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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 34 Scope of the Right to Reparation

Lucas S Grosman

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 remedies — Immunity from jurisdiction — International criminal law, victims — Compensation — Reparations — Restitution — Truth and Reconciliation Commissions

(p. 369) Principle 34.  Scope of the Right to Reparation

The right to reparation shall cover all injuries suffered by victims; it shall include measures of restitution, compensation, rehabilitation, and satisfaction as provided by international law.

In the case of forced disappearance, the family of the direct victim has an imprescriptible right to be informed of the fate and/or whereabouts of the disappeared person and, in the event of decease, that person’s body must be returned to the family as soon as it has been identified, regardless of whether the perpetrators have been identified or prosecuted.

A.  Summary of Findings

The right to reparation includes restitution, compensation, rehabilitation, and satisfaction. To understand what each of such measures entails, reference to the UN Reparation Principles is crucial. Furthermore, there is robust state practice providing examples of how such measures have been implemented, despite the difficulties encountered in transitional situations. This practice and the opinion of experts reaffirm the idea that the right to reparation must be analysed realistically and with flexibility to adapt to particular contexts, and highlight the importance of conceiving of reparations as part of a comprehensive programme, rather than as a collection of isolated measures.

In addition, Principle 34, second paragraph, spells out the content of certain rights owed to families of victims of forced disappearance: first, the right to be informed of the fate or whereabouts of the disappeared; and, second, the right to obtain the body of the victim, once it has been identified. These rights have a substantial as well as a remedial dimension, and therefore contribute to the reparation of the harm.

B.  Contextual and Historical Introduction

Reparation efforts have become a central aspect of the fight against impunity as a means of restoring the victims’ dignity and their sense of belonging to the community as full members. Accordingly, the section on reparations occupies a central place in the Impunity Principles, although there is a separate and contemporaneous United Nations (UN) document specifically devoted to this topic, 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.2

(p. 370) The state’s obligation to provide reparation for violations of international law is now firmly established. It can be traced back to a famous dictum by the Permanent Court of International Justice (PCIJ) in the Chorzów Factory case,3 and figures prominently in a number of international and regional human rights treaties. Furthermore, the obligation to provide adequate reparation in cases of human rights violation is generally considered part of customary law,4 and has been recognized by the International Court of Justice (ICJ) as well.5 Widespread use of reparations programmes, UN documents such as the Reparation Principles, and the decisions of regional human rights courts, which will be discussed throughout this commentary, speak to the emergence of such customary rule. The Impunity Principles must be analysed as a decisive step along that road.

However, and despite the fact that individuals are now considered subjects of international law, the extent to which the state’s obligation to provide adequate reparation gives rise to a universal individual right to obtain it is still the subject of debate.6 Furthermore, it has been argued that, even when such right is expressly granted, its content might be limited to a procedural right to access courts.7 There is certainly a gap between aspirations to full reparation as reflected in international documents, on the one hand, and practice, on the other.

C.  Theoretical Framework

I.  The right to reparation

Principle 34 establishes that reparation should include measures of restitution, compensation, rehabilitation, and satisfaction. In order to determine what each of such measures entails, the Impunity Principles should be read in conjunction with the Reparation Principles, adopted and proclaimed by General Assembly Resolution 60/147 of 16 December 2005. Although the former have not yet been adopted by the UN while the latter have, both sets of principles have been understood as complementary.8 In fact, the independent expert Diane Orentlichter makes several references to the Reparation Principles when she discusses articles of the Updated Principles on reparations.9 Moreover, human rights tribunals, especially the Inter-American Court of Human Rights (IACtHR), have often used the Reparation Principles as a reference.10 It is therefore quite (p. 371) pertinent to turn to those Principles to understand the content of each measure of reparation included in Principle 34 of the Impunity Principles.

i.  Restitution

According to the Reparation Principles:

Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: 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.11

The Reparation Principles thus place returning the victim to the statu quo ante as the primary goal. This is in line with the statement of the PCIJ in the Chorzów Factory case that, if restitution is not possible, compensation is owed.12

Restitution is an aspiration that can rarely be fulfilled in cases of gross human rights violations, given the nature of the loss involved. However, there are certain deprivations that can, indeed, be addressed through restitution. Thus, while the harm caused by illegal imprisonment cannot be undone, restitution of liberty—that is, release of persons illegally detained—can stop the harm and is, therefore, of the utmost importance. In the face of on-going violations of human rights, restitution of such rights means that violations should cease.13 To that extent, restitution of rights overlaps with other measures of reparation.14

The Reparation Principles refer explicitly to the right to restitution of employment. If persons have been dismissed from their jobs or public positions because of their ideology, this right means that they should be re-employed. This can be seen as a complement of ‘vetting’, a formal procedure for the identification and removal of individuals responsible for abuses, especially from the police, prison services, the army, and the judiciary.15 Restitution of identity, in turn, is particularly relevant in the context of appropriation of children born in captivity.16

ii.  Compensation

Compensation is a central aspect of reparations efforts, to the point that reparation and compensation are frequently treated as synonymous. In the Impunity Principles and Reparation Principles, however, reparation is the gender and compensation the species.

10  According to the Reparation Principles, ‘[c]ompensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case’.17 Compensation is a form of material (p. 372) reparation. Since nothing can truly erase the effects of severe human rights violations, it is an open question what amount of money is appropriate.

11  The language of the Reparation Principles suggests that such determination should take into account the specificities of the situation of each particular victim. However, reparation programmes actually implemented in the context of transitional democracies and mass violations often have not focused on the individual dimension of the harm and the specificities of particular situations, but rather on their common or collective features. Pablo de Greiff, UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, argues that ‘the proper metric for assessing the size of the compensation owed in fairness to the victims stems directly from the very violation of rights held in common by human beings and particularly by citizens, and not from each individual’s particular position prior to the violation’.18 He understands that the phrase ‘circumstances of each case’, used in Article 18 of the Reparation Principles, ‘provides room for departures from the criterion of full compensation’.19 Professors van Boven and Letschert also understand this language as an invitation to determine the amount and mode (collective or individual) of compensation with certain latitude.20

12  Thus, authorities on the matter accept, or even advocate for, general compensation programmes in which differences among victims are not necessarily taken into account. This is consistent both with programmes that provide compensation to individual victims without making distinctions among them except at the most basic level through very broad categories and with programmes that provide compensation to victims collectively. This more flexible approach, which is sensitive to the structural scarcity of resources typical of transitional situations in the aftermath of mass atrocity, and therefore to the inevitable constraints reparations face in practice, may seem in tension with the more ambitious aspiration conveyed by the language of the Reparation Principles.

13  These two alternative approaches, in turn, relate to the mechanism chosen to implement compensation programmes. Thus, a basic distinction can be drawn between judicial and administrative approaches to compensation. Judicial approaches tend to account for differences among individuals, whereas administrative programmes do not. Moreover, some administrative programmes entail judicial closure and are therefore final, whereas others leave open the possibility of opting out of the administrative scheme and resorting to judicial compensation.21

14  This potential tension between the ambitious language of the Reparation Principles and the more flexible approach that, as will be discussed, tends to be followed in practice, will be critically assessed in section E of this commentary.

(p. 373) iii.  Rehabilitation and satisfaction

15  The Reparation Principles state that rehabilitation should include medical and psychological care, as well as legal and social services.22 The goal of reinserting the victim as a full member of society appears most clearly in this component of reparation. Accordingly, ‘restoring the good name of the victim’ has been considered a form of rehabilitation.23

16  Provision of medical and related services is crucial in these contexts. It has been shown that victims of human rights abuse seem more prone to disease, and therefore such services are an effective means of improving their quality of life.24

17  In turn, in the case of satisfaction, diverse measures are enumerated, including the cessation of continuing violations, disclosure of truth, recovery of bodies, an official declaration to restore dignity, public apology, sanctions to perpetrators, commemorations, and inclusion of an account of the violations in educational material.25

18  In its original formulation, current Principle 34 referred to measures of rehabilitation (as well as restitution and compensation) as individual, whereas measures of satisfaction were preceded by the adjective general. Both qualifications have been deleted in the revised version. This revision expresses the belief that all four measures could, in principle, be understood from both an individual and a collective perspective. This approach is more flexible, and therefore can better accommodate the requirements of different transitional situations.

II.  Right to know and to recover mortal remains in cases of forced disappearance

19  Principle 34, second paragraph, establishes rights owed to families of victims of forced disappearance: first, the right to be informed of the fate or whereabouts of the disappeared; second, the right to obtain the body of the victim, once it has been identified. This is in line with the International Convention against Enforced Disappearance.26

20  In her report, the independent expert Diane Orentlicher emphasizes that these rights are unqualified, hence her decision to eliminate the provision establishing that the rights become operative ‘when the fate of the disappeared person has become known’. She also explains why these rights are included as part of the right to reparation: there is not only a substantial but also a remedial dimension to the right to know. Therefore, knowing the fate of the disappeared persons, as well as having a chance to bury their bodies, contributes to the reparation of the harm.

D.  Practice

I.  Restitution

i.  Rights

21  To the extent that restitution of a right means stopping its ongoing violation, instances of this practice are widespread. Just to mention a couple of examples, the African Commission on Human and Peoples’ Rights (AComHPR), in Article 19 v Eritrea, urged (p. 374) the state of Eritrea ‘to release or to bring to a speedy and fair trial the 18 journalists detained since September 2001, and to lift the ban on the press’.27 The IACtHR, in turn, in Lori Berenson Mejía v Peru, ordered, inter alia, the improvement of prison conditions in the Yanamayo Prison to meet international standards, and the transfer of inmates whose personal circumstances so required.28

ii.  Assets

22  Although German reparation efforts are best known for their compensation aspect, restitution of assets has played a role as well.29 Since 1947, laws mandating restitution of goods illegally taken by the Nazi regime to their original owners or their successors were passed in the three Allied Occupation zones. On the basis of such laws, the Federal Restitution Law of 1957 was passed in order to restore or replace identifiable items seized by the Nazis.30

iii.  Children

23  In Argentina, between 1976 and 1982, many children were born in captivity from mothers illegally detained, tortured, and eventually murdered by the military government. Several of those children were, soon after birth, adopted by members of the military and security forces or families related to them. Since their family name was changed and they were never told who their biological parents were, they were denied their true identity.31 ‘Restitution of identity’, in these cases, entails making such information available to them; ‘restitution of family life’, in turn, entails the right to meet what remains of their original family.32 The Argentine state and civil society took concrete steps to facilitate this form of restitution33 and, to date, 125 children (now adults) have recovered their identities.34

iv.  Employment

24  Instances of restitution of employment ordered by the IACtHR as a form of reparation can be found in Baena v Panama35 and in Loayza-Tamayo v Peru, in which the state was enjoined to reinstate 270 workers.36

(p. 375) II.  Compensation

25  Human rights courts and commissions around the world often establish the obligation to compensate in response to human rights violations. For example, the AComHPR, in Article 19 v Eritrea, ‘[r]ecommends that the government of Eritrea takes appropriate measures to ensure payment of compensation to the detainees’.37 However, it has been observed that the efficacy of the African system in bringing justice to the victims is to be doubted, given the lack of state implementation of the Commission’s rulings.38

26  In several cases, the European Court of Human Rights (ECtHR) has construed the obligation to provide ‘just satisfaction’ established in Article 41 of the European Convention of Human Rights as covering pecuniary compensation. That was the case, for example, in Ribitsch v Austria,39 Mikheyev v Russia,40 and Aksoy v Turkey.41

27  In cases of mass violations, state practice has favoured administrative approaches, and generally compensation has been provided to individual victims by establishing broad categories, rather than by identifying the specific harm suffered by each individual. As the examples following illustrate, the amounts paid in each country vary significantly, and it is difficult to attribute such differences to the seriousness of the violation or the wealth of the country, although the influence of the latter factor and of the political context is undeniable.

28  In South Africa, a single payment of less than $4,00042 was made to victims of apartheid, although the Truth and Reconciliation Commission had suggested a larger sum. In the US, Japanese Americans whose rights were violated during the Second World War received $20,000. In Brazil, a minimum of $100,000 was paid as compensation for the violations perpetrated by the military dictatorship. In Argentina, the amount paid in each case was of $224,000. In Chile, victims received a monthly pension of $537.43

29  After the first Gulf War, the UN Compensation Commission processed more than 2.5 million claims, paying out more than $18 billion to victims of Iraq’s unlawful invasion and occupation of Kuwait.44 Transnational mass claims processes such as this one possess features of their own, which, it has been argued, distinguish them from transitional justice claims processes.45

30  In some cases compensation has been granted collectively to groups or nations. Thus, Germany’s reparation programme benefited both individual victims of the Holocaust and the State of Israel.46 In turn, the IACtHR, in Aloeboetoe,47 ordered the opening and staffing of a school and a hospital, which can be considered a form of collective compensation. (p. 376) Similarly, in Comunidad Mayagna,48 it decided that the state had to invest $50,000 in facilities and services for the benefit of the victimized community.

31  As already mentioned, it is beyond dispute that state practice regarding compensation, especially in the face of mass violations, falls short of the aspiration to full compensation enshrined in international conventions and other documents.

III.  Rehabilitation

32  Medical services, including psychiatric and psychological treatment, have been included as part of reparation programmes in Chile, Peru, and Morocco.49 Furthermore, the case law of the IACtHR is rich in examples of measures of rehabilitation.50 For example, in Cepeda Vargas51 and Barrios Altos,52 free provision of psychological treatment was ordered as a form of reparation that can be regarded as rehabilitation. In Cepeda Vargas, it was considered that psychological treatment could be individual or collective, depending on the victims’ needs.53 Similar considerations can be found in 19 Merchants;54 ‘Las Dos Erres’ Massacre;55 and Kawas Fernández.56

33  The Commission of Human Rights, in its 2004 Resolution on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,57 encouraged the development of rehabilitation centers for victims of torture. The UN Special Rapporteur on Torture Manfred Nowak, in his report to the General Assembly in August 2010, argued that the Convention against Torture58 demands that torture rehabilitation centers are established and that such centers must provide holistic treatment for survivors.59

IV.  Satisfaction

34  In several cases, the IACtHR has also enjoined states to provide forms of reparation that qualify as satisfaction. Thus, in Molina Theissen,60 it ordered the state to search for the bodies, investigate, publicly report the decision and acknowledge responsibility, and name a school, making reference to the disappeared children; in Benavides Ceballos,61 the (p. 377) Court ordered Ecuador to proceed with the investigation of the human rights violations; in Trujillo Oroza62 and Barrios Altos,63 it ordered certain conduct to be criminalized. In Loayza-Tamayo,64 Peru was enjoined to adapt its domestic laws to abide by the American Convention on Human Rights. In Girls Yean,65 the IACtHR ordered the Dominican Republic to issue a public apology as a form of satisfaction; the same order was issued against Peru in Castro-Castro Prison.66

35  In El Masri v Former Yugoslav Republic of Macedonia,67 the ECtHR recognized the right to access concrete information about gross violations of human rights, which can be regarded a form of satisfaction under Principle 22(b) of the Reparation Principles.

V.  Mortal remains

36  The case law of the IACtHR provides examples of enforcement of rights included in the second paragraph of Principle 34. In Juan Humberto Sanchez,68 the Court ordered the state to search for the bodies of persons illegally killed, as it did in Molina Thiessen. In Trujillo-Oroza, the Court ordered the state to devote all available means to locating the body of the victim and delivering it to the family for adequate burial.69

E.  Critical Assessment

37  In the preceding sections, different elements of the right to reparation were analysed separately; it is important, however, to emphasize the interconnection that exists between them, and the importance of understanding and presenting them as part of a comprehensive programme rather than in isolation. No single element may seem sufficient or adequate on its own, but all or several of them together may allow a state to approach as much as possible to the demands of justice in transitional contexts.70

38  Interdependence affects the way in which each measure of reparation may be read, whether by the victims or by other relevant actors.71 Thus, for example, if compensation to the victims is not part of a more general reparations programme that includes criminal prosecutions and truth-telling, it could be ‘counterproductive and be perceived more like a payment in exchange for the silence or acquiescence of victims and their families’.72

(p. 378) 39  Comprehensiveness may therefore be more important than munificence, which should lead us to re-evaluate the extent to which the ideal of full compensation should be reflected in international law. As noted, there is a gap between legal standards regarding compensation and practical application. This gap has, according to Special Rapporteur de Greiff, reached ‘scandalous proportions’.73 As was mentioned, de Greiff and other authorities on the matter advocate for a more flexible approach to compensation, and emphasize its collective dimension. Principle 18 of the Reparation Principles, however, urges account to be taken of individual circumstances and the provision of full reparation, with a focus on what has been labelled ‘Reparation as right’.74 To that extent, the Reparation Principles do not accommodate this more flexible approach easily.75

40  Adjusting legal standards to what is feasible in transitional contexts seems desirable, since creating the impression that reparation efforts systematically fall short of legal demands may only compound the victims’ suffering and hamper the effort to restore their dignity. To that extent, it might be advisable to emphasize the need of a holistic approach, and to explicitly acknowledge that sufficiently comprehensive reparation programmes may meet the demands of justice even when full and individual compensation is not provided.

Bibliography

  • Antkowiak, T, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’ (2008) 46(2) Columbia Journal of Transnational Law 351–419.
  • Bassiouni, C, ‘International Recognition of Victims’ Rights’ (2006) 6(2) Human Rights Law Review 203–79.
  • Buyse, A, ‘Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law’ (2008) 68 Heidelberg Journal of International Law 129–53.
  • Carrillo, A, and Palmer, J, ‘Transnational Mass Claim Processes (TMCPs) in International Law and Practice’ (2010) 28 Berkeley Journal of International Law 343–430.
  • David, R, and Choi, SYP, ‘Victims on Transitional Justice: Lessons from the Reparation of Human Rights Abuses in the Czech Republic’ (2005) 27(2) Human Rights Quarterly 392–435.
  • de Greiff, P (ed), The Handbook of Reparations (OUP 2006).
  • Droege, C, The Right to a Remedy and to Reparation for Gross Human Rights Violations—A Practitioners’ Guide (International Commission of Jurists 2006) 96.
  • Evans, C, The right to reparation in international law for victims of armed conflict (CUP 2012).
  • Letschert, RM and van Boven, T, ‘Providing reparation in situations of mass victimization. Key challenges involved’ in RM Letschert, R Haveman, A De Brouwer, and A Pemberton (eds), Victimological Approaches to International Crimes (Intersentia 2011) 153–84.
  • Rombouts, H, Victim Organisations and the Politics of Reparation: A Case-study on Rwanda (Intersentia 2004).
  • (p. 379) Rombouts, H, et al, ‘The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights’ in K Feyter et al (eds), Out of the Ashes (Intersentia 2005) 345–502.
  • Shelton, D, Remedies in International Human Rights Law (2nd edn, OUP 2006).
  • Tomuschat, C, ‘Darfur—Compensation for the Victims’ (2005) 3(3) Journal of International Criminal Justice 579–89.
  • Van Boven, T, ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’ 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 Online 2009).
  • Van Boven, T, The 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 International Humanitarian Law (United Nations Audiovisual Library of International Law 2010) <legal.un.org/avl/ha/ga_60-147/ga_60-147.html> accessed 22 November 2017.(p. 380)

Footnotes:

1  The author would like to thank Catalina Fuentes Benitez and Juan Agustín Otero for their excellent research assistance.

2  UN General Assembly, 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: resolution adopted by the General Assembly, UN Doc A/RES/60/147 (21 March 2006) (hereinafter ‘Reperation Principles’) <www.refworld.org/docid/4721cb942.html> accessed 28 April 2016.

3  PCIJ, Factory at Chorzów (Germany v Poland) (Jurisdiction) (1927) Series A no 17, 67, 80, 86, 99, 121.

4  See D Shelton, Remedies in International Human Rights Law (2nd edn, OUP 2006) 238; C Bassiouni, ‘International Recognition of Victims’ Rights’ (2006) 6(2) Human Rights Law Review 203–79, 217.

5  See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Judgment) [2005] ICJ Rep 168; and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136.

6  See H Rombouts, Victim Organisations and the Politics of Reparation: A Case-study on Rwanda (Intersentia 2004) 19; see also H Rombouts et al, ‘The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights’ in K Feyter et al (eds), Out of the Ashes (Intersentia 2005) 345–502.

7  See Rombouts, Victim Organisations, n 6, 19–20.

8  See T van Boven, ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’ 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 Online 2009) 19–40, 37.

9  See Report of the independent expert to update the Set of Principles to combat impunity, UN Doc E/CN.4/2005/102 (18 February 2005) especially para 61, note 76, and note 88.

10  See, eg, cases discussed in section D, and van Boven, n 8, 5. Van Boven emphasizes that several Latin American countries based their reparation programmes on the Reparation Principles when designing those programmes, and that the Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9; (1998) 37 ILM 1002; 2187 UNTS 90 follows their wording in its Art 75.

11  Reparation Principles, n 2, Principle 19.

12  See Chorzów Factory, n 3, 67, 80, 86, 99, 121.

13  See A Buyse, ‘Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law’ (2008) 68 Heidelberg Journal of International Law 129–53, 132–38.

14  Thus, restitution may overlap with cessation, which, as will be explained, is part of satisfaction as a form of reparation. See C Droege, The Right to a Remedy and to Reparation for Gross Human Rights ViolationsA Practitioners’ Guide (International Commission of Jurists 2006) 96.

15  See UN, The rule of law and transitional justice in conflict and post-conflict societies. Report of the Secretary-General, UN Doc S/2004/616 (23 August 2004) para 52.

16  The UN General Assembly has dealt specifically with this issue in its Declaration on the Protection of All Persons from Enforced Disappearance (Res GA 47/133) Art 20.

17  Reparation Principles, n 2, Principle 20.

18  Office of the United Nations High Commissioner for Human Rights (OHCHR), Rule-of-Law Tools for Post-Conflict States. Reparations Programmes (United Nations 2008) 30 (hereinafter ‘Rule-of-Law Tools’). Pablo de Greiff was primarily responsible for this document (see ‘Acknowledgements’, ibid, vi).

19  Ibid, 28.

20  RM Letschert and T van Boven, ‘Providing reparation in situations of mass victimization. Key challenges involved’ in RM Letschert, R Haveman, A De Brouwer, and A Pemberton (eds), Victimological Approaches to International Crimes (Intersentia 2011) 153–84.

21  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; and Rule-of-Law Tools, n 18, 35–36.

22  Reparation Principles, n 2, Principle 21.

23  See Rule-of-Law Tools, n 18, 22.

24  Ibid, 24.

25  Reparation Principles, n 2, Principle 22.

26  2716 UNTS 3. Adopted by GA Res 61/177 on 12 January 2007. See Arts 15, 17(3), 18.

27  AComHPR, Article 19 v Eritrea, Communication no 275/03 (30 May 2007).

28  Lori Berenson Mejía v Peru (Judgment on the Merits, Reparations and Costs) IACtHR Series C no 119 (25 November 2004) para 248.

29  See A Colonomos and A Armstrong, ‘German Reparations to the Jews after World War II: A Turning Point in the History of Reparations’ in de Greiff (ed), n 21, 390–419.

30  Ibid.

31  See MJ Guembe, ‘Economic Reparations for Grave Human Rights Violations; The Argentinean Experience’ in de Greiff (ed), n 21, ch 1, fn 92.

32  The Inter-American Commission of Human Rights recognized those rights in the case Reggiardo Tolosa v Argentina (Provisional Measures), Resolutions of 19 November 1993 and 19 January 1994. The Commission requested the IACtHR to rule on certain measures related to this right. However, the issue became moot, since the Argentine Government took satisfactory steps, as reflected by the Court in its 19 January 1994 decision on the matter.

33  Thus, Law 23511 of 1987 created the Bank of Genetic Data to facilitate the process of identification of biological ties. Organizations from civil society, especially the non-governmental organization Abuelas de Plaza de Mayo, played a crucial role.

34  The figure corresponds to November 2017.

35  Baena et al v Panama (Judgment) IACtHR Series C no 72 (2 February 2001).

36  Case of Loayza-Tamayo v Peru (Merits) (Judgment) IACtHR Series C no 33 (17 September 1997).

37  Article 19 v Eritrea, n 27, para 108.

38  See F Viljoen and L Louw, ‘State Compliance with the recommendations of the African Commission on Human and Peoples’ Rights, 1994–2004’ (2007) 101(1) American Journal of International Law 1–34.

39  Ribitsch v Austria (Judgment) (ECtHR, 4 December 1995).

40  Mikheyev v Russia (Judgment) (ECtHR, 26 January 2006).

41  Aksoy v Turkey (Judgment) (ECtHR, 26 November 1996).

42  All amounts are expressed in US dollars, unless otherwise indicated.

43  See Rule-of-Law Tools, n 18.

44  See UN Security Council, The rule of law and transitional justice in conflict and post-conflict societies, UN Doc S/2004/616 (23 August 2004) para 54.

45  For a discussion of similarities and differences between these two types of processes, see A Carrillo and J Palmer, ‘Transnational Mass Claim Processes (TMCPs) in International Law and Practice’ (2010) 28 Berkeley Journal of International Law 343–430.

46  It has been estimated that German reparations for different violations amount to approximately US$ 61.5 billion. See ‘German reparations’, Colonomos and Armstrong, n 29, 408.

47  Aloeboetoe et al v Suriname (Reparations and Costs) IACtHRSeries C No 15 (10 September 1993).

48  Comunidad Mayagna (Sumo) Awas Tingni v Nicaragua (Merits, Reparations and Costs) IACtHR Series C no 79 (31 August 2001).

49  See Rule-of-Law Tools, n 18, 24.

50  For a discussion of this Court’s ‘remedial’ approach, see T Antkowiak, ‘Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond’ (2008) 46(2) Columbia Journal of Transnational Law 351–419.

51  Manuel Cepeda Vargas v Colombia (Preliminary Objections, Merits, Reparations and Costs) (Judgment) IACtHR Series C no 213 (26 May 2010).

52  Case of Barrios Altos v Peru (Merits) (Judgment) IACtHR Series C No 75 (14 March 2001).

53  Manuel Cepeda Vargas v Colombia, n 51, para 235.

54  Case of the 19 Merchants v Colombia (Merits, Reparations and Costs) (Judgment) IACtHR Series C no 109 (5 July 2004).

55  Case of the ‘Las Dos Erres’ Massacre v Guatemala (Preliminary Objection, Merits, Reparations and Costs) (Judgment) IACtHR (4 November 2009).

56  Case of Kawas-Fernández v Honduras (Merits, Reparations and Costs) (Judgment) IACtHR (3 April 2009).

57  HRC/2004/41 (19 April 2004).

58  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85.

59  UN General Assembly, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/65/273 (10 August 2010).

60  Case of Molina-Theissen v Guatemala (Reparations and Costs) (Judgment) IACtHR Series C no 108 (3 July 2004).

61  Case of Benavides Cevallos v Ecuador (Merits, Reparations and Costs) (Judgment) IACtHR Series C no 38 (19 June 1998).

62  Case of Trujillo-Oroza v Bolivia (Reparations and Costs) (Judgment) IACtHR Series C no 92 (27 February 2002).

63  Case of Barrios Altos v Peru, n 52.

64  Case of Loayza-Tamayo v Peru, n 36.

65  Case of the Girls Yean and Bosico v The Dominican Republic (Preliminary Objections, Merits, Reparations and Costs) (Judgment) IACtHR Series C no 130 (8 September 2005).

66  Case of the Castro-Castro Prison v Peru (Merits, Reparations and Costs) (Judgment) IACtHR Series C no 160 (25 November 2006).

67  El Masri v Former Yugoslav Republic of Macedonia (Judgment) (ECtHR, 13 December 2012).

68  Case of Juan Humberto Sánchez v Honduras (Preliminary Objections, Merits, Reparations and Costs) (Judgment) IACtHR Series C no 102 (7 June 2003).

69  Case of Trujillo-Oroza v Bolivia, n 62, para 115.

70  See UN Security Council, The rule of law and transitional justice in conflict and post-conflict societies, UN Doc S/2004/616 (23 August 2004) para 55.

71  For empirical evidence on the importance of considering individual reparation as ‘an organic part of a broader policy of social reconstruction’, see R David and SYP Choi, ‘Victims on Transitional Justice: Lessons from the Reparation of Human Rights Abuses in the Czech Republic’ (2005) 27(2) Human Rights Quarterly 392–435.

72  Rule-of-Law Tools, n 18, 30. See also UN General Assembly, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, UN Doc A/HRC/21/46 (9 August 2012). As an illustration of these dynamics, compensation granted to victims of the military dictatorship in Argentina was regarded by many victims and their relatives with scepticism or hostility because, in spite of being a munificent reparation programme, it was implemented soon after a presidential pardon to the perpetrators, who had been convicted only a few years earlier for the most serious of crimes. See Malamud-Goti and Grosman, n 21, 552–53.

73  See UN General Assembly, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, UN Doc A/69/518 (8 October 2014), para 6.

74  See Letschert and van Boven, n 20, 160–61.

75  The argument according to which reference to the ‘circumstances of each case’, in the Reparation Principles, opens the door to this more flexible approach might not be quite persuasive; that language rather seems to emphasize the singularity of each victim.