights and Duties Arising Out of the Obligation to Make Reparation

Frank Haldemann

From: The United Nations Principles to Combat Impunity: A Commentary

Edited By: Frank Haldemann, Thomas Unger

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 21 November 2019

Subject(s):
Human rights — Reparations — Truth and Reconciliation Commissions

(p. 335) Principle 31.  Rights and Duties Arising Out of the Obligation to Make Reparation

Any human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to seek redress from the perpetrator.

A.  Summary of Findings

Inspired by a cosmopolitan vision of global justice, Principle 31 conceives of ‘reparation’ as an individual right owed to any person whose human rights have been violated. Cast in categorical language, the Principle is meant to reflect existing international law rather than a desideratum of legal policy. The claim as it stands has a strong moral appeal, and recent years have seen an increasing recognition of a right for individuals to claim reparation under international law. However, as discussed in this commentary, the idea of a general individual right, as ‘codified’ in Principle 31, arguably rests on rather weak legal foundations. Moreover, even if one admits the existence of such a right as a matter of international law, its strict application to contexts of large-scale atrocities and political transitions is likely to prove a daunting undertaking. While the call for ‘reparation’ is nowhere more needed than in such contexts of unspeakable cruelty and suffering, the inescapable truth about mass atrocity is that it is irreparable: nothing can ever ‘wipe out’ the wrong done as if it had never occurred. With this in mind, this commentary concludes with the observation that the right to reparation is both ‘necessary’ and ‘impossible’.

B.  Contextual and Historical Introduction

Principle 31 reflects a significant trend in recent international affairs: the call for ‘reparations’ as a means of ‘correcting’ legacies of serious and widespread human rights abuses. Since the end of the Second World War, and especially over the course of the 1990s, reparation claims have been presented for a variety of historical injustices, including the Holocaust; forced and slave labour in Nazi-dominated Europe; Japanese abuse of the ‘comfort women’ in Korea and the Philippines; ‘state terrorism’ and other authoritarian practices in Latin America, Eastern Central Europe, and South Africa; the oppression of indigenous peoples in Australia, New Zealand, and the United States; and the enduring legacy of slavery and institutional racism in the United States.1

(p. 336) Reflecting this change in the Zeitgeist, the 1990s and early 2000s saw a range of normative developments pointing to an increased international recognition of aggrieved individuals as holders of legitimate claims to reparation. Among these fin-de-siècle developments was the adoption in 1998 of the Rome Statute of the International Criminal Court (ICC),2 which established a permanent system of international criminal justice with the power to provide redress in respect to the harm suffered by victims of genocide, crimes against humanity, and other ‘core’ crimes under the jurisdiction of the Court. One should mention, too, the progressive elaboration of 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, which were finally adopted by the United Nations General Assembly in 2005.3

To be sure, the concept of ‘reparation’ is anything but new in international law. As early as 1927, the Permanent Court of International Justice (PCIJ) famously stated, in the oft-cited Factory at Chorzów case, that ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’.4 Undisputed ever since, this principle has been laid down in the 2001 International Law Commission (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts.5 And yet the perspective adopted by Principle 31 differs significantly from such ‘ordinary’ cases of state responsibility. Firmly embedded in cosmopolitan discourses of human rights, this Principle marks a shift from an exclusive concern with disputes among sovereign states to the protection of the basic rights of individual human beings, regardless of nationality, creed, gender, age, or any other status.

Principle 31 figures prominently in section IV of the Updated Principles, entitled ‘The Right to Reparations/Guarantees of Non-Recurrence’. In the course of the revision of the Principles by independent expert Diane Orentlicher, the title of this section was changed from ‘Right to Reparation’, thus giving expression to the common idea that reparation and non-repetition, while separate issues, are both essential aspects of the repair and continuation of a legal relationship affected by a breach of international obligations.6 The wording of Principle 31, however, is identical to that of Principle 33 in the original 1997 version of the Principles drafted by UN Special Rapporteur Louis Joinet. Both Joinet and Orentlicher devoted little, if any, space to commenting on these principles in their respective reports.7 One notes, here, a certain disproportion between the complexity and scope of the problem addressed and its laconic treatment.

(p. 337) C.  Theoretical Framework

Principle 31 opens with a strong normative claim: ‘Any human rights violation’, it states, ‘gives rise to a right to reparation’. The claim, as it stands, may appear to many so intuitively appealing, so deeply ingrained in current legal thinking and social moralities, as not to require further explanation. However, far from being self-explanatory, the claim raises a variety of questions about its meaning and foundations—including, to begin with, the question of what it is to have a right to reparation.

I.  Reparation as a right

In the context of Principle 31, the relevant notion of ‘right’ is arguably that of a ‘claim right’. To have a claim right, as commonly defined, means that one holds a claim to something against others.8 A claim right, so understood, imposes corresponding duties on others, duties that can be negative (requiring non-interference) or positive (demanding the provision of some good or service). Viewed in these terms, the right stated in Principle 31 can be understood as a positive claim right, which correlates with a duty to make reparation to anyone whose human rights were violated.

A further common distinction is that between moral and legal rights. While legal rights are those rights we have in consequence of the existence of some legal system, moral rights are grounded in morality and are said to exist regardless of whether they are recognized by the law. That distinction is significant. Holding legal—rather than ‘merely’ moral—claim rights is an essential part of what it means to be recognized as full members of the political community.9 As Joel Feinberg argues, a world without legal claim rights would be one in which human beings ‘would no longer hope for decent treatment from others on the ground of desert or rightful claim’.10

What kind of right, then, is the right stipulated by Principle 31—moral, legal, or both? In the eyes of many, if not most people, victims of serious wrongdoing have a morally justified claim to reparation.11 But does this claim also amount to a legal right—a claim actually recognized and protected by law?

II.  Reparation in human rights treaties

While not legally binding in themselves, the Principles are intended to ‘reflect recent developments in international law and practice, including international jurisprudence and State practice’.12 This idea of a ‘codification’ of the law as it is (as distinct from what it ought to be) appears clearly in Principle 31, cast as it is in categorical language that leaves no room for ambiguity. The question, however, remains whether Principle 31 is an accurate reflection of the present state of international law. To assess whether this is so, (p. 338) it is necessary to examine the existing normative framework, and especially the relevant provisions of international human rights treaties. This section will provide a general, necessarily brief and sketchy, overview of those provisions.13

10  It bears noting, at the outset, that there is no human rights treaty explicitly affirming a right to reparation in terms as general as those employed by Principle 31. Where treaties do make explicit reference to the duty to provide reparations, they tend to do so in a limited and specific manner. The International Covenant on Civil and Political Rights (ICCPR),14 for instance, recognizes in Articles 9(5) and 14(6) a right to compensation for persons subjected to unlawful arrest or detention or to miscarriages of justice. Other conventions, while focused on specific types of violations, adopt a more comprehensive notion of reparation, extending beyond ‘mere’ financial compensation.15

11  At the regional level, Article 41 of the European Convention for the Protection of Human Rights (ECHR)16 empowers the Strasbourg Court to provide, ‘if necessary’, for ‘just satisfaction to the injured party’ in the event that domestic law provides only for ‘partial reparation’ of the harm suffered as a result of a violation of the Convention. As the phrase ‘if necessary’ indicates, a considerable measure of discretion is given to the Court as to how to exercise that power. Something similar can be said about the American Convention on Human Rights (ACHR),17 Article 63(1) of which enjoins the Inter-American Court on Human Rights (IACtHR) ‘to rule, if appropriate, that the consequences of the measure or situation that constituted the breach of … [a] right or freedom [protected by this Convention] be remedied and that fair compensation be paid to the injured party’.

12  The foregoing suggests, if anything, that human rights treaties offer a rather weak foundation upon which to build a general right to reparation as envisaged by Principle 31. It could be objected, however, that one crucial element of virtually all human rights instruments has been overlooked so far: the obligation to provide ‘effective remedy’ in the event of a human rights violation.18 It has been argued that ‘effective remedy’ has both a procedural and substantive meaning: a remedy is only effective, so the argument goes, if it entails access to remedial procedures and adequate redress for the harm suffered by victims of human rights violation.19 While not uncontroversial, this interpretation has been influential in the recent practice of human rights bodies and courts.20

(p. 339) 13  Lastly, the ‘respect-and-ensure’ provision in human rights treaties may offer yet another, though perhaps rather thin, basis from which to derive a right to reparation. The requirement that state parties ‘respect and ensure’ (or ‘secure’) rights to all individuals has become a standard formula for describing human rights obligations.21 The idea that victim redress is required to effectively ‘ensure’ human rights whenever they are violated has been widely endorsed by leading human rights institutions, and it is also reflected in the UN Basic Principles on the Right to Reparation.22 This view is not uncontested, however, and has been criticized for being conceptually problematic, if not flawed.23

III.  A customary right to reparation?

14  A further question to be asked, at this stage, is whether there is a customary international right for individuals to receive reparations for human rights violations. The question matters, of course: if recognized as part of international customary law, an individual right to reparation may be opposable to a state even if it is not party to a relevant human rights treaty, or if it has made a reservation to a relevant human rights provision.24

15  Proponents of a customary right to reparation often refer to the above-mentioned ILC Articles on State Responsibility to support their argument.25 This may seem plausible enough: these Articles, after all, reflect well-established, customary rules on the state’s responsibility under international law—including the principle, stated in Article 31(1), that the responsible state is under an obligation to make ‘full reparation’ for the injury caused by internationally wrongful acts. Moreover, while designed to regulate legal relations between states, these Articles are—as stated in the ‘savings clause’ of Article 33(2)—‘without prejudice’ to the possibility that individuals may be entitled to invoke state responsibility on their own account. And yet it is open to debate whether it is legally sound, or even desirable, to simply transpose the remedial logic inherent in the ILC Articles to the relationship between the state and its citizens.26

IV.  Why reparation?

16  Any serious discussion of the topic at hand cannot fail to ask detailed questions about the precise meanings, scope, and purposes of reparation. Such questions are, indeed, variously addressed by the different Principles within section IV. While Principles 32 (p. 340) and 33 address the question of how to provide reparation, through which procedures and forums, Principle 34 deals with the substance of reparation, its scope and modalities. As for Principle 31, it specifically focuses on three questions: Why are reparations owed? To whom are they owed? And by whom?

17  With respect to the first question, Principle 31’s opening phrase implies a simple answer: the reason why reparation is owed is it that a human right has been violated. Given the ‘universalist’ outlook of the Principles, it seems safe to assume that the focus here is on internationally guaranteed human rights—minimum guarantees the source of which is international law and which, therefore, are not dependent at all on any domestic legal system.27 Interestingly, and in contrast with the UN Basic Principles on Reparation, Principle 31 does not limit its scope to particularly grave instances of human rights violations. Nor does the Principle make any distinctions between different categories or ‘generations’ of human rights, as if stressing the indivisibility and interdependence of human rights.28

V.  Whose rights? Whose duties?

18  If there is an individual right to reparation, who may claim it? The question is given only passing treatment by Principle 31, which broadly refers to ‘the victim or his or her beneficiaries’ as holders of a right to reparation. One will also look in vain for further clarification of these terms in the relevant Reports by Joinet and Orentlicher, both of which are conspicuously silent on the matter.

19  While powerful and evocative, the notion of ‘victim’ is not uncontested.29 Nor is its meaning settled under international law. As has been noted, international human rights law lacks a consistent and shared definition of ‘victim’, and the meaning of the word ‘continues to be disputed terrain’.30 And yet some efforts have been made in the direction of clarifying the notion of ‘victim’ as relevant to the arena of human rights. An influential definition can be found in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The Declaration defines victims broadly as ‘individuals who have individually or collectively suffered harm’, and allows, ‘where appropriate’, for the extension of the victim status to individuals other than the direct victim (including ‘direct family members’ and ‘dependents of the direct victim’).31 The specific reference in Principle 31 to the victim’s ‘beneficiaries’ may be taken as evidence of such a large understanding of the victims’ status.

20  If victims of human rights violations have a right to reparation then there is a correlative duty to repair the harm caused by the violation. That duty is the other side of the coin, so to speak. So whose duty is it? Principle 31’s concern is mainly with states as primary bearers of human rights obligations. It does not venture into controversial debates (p. 341) about human rights obligations of non-state actors, such as transnational corporations and other business enterprises.32

21  Moreover, Principle 31 links the right to reparation to ‘the possibility for the victim to seek redress from the perpetrator’. Within domestic legal systems around the world, persons unlawfully harmed by others are entitled to obtain reparation through criminal or civil proceedings, or, where the system exists, a combination thereof.33 Some domestic legal systems go even so far as to enable victims of human rights violations to claim reparation from perpetrators in respect to human rights abuses committed abroad. The best-known example is the Alien Tort Statute (ATS), a prominent human rights tool in the United States that gives federal district courts ‘original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’.34

22  At the level of international law, the Rome Statute of the ICC provides an innovative framework through which the harm suffered by victims of egregious conduct may be redressed.35 As part of this framework, Article 75(2) empowers the Court to ‘make an order directly against the convicted person specifying appropriate reparation’. In addition, Article 79 provides for the establishment of a Trust Fund, which has the power to render assistance to victims outside the context of Court-ordered reparations.36

V.  Reparation and mass violations

23  As noted, Principle 31 does not require a human rights violation to have a systematic or serious character before it gives rise to a right to reparation. Nonetheless, the combat against impunity as envisaged in the set of Updated Principles can hardly be disconnected from contexts of gross human rights violations and transitions from authoritarianism or armed conflict to a more just, peaceful, and decent political order. It is surely no coincidence, after all, that the Principles’ definitional part proposes clarifications of what both the phrases ‘serious crimes under international law’ and ‘restoration of or transition to democracy and/or peace’ mean.

24  It is precisely in contexts of mass violations and political transition that the challenges in terms of repairing harm tend to be most daunting. In such situations, the victims number in the thousands, if not millions, as a result of which the burden placed on the judiciary may become overwhelming, especially when actions are filed in a short period. Moreover, many of the substantive criteria or procedural rules applicable to traditional judicial proceedings—in matters of evidence or of statute of limitations, for instance—seem ill fitted to the reality of collective violence and may, therefore, turn out to be fatal for the victims as plaintiffs.37

(p. 342) 25  Principle 31 is silent on these issues, just as it is silent on the general question of how a right to reparation may be realized. As mentioned, the matter of ‘how’ is left to subsequent principles—especially Principle 32, which, in its updated version, refers to ‘reparations programmes’ as alternative (and seemingly ‘second-best’) avenues for providing reparations. The question of how to translate the language of an individual ‘right to reparation’ into the context of gross and systematic human rights violations poses, however, major challenges for human rights courts and treaty bodies—an issue to which the next section will return.

D.  Practice

26  This section reviews some of the legal and predominantly international practices relevant to Principle 31. In doing so, the focus of attention is on how regional human rights courts and UN treaty bodies have addressed the three basic questions that, as suggested earlier, lie at the very heart of Principle 31—the questions of why reparations are owed, to whom, and by whom. The section closes with a tentative overview of approaches that regional human rights courts have adopted to deal with the challenge of affording reparation in cases of large-scale human rights violations.

I.  The right to reparation in international human rights practice

27  In practice, the right to reparation is typically read into and derived from the general duty to provide ‘effective remedy’, which, as noted, is explicitly stated in virtually all human rights conventions. Illustrative of this approach is the relevant practice of the UN HRC. In its General Comment no 31, the HRC takes great pains to establish an intrinsic link between reparations and the ‘effective remedy’ requirement as stated in Article 2(3) ICCPR.38 Ever since, the HRC has routinely reiterated this approach, in spite of some occasionally severe criticism from scholars.39 A similar perspective, albeit expressed in somewhat differing terms, is adopted by the Committee against Torture. In its General Comment no 3, issued in 2012, the Committee considers that the term ‘redress’ used in Article 14 CAT should be understood broadly as encompassing both ‘effective remedies’ and ‘reparation’.40

28  At the level of regional courts, the European Court of Human Rights (ECtHR) has for a long time taken a rather restrictive approach in awarding ‘just satisfaction’ under Article 41 ECHR. In its early jurisprudence, the Court regularly confined itself to noting that the finding of a breach of the Convention in itself constitutes sufficient satisfaction.41 More recently, however, the Court has increasingly awarded financial redress in respect to damage, either pecuniary or non-pecuniary, shown to be caused by violations of the Convention.42

(p. 343) 29  At any rate, as already noted, there is no ‘automatic’ right to ‘just satisfaction’ under the ECHR. Even if an applicant meets all the requirements laid down in Article 41 ECHR, it is left to the discretion of the Court to assess whether compensation, or any other measure of satisfaction, is ‘necessary’. It is against this background that the Court considers that ‘the awarding of sums of money to the applicants by way of just satisfaction is not one of the Court’s main duties but is incidental to the task of ensuring the observance by States of their obligations under the Convention’.43 Given this strong discretionary dimension, it seems difficult to speak here properly of a ‘right’ to reparation; and even more so if one considers that the Court’s remedial jurisprudence has attracted a good deal of criticism for its lack of coherence and predictability.44

30  Of all regional human rights courts, it is the IACtHR that has been the most innovative in its approach to reparations. Equipped with comparatively broad remedial powers, the Court has ordered a remarkably broad range of non-monetary reparative measures in tandem with compensation.45 Since its first contentious case, the San José Court has consistently (though not uncontroversially) interpreted Article 63(1) ACHR as codifying, and transposing into the human rights context, a long-established principle under the law of state responsibility: that ‘every violation of an international obligation which results in harm creates a duty to make adequate reparation’.46 As for the duty’s scope, the Court has vigorously endorsed the so-called ‘principle of full reparation’, insisting that the responsible state must undo, as far as possible, all the harmful effects resulting from the violation.47 In the Court’s recent jurisprudence, however, there has been a certain retreat from—or at least qualification of—this principle in relation to domestic reparations programmes in contexts of political transition.48

II.  Who is a victim?

31  As previously noted, the notion of ‘victim’ lacks clear contours in international human rights law. All the more important is the role of human rights courts and bodies in clarifying and substantiating it. Once again, the Inter-American jurisprudence is of particular relevance here. In interpreting the term ‘injured party’, as employed in Article 64(1) ACHR, the IACtHR subscribes to a remarkably broad understanding of victimhood, expanding well beyond the strict definition of ‘direct victims’ (ie individuals directly harmed as a result of a human rights violation).49 Particularly in cases involving death or disappearance, the Court is willing to recognize the victim’s next of kin as ‘injured parties’, and hence as (p. 344) eligible for reparations, even if they are not direct victims of any violation of the ACHR.50 The San José Court, one should note, interprets the notion of ‘next to kin’ so broadly as to include half-siblings, aunts, stepmothers, and stepfathers, even partners, with close ties to the victim.51

32  The ECtHR, by contrast, has adopted a much more restrictive interpretation of the term ‘injured party’. Since the entry into force of Protocol no 14 in 2010, that term is essentially synonymous with the notion of ‘victim’ as a requirement for lodging an individual petition;52 and the Court has only reluctantly subsumed family members under the category of ‘victim’. In cases involving forced disappearance, the Strasbourg Court has held that the victim status of a family member will depend upon ‘the existence of special factors’ beyond the ‘emotional distress which may be regarded as inevitably caused to relatives of a victim of serious human rights violations’.53

33  Among the UN treaty bodies, the Committee against Torture has defined ‘victims’ as ‘persons who individually or collectively suffered harm’, and has, furthermore, insisted that the term also applies to ‘affected immediate family or dependents of the victim as well as persons who have suffered harm in intervening to assist victims or to prevent victimization’.54 As to the HRC, it has stated, referring to the mother of a disappeared daughter, that ‘she too is a victim of the violations of the Covenant suffered by her daughter’.55

III.  Seeking redress from the perpetrator

34  If Principle 31 links the right to reparation to ‘the possibility for the victim to seek redress from the perpetrator’, the Rome Statute’s redress regime provides an important example of such a possibility at the international level. The reparations jurisprudence of the ICC is still in its early days, however. The first reparation decision was handed down by Trial Chamber I on 7 August 2012, in connection with the conviction of Thomas Lubanga.56 In August 2015, the Appeals Chamber of the Court reversed the Trial Chamber’s decision in a long-awaited judgment. While the Trial Chamber had refrained from issuing a reparation order against Lubanga because of his indigence, the Appeals Chamber insisted that ‘indigence is of no relevance to the imposition of liability for reparations’.57 Moreover, it took pains to stress that reparations orders are ‘intrinsically linked to the individual whose criminal liability is established in a conviction and whose culpability for those criminal acts is determined in a sentence’.58 Reactions to the appeal judgment have been positive (p. 345) overall, with some commentators going so far as to herald it as a ‘turning point for further practice’.59

35  The US ATS is another prominent example of a legal framework through which victims of serious human rights abuse may seek redress from perpetrators of abuse if they are unable to obtain an effective remedy in their own domestic legal system. In a series of cases starting with the famous 1980 decision in Filártiga v Peña-Irala,60 this statute has served as a basis for US courts to hear human rights claims against serious violators of international law, despite the absence of any connection in most cases between the parties and conduct at issue and the US.61 More recently, and more controversially, plaintiffs have increasingly invoked the ATS to sue multinational corporations alleged to have aided and abetted states outside the US in violating international law, or to have directly committed such violations themselves.62 The US Supreme Court’s decision in Kiobel v Royal Dutch Petroleum in 2013 marked, however, a significant change of direction in judicial interpretation, by introducing the presumption that the ATS does not generally apply to claims arising from conduct outside the US.63 Unsurprisingly, the ruling has sparked a great deal of controversy, with some commenters reading it as ‘a giant setback for human rights’ and others as ‘a blessing in disguise’.64

IV.  Mass violations as a challenge to human rights complaints systems

36  The practice of human rights treaty bodies and courts revolves essentially around a model of individualized, case-by-case adjudication. This model is reflective of a ‘day-in-court ideal’ deeply influential in western legal thought.65 However, as already noted, such a case-by-case mode of adjudication appears in many ways ill-suited to dealing with legacies of widespread and systemic human rights violations. Not only does it tend to be too time-consuming and costly to deal efficiently with large numbers of claims; it may also—as has been forcefully argued by Pablo de Greiff—‘disaggregate’ victims and the various efforts undertaken to achieve reparative justice.66

37  In response to such challenges posed to ‘individualized’ complaints procedures, regional human rights courts in Europe and the Americas have explored ways in which human rights systems can be interpreted anew so as to deal more efficiently with mass violations. Noteworthy in this context is the so-called ‘pilot judgment procedure’ of the ECtHR. The Strasbourg Court introduced this special procedure in 2004, and has since applied it in more than 20 cases, mostly dealing with property rights issues involving large numbers of applications similar in substance.67 The aim of this procedure is essentially (p. 346) two-fold: to identify a general structural problem underlying a specific case at hand; and to indicate measures which a respondent state must take to remedy that problem.68 As for the IACtHR, it too has developed a number of strategies for responding to large-scale human rights violations.69 Among these, there is the Court’s practice of easing the burden of proof laid on complainants, namely through the use of presumptions and circumstantial evidence.70 Other strategies involve, for instance, the application of standardized compensation amounts to particular categories of harm,71 as well as the award of collective reparations to entire communities.72

E.  Critical Assessment

38  While central to Principle 31, the idea of a general individual right to reparation rests on ‘fairly weak foundations’.73 As the discussion in this commentary shows, it is doubtful whether current international law provides for a such a general right to reparation for individual victims of serious human rights violations. To say this, however, is not to deny that recent decades have seen a trend, especially at the UN level, toward an increased recognition of victims and their rights to remedy and reparation. In line with a ‘constructivist’ approach to international law, we may see in these developments the emergence of a ‘reparations ethos’ with the potential to ‘shape perceptions as to the evolving character of “the law” ’.74

39  ‘Where there is a right, there is a remedy’ (ubi ius, ibi remedium)—this old legal adage, much quoted by scholars and practitioners alike, emphasizes the importance of appropriate procedures for enforcing rights. It is some such thought that lies behind the claim that the notion of an ‘individual right’ lacks real content and significance without the availability of legal avenues for effectively enforcing it.75 In both international law scholarship and jurisprudence, however, it has been held that a right under international law exists regardless of whether the holder of the right has the capacity to exercise it through adequate enforcement mechanisms at the international level.76 Wherever we stand in this unresolved debate, this issue is relevant for understanding the limits of international law in granting reparation to individual victims of state-sponsored atrocities. One should recall, after all, that there exists so far no general international forum for individuals to (p. 347) file civil claims against governments responsible for human rights violations; and it is unlikely, if not inconceivable, that such a forum will emerge in the near future. It is a ‘hard fact’, as Thomas Tomuschat puts it, that the so-called ‘international community’ has not yet consolidated into something like ‘a community of solidarity’ sharing jointly the burdens caused by episodes of political upheaval and violence, and it is doubtful that it ever will.77

40  But even if we were to admit the existence of an ‘international’ right to reparation, its actual realization in contexts of mass violations will prove a daunting, if not impossible, task. In such contexts, the capacity of transitional governments to provide anything approaching ‘full’ and ‘prompt’ reparation will be severely tested by the overwhelming number of claims and other ‘factual’ obstacles (lack of resources, institutional decay, etc). Moreover, claims for ‘reparation’ will tend to conflict with other, perhaps equally weighty, considerations, including claims for a more just distribution of social goods.78 Lastly, and more fundamentally, it is difficult to see what ‘reparation’ might possibly mean, and how it might be achieved, in the face of evils so outrageous in scope and nature as to defy computation and comprehension.79

41  The ambivalence at work here is, in a sense, unsurprising. As has been argued, law may aptly be thought of as a mediation between the ideal and the real, between what should be and what is actually done.80 However, while built into law, this gap between declaring a norm and realizing it is further exacerbated in the aftermath of mass atrocity. Nowhere more than here does the concrete implementation of an abstract political ideal or imperative depend on the particularity of each situation and require what Isaiah Berlin called ‘a sense of reality’.81 Now international law, apart from showing the general direction in which to proceed, has little guidance to offer in terms of how to realize—make ‘real’—the right to reparation in such extraordinary circumstances. As Richard Falk suggests, it therefore seems appropriate to view reparations arrangements in transitional contexts ‘as primarily an expression of moral and political forces in particular contexts’.82

42  This account, to be sure, will not satisfy those who believe that international law should play a more direct role in guiding reparations processes in the aftermath of large-scale human rights violations. It is not clear, however, what this role would be. After all, even those who advocate the existence of a right to reparation under current international law are ready to concede not only that such a right is surrounded by a ‘significant degree of discretion and flexibility’, but also that it can be subject to limitations, if ‘fair’ and ‘appropriate’.83

43  But if, as it appears, the discourse of a right to reparation is imbued with ambivalences and unfulfillable expectations, what is the point of holding on to it? Why should the idea of a right to reparation, as codified in Principle 31, matter in contexts of collective evildoing and political transformation? It matters primarily, it seems, as a projection of (p. 348) what should be: as a standard, an ideal, towards which to aspire and against which to critically judge given transitional policies. At the same time, however, Principle 31 serves as a critical reminder of what is inevitably lost after mass atrocity. The uncomfortable truth about radical political evil is that it is irreparable: no response can ever undo the harm done, make the victims ‘whole’, or bring back what was lost. The slate cannot be wiped clean. To suggest otherwise is not only excessively naive; it is deeply offensive to those at the receiving end of such evils.84 And yet the call for a right to reparation seems nowhere more necessary than in a political landscape transfigured by atrocity.

44  Here, somewhat paradoxically, one might end up saying—borrowing from Martti Koskenniemi—that the right to reparation is ‘both necessary and impossible’.85

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  • Sandoval, C, ‘The Concept of “Injured Party” and “Victim” of Gross Human Rights Violations in the Jurisprudence of the Inter-American Court of Human Rights: A Commentary on their Implications for Reparations’ in C Ferstman, M Goetz, and A Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff 2009) 243–82.
  • Schwager, E, ‘Reparation for individual victims of armed conflict’ in R Kolb and G Gaggioli (eds), Research Handbook on Human Rights and Humanitarian Law (Edward Elgar 2013) 628–59.
  • Shelton, D, Remedies in International Human Rights Law (3rd edn, OUP 2015).
  • Tomuschat, C, Human Rights: Between Idealism and Realism (3rd edn, OUP 2014) ch 13.
  • Walker, MU, Moral Repair: Reconstructing Relations after Wrongdoing (CUP 2006).

Footnotes:

1  On the recent spread of reparations politics, see J Torpey, Making Whole What Has Been Smashed: On Reparations Politics (Harvard University Press 2006); R Ludi, Reparations for Nazi Victims in Post-War Europe (CUP 2014).

2  Rome Statute of the International Criminal Court (17 July 1998) (entry into force 1 July 2002) 2187 UNTS 90 (hereinafter ‘Rome Statute’).

3  UN Doc A/RES/60/147 (16 December 2005) Annexe (hereinafter ‘Basic Principles on Reparation’).

4  PCIJ, Factory at Chorzów (Judgment of 26 July 1927) (1927) PCIJ Series A no 9, 21.

5  See Articles on the Responsibility of States for Internationally Wrongful Acts (hereinafter ‘ARSIWA’) 2001/II(2) International Law Commission Yearbook, Art 31(1).

6  See J Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentary (CUP 2002) 199.

7  See, respectively, Question of the impunity of perpetrators of human rights violations (civil and political), Revised final report prepared by Mr Joinet pursuant to Sub-Commission decision 1996/119, UN Doc E/CN.4/Sub. 2/1997/20/Rev. 1 (2 October 1997) (hereinafter ‘Joinet Report’); Report of the independent expert to update the Set of Principles to combat Impunity, Diane Orentlicher, UN Doc E/CN.4/2005/102 (18 February 2005) (hereinafter ‘Orentlicher Report’).

8  For an influential modern analysis, see WN Hohfeld, ‘Fundamental Legal Conceptions as Applied in Legal Reasoning’ (1917) 26:8 The Yale Law Journal 710–70.

9  On the relationship between rights and recognition, see A Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts (MIT Press 1995) 92–130. See also F Haldemann, ‘Another Kind of Justice: Transitional Justice as Recognition’ (2008) 41:3 Cornell International Law Journal 675–737.

10  J Feinberg, Social Philosophy (Prentice-Hall, Inc 1973) 58.

11  On moral dimension of repairing wrongdoing, see MU Walker, Moral Repair: Reconstructing Relations after Wrongdoing (CUP 2006).

12  UN Commission on Human Rights Res 2004/72: Impunity, UN Doc E/CN.4/RES/2004/72 (21 April 2004) para 20.

13  For a more extensive analysis, see in particular D Shelton, Remedies in International Human Rights Law (3rd edn, OUP 2015).

14  International Covenant on Civil and Political Rights (ICCPR) (adopted December 16 1966, entered into force March 23 1976) 999 UNTS 171.

15  See, eg, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (opened for signature 10 December 1984, entered into force 26 June 1986) 1465 UNTS 85, Art 14(1); International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) (adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3, Art 24(4) and (5).

16  European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (signed 4 November 1950, entered into force 3 September 1953) 213 UNTS 221, ETS 5.

17  American Convention on Hman Rights (ACHR) (opened for signature 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123.

18  See, eg, Art 2(3a) ICCPR, which states that ‘any person whose rights or freedoms as herein recognised are violated shall have effective remedy’.

19  See H Rombouts, P Sardaro, and S Vandenginste, ‘The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights’ in K de Feyter et al (eds), Out of the Ashes: Reparations for Victims of Gross and Systematic Human Rights Violations (Intersentia 2005) 345–503, 367–69.

20  Illustrative of this trend is the practice of the Human Rights Committee (HRC). See, eg, HRC, II Khwildy v Libya, case 1804/2008 (1 November 2012) para 9. For a critical assessment of this practice, see C Tomuschat, Human Rights: Between Idealism and Realism (3rd edn, OUP 2014) 404 (speaking of a ‘flawed literal construction’ of Art 2(3) ICCPR).

21  See Art 2(3) ICCPR; Art 1(1) ACHR; Art 1 ECHR.

22  See HRC, General Comment no 31 [80], The Nature of the General Legal Obligations Imposed on State Parties to the Covenant (29 March 2004), CCPR/C/21/Rev.1/Add.13, para 15; Velásquez Rodríguez v Honduras (Judgment) IACtHR Series C no 4 (29 July 1988) para 176; Basic Principles on Reparation, n 3, Principle 3(d).

23  See, eg, A Gattini, ‘Reparations to Victims’ in A Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 487–89, 487.

24  For an argument in support of an ‘emerging customary right to reparation’, see, eg, C Evans, The Right to Reparation in International Law for Victims of Armed Conflict (CUP 2012) 39–42 (with further references). Contra: Tomuschat, n 20, 415.

25  ARSIWA, n 5. See, eg, E Schwager, ‘Reparation for individual victims of armed conflict’ in R Kolb and G Gaggioli (eds), Research Handbook on Human Rights and Humanitarian Law (Edward Elgar 2013) 628–59, 634–37. On the relevant practice of the IACtHR, see para 30 of this commentary.

26  See A Nollkaemper, National Courts and the international Rule of Law (OUP 2011) 184; Tomuschat, n 20, 416.

27  See R Higgins, Problems & Process: International Law and How We Use It (OUP 1994) 96.

28  See Vienna Declaration and Programme of Action (25 June 1993) (1993) 32 ILM 1663.

29  See T Govier, Victims and Victimhood (Broadview Press 2015) 30–31 (stressing the term’s connotation of passivity and vulnerability).

30  C Sandoval, ‘The Concept of “Injured Party” and “Victim” of Gross Human Rights Violations in the Jurisprudence of the Inter-American Court of Human Rights: A Commentary on their Implications for Reparations’ in C Ferstman, M Goetz and A Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff 2009) 243–82, 249.

31  Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc A/RES/40/34 (29 November 1985) Annex, paras 1 and 2. For a similar definition, see Basic Principles on Reparation, n 3, Principle 8.

32  See Shelton, n 13, at 55–58 (noting the lack of order and precision in the area of international legal obligations on corporations and other businesses).

33  See J Sarkin, ‘Reparations for Gross Human Rights Violations as an Outcome of Criminal Versus Civil Court Proceedings’ in K De Feyter et al (eds), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Intersentia 2005) 151–88.

34  Alien Tort Statute, 28 USC § 1350.

35  For an in-depth study of the ICC’s regime of reparations and victim support, see C McCarthy, Reparations and Victim Support in the International Criminal Court (CUP 2012).

36  This role of the Trust Fund is laid down the Fund’s Regulations, especially Rule 98(5).

37  On this issue, see JE Malamud-Goti and LS Grosman, ‘Reparations and Civil Litigation: Compensation for Human Rights Violations in Transitional Democracies’ in P de Greiff (ed), The Handbook of Reparations (OUP 2006) 539–59.

38  HRC, General Comment no 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13 (26 May 2004) at para 16.

39  See Tomuschat, n 20, 404 (speaking of a ‘flawed literal construction’).

40  Committee against Torture, General Comment no 3, Implementation of Article 14 by State Parties, CAT/C/GC/3 (19 November 2012) para 2.

41  See, eg, Golder v United Kingdom App no 4451/70 (Judgment) (ECtHR, 21 February 1975) para 46.

42  See, eg, Selmouni v France App no 25803/94 (Judgment) (ECtHR, 28 July 1999) para 123; Scordino v Italy (No 1) App no 36813/97 (Judgment) (ECtHR, 29 March 2006) paras 267–73; Oyal v Turkey App no 4864/05 (ECtHR, 23 March 2010) paras 98–107; Cyprus v Turkey App no 25781/94 (Judgment) (ECtHR, 12 May 2014) para 58.

43  Salah v the Netherlands App no 8196/02 (Judgment) (ECtHR, 6 July 2006) para 70.

44  For a recent critique along these lines, see, eg, O Ichim, Just Satisfaction under the European Convention on Human Rights (CUP 2015). See also Tomuschat, n 20, 408.

45  For a useful overview of the Court’s remedial jurisprudence, see TM Antkowiak, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’ (2008) 46 Columbia Journal of Transnational Law 351–419.

46  Velásquez Rodríguez v Honduras (Reparations and Costs) IACtHR Series C no 7 (21 July 1989) para 25 (citing PCIJ, Factory at Chorzów, n 4, 29).

47  See, eg, Mendoza et al v Argentina (Judgment) (Preliminary objections, merits, and reparations) IACtHR Series C no 247 (14 May 2013) para 307; Gonzales Lluy et al v Ecuador (Judgment) (Preliminary objections, merits, reparations, and costs) IACtHR Series C no 298 (1 September 2015) para 342.

48  Afro-Descendant Communities Displaced from the Carica River Bassin (Operation Genesis) v Colombia, (Judgment) (Preliminary objections, merits, reparations and costs), IACtHR Series C no 270 (20 November 2013) para 470.

49  For a careful analysis of the Court’s relevant jurisprudence, see Sandoval, n 30.

50  See, eg, Trujillo Oraza v Bolivia (Reparations and Costs) IACtHR Series C no 92 (27 February 2002) paras 54–57.

51  See, eg, Juan Humberto Sanchez v Honduras (Preliminary Objections, Merits, Reparations and Costs) IACtHR Series C no 99 (7 June 2003) paras 173–75.

52  Protocol no 14 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, ETS 194, Art 12 (establishing the requirement of a ‘significant disadvantage’ as an additional admissibility condition). See Ichim, n 44, 70–72.

53  Çakici v Turkey App no 23657/94 (Judgment) (ECtHR, 8 July 1999) para 98. See also Janowiec and Others v Russia App nos 55508/07 and 29520/09 (Judgment) (ECtHR, 21 October 2013) paras 177–78 (mentioning factors such as the proximity of the family tie and the dismissive response of authorities).

54  Committee against Torture, n 40, para 3.

55  Human Rights Committee, Communication no 107/198 (17 September 1981) para 14.

56  ICC,Trial Chamber I, Lubanga (Decision establishing the principles and procedures to be applied to reparations) ICC-01/04-01/06 (7 August 2012).

57  ICC Appeals Chamber, Lubanga (Order for Reparations) ICC-01/04-01/06 A A 2 A 3 (3 March 2015) para 105. For a detailed analysis, see C Stahn, ‘Reparative Justice after the Lubanga Appeals Judgement’ (2015) 13:4 Journal of International Criminal Justice 1–13.

58  ICC Appeals Chamber, Lubanga, n 57, para 65 (original emphasis).

59  Stahn, n 57, 6.

60  Filártiga v Peña-Irala, 630 F 2d 876 (2d Cir 1980).

61  On the development and history of ATS litigation, see B Stephens, ‘The Curious History of the Alien Tort Statute’ (2014) 89:4 Notre Dame Law Review 1467–1543.

62  See, eg, Khulumani v Barclay National Bank Ltd, 509 F 3d 148 (2nd Cir 2007); Abdullahi v Pfizer, Inc, 562 F 3d 163 (2nd Cir 2009).

63  Kiobel v Royal Dutch Petroleum Co, 133 S Ct 1659 (2013).

64  See respectively, Editorial Board, ‘A Giant Setback for Human Rights’ New York Times (18 April 2013) A26; S Moyn, ‘Why the Court Was Right About the Tort Claim Statute’ Foreign Affairs (2 May 2013).

65  See Justice Sourter in Ortiz v Fibreboard Corp, 527 US 818 (1999), 846.

66  P de Greiff, ‘Justice and Reparations’ in de Greiff (ed), n 37, 451–77, 458.

67  See, eg, Broniowski v Poland App no 31443/96 (Judgment) (ECtHR, 22 June 2004); Broniowski v Poland App no 31443/96 (Judgment) (ECtHR, 28 September 2005); Hutten-Czapska v Poland App no 35014/97 (Judgment) (ECtHR, 19 June 2006); Maria Atanasiu and others v Romania App nos 30767/05 and 33800/06 (Judgment) (ECtHR, 12 October 2010).

68  See Rule 61 of the Court’s Rules as of 14 November 2016. See generally A Buyse, ‘The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges’ (2009) 57 Nomiko Vima [The Greek Law Journal] 78–90.

69  See generally L Oette, ‘Bringing Justice to Victims? Responses of Regional and International Human Rights Courts and Treaty Bodies to Mass Violations’ in C Ferstman, M Goetz, and A Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff 2009) 217–42.

70  For a general statement of this approach, see Blake v Guatemala (Judgment) (Merits) IACtHR Series C no 36 (24 January 1998) para 49.

71  An example is Massacre v Colombia (Judgment) (Merits, Reparations and Costs) IACtHR Series C no 163 (11 May 2007) para 273.

72  See, eg, Plan de Sánchez Massacre v Guatemala (Judgment) (Reparations) IACtHR Series C no 116 (19 November 2004) paras 86 and 101.

73  Tomuschat, n 20, 419.

74  R Falk, ‘Reparations, International Law, and Global Justice: A New Frontier’ in de Greiff (ed), n 37, 478–503, 485 and 490–91.

75  See R Geuss, Philosophy and Real Politics (Princeton University Press 2008) 62.

76  For such argument, see Schwager, n 25, 629, citing in support the ruling of the ICJ in La Grande (Germany v United States) [2001] ICJ Rep 466, 494, para 77.

77  Tomuschat, n 20, 400.

78  A good illustration of such tensions is provided by the South African Constitutional Court’s decision in Richtersveld Community and Others v Alexkor Ltd and Another 2001 (3) SA 1293 (LCC). For a helpful analysis, see J Webber, ‘Forms of Transitional Justice’, in MS Williams, R Nagy and J Elster (eds), Transitional Justice: Nomos LI (New York University Press 2012) 98–128, 106–08.

79  See M Minow, Between Vengeance and Forgiveness (Beacon Press 1999) especially 104.

80  See P Gewirtz, ‘Remedies and Resistance’ (1983) 92:4 The Yale Law Journal 587–681, 587.

81  See I Berlin, The Sense of Reality: Studies in Ideas and Their History (Farrar, Straus and Giroux 1996).

82  Falk, n 74, 485 (emphasis in the original).

83  See Rombouts, Sardaro, and Vendegiste, n 19, 452–53.

84  See Minow, n 79, 93.

85  M Koskenniemi, The Politics of International Law (Hart Publishing 2011) 153.