The term reparations usually refers to the measures that a state must take after it violates a rule of international law. Reparations can also apply more generally to remedying all wrongs, whether committed by a state and its agents or by private parties. Reparations for genocide and crimes against humanity will usually require remedial action by both individual perpetrators and the state involved because such acts are illegal under international and national law. Human rights law and humanitarian law also impose a duty on states to take reasonable measures, or in legal terminology to "exercise due diligence," to prevent violations of human rights by private persons. If the state fails to do so, it will be responsible for providing reparations.

In an early international court case, the Permanent Court of International Justice called the obligation to make reparations for an unlawful act "a general principle of international law" and part of "a general conception of law" (Factory at Chorzów [Germany v. Poland], 1928 P.C.I.J. [ser. A], no. 17 at 29 [September 13]). This reflects the fact that all legal systems require those who cause harm through illegal or wrongful acts to take action to repair the harm they have caused.

In addition, human rights treaties and declarations adopted by the United Nations guarantee individual victims the right to a remedy, that is, access to justice and reparations in national proceedings. The Universal Declaration of Human Rights, Article 8, proclaims that "[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or laws." This guarantee would, of course, include remedies for criminal acts that violate guaranteed rights. The International Covenant on Civil and Political Rights contains a similar guarantee in its Article 2(3). The UN Human Rights Committee overseeing compliance with the covenant has stated that when acts of torture occur, for example, a government is

under a duty to . . . conduct an inquiry into the circumstances of [the victim's] torture, to punish those found guilty of torture and to take steps to ensure that similar violations do not occur in the future. The committee also has called for investigation and prosecution in cases involving arbitrary executions and disappearances. All these acts constitute types of reparations for the wrong done.

The aim of reparation is, where possible, to restore the situation that would have existed had there been no wrongful act. This means to wipe out all of the consequences of the act and try to reestablish the situation that in all probability would have existed if the act had not been committed. Restitution means to restore exactly the preinjury status. If this is not possible, full compensation equivalent to restitution may be required. Satisfaction is an additional set of remedies designed for noneconomic losses, such as harm to dignity. Most important, the wrongful act must cease.

One widely accepted purpose of reparations is remedial justice, to undo the wrong done to an injured party. Reparation is thus designed to put the injured party in the same position as if no wrongful act had occurred, without respect to the cost or consequences it may have for the wrongdoer. Reparations may also serve to punish and deter wrongdoing or aim at reconciliation and inducing positive future behavior.

Procedures for Claiming Reparations

The issue of reparations for genocide and crimes against humanity is complex because the acts usually involve simultaneous breaches of national and international law by individuals and states. Reparations may be owed by both the state and the individuals responsible, and claims may be made by survivors at either the national or international level. Taking together the traditional law of state responsibility, human rights law, and international criminal law, claims for reparations can be presented in one of five ways: (1) The state of nationality of the victims could bring a claim on their behalf against the state responsible for the wrong; (2) the victims may be able to bring a claim against the responsible state in an international human rights tribunal; (3) victims may bring claims against the responsible state in national judicial or administrative bodies; (4) victims may present their claims against the individual perpetrators in an international criminal court; and (5) the victims may make a claim against the individual perpetrators in a national civil or criminal proceeding.

In nearly all instances, reparations are first claimed through administrative or judicial procedures within a state. International law requires that such procedures be followed before a case can come to an international body. This is known as the doctrine of exhaustion of local remedies. Those who have been wronged may sue the wrongdoer for civil remedies or seek to have the perpetrator prosecuted according to criminal law. If the wrongdoer is an agent of the state, a special law and/or process may govern or restrict the right to sue. Many government officials have immunity from lawsuit for their official acts. In such instances, the state itself may have an obligation to make reparations to the injured party.

At the international level, reparations may be sought either by one state bringing a claim against another or by individuals filing a petition against the state committing the wrong. There are presently no international courts in which an individual can sue another individual for reparations, although it may be possible for victims of abuse to seek reparations from perpetrators convicted by the International Criminal Court (ICC).

Interstate claims for reparations on behalf of their nationals have a long tradition, especially at the conclusion of a war. Most of the experience with reparations in international law concerns postwar agreements to settle claims, whereby one state may pay large amounts of compensation to another state. The recipient then should use the funds to redress the injuries to its nationals. A provision of the Treaty of Sèvres concluded between the Allies from World War I and Turkey in 1920 provided for the restitution of property of Armenians killed by the Turks. At the conclusion of World War II, Article 14 of the September 8, 1951, peace treaty between the Allies and Japan "recognized that Japan should pay reparations to the Allied Powers for damage and suffering caused by it during the war."

Once local remedies have concluded, individuals who do not obtain redress may be able to bring claims directly against their own governments or another state in a human rights tribunal. It is necessary that the state involved be a party to the human rights treaty establishing the tribunal to which the individual seeks access and in some instances the state must separately accept the jurisdiction of the tribunal. Each human rights treaty usually specifies the rights that are protected and the types of reparations that the tribunal can award the individual whose rights have been violated.

Types of Reparation

Restitution is intended to restore the victim to the situation that existed before the violations occurred. In many cases of international crimes, particularly genocide, this will not be possible. Even if restitution is possible in theory, the individual perpetrator may not be able to provide it and the state will have to take on responsibility for the crime. Restitution may include restoration of liberty, legal rights, social status, family life and citizenship, return to the place of residence, restoration of employment, and return of property. When restitution cannot be provided, compensation and/or satisfaction must substitute to remedy the harm that has been done.

Compensation is often inadequate, and the more serious the harm, the more compensation as a remedy becomes a problem. Criminal conduct harms not only the victim, it also undermines the rule of law and societal norms. For this reason, compensation is inevitably a second-best response when prosecution and restitution prove impossible to achieve. However, for many crime victims, damages are important. Compensation supplies the means for whatever part of the former life and projects remains possible and may allow for new projects. In cases where the perpetrator is made to pay, compensation also reflects a moral judgment of wrongdoing. Clearly, for survivors of genocide and crimes against humanity, large amounts of money may be necessary to place victims in the same position of relative satisfaction that they occupied before certain events took place.

Compensation should be provided for any economically assessable damage resulting from the wrongful acts. Widely acceptable compensable losses include 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. Rehabilitation costs are also normally provided, including future medical and psychological care as well as legal and social services. Full reparations should include attorneys' fees and costs incurred in bringing a claim. If not, individuals will not be fully restored to their preinjury state.

As part of satisfaction, appropriate mechanisms also are needed to confront and process trauma and abuse, facilitating closure rather than repression. Dealing with grief, anger, and rehabilitation takes time. Victims may harbor deep resentments that if not dealt with could result in vigilante justice and retribution. The long-term mental health of individual victims and society as a whole may be threatened if adequate treatment and rehabilitation are not provided. States and international organizations have introduced a variety of non-monetary measures to respond to these needs in redressing genocide and crimes against humanity.

International and National Claims

Some victims of genocide and crimes against humanity committed during wars have received restitution or compensation negotiated between states. Germany created a system of compensation for Nazi genocide and crimes against humanity. From 1939 onward, those who had escaped from countries overrun by the Germans demanded compensation for property and monies taken from them. Some argued that in addition to individual compensation, a collective claim must be presented for reparations to the Jewish people for the property whose owners were unknown or dead, for institutions and communities that had been destroyed or had vanished, and for damage done to the very fabric of the Jewish people's existence. On September 29, 1945, Chaim Weizmann presented the four Allied powers (France, Great Britain, United States, USSR) with the first postwar Jewish claims, which later became the basis of the claim for the state of Israel (of which Weizmann served as its first president): (1) restitution of property; (2) restoration of heirless property to representatives of the Jewish people to finance the rehabilitation of victims of Nazi persecution; (3) transfer of a percentage of all reparation to be paid by Germany for rehabilitation and resettlement in Palestine; and (4) inclusion of all assets of Germans formerly residing in Palestine as part of the reparations.

The first Allied statement on restitution and reparation (January 5, 1943) announced that the governments reserved all their rights to declare invalid any transfers of property or title of property in territory under German or Italian control, whether the transfers were effected by force or by quasilegal means. The Paris Reparations Conference (November 9–December 21, 1945) accepted the principle that individual and group compensation should be paid to the victims of Nazi persecution in need of rehabilitation and not in a position to secure assistance from governments in receipt of reparations from Germany. Receipt of rehabilitation funds would not prejudice a later claim for compensation. Restitution would apply to identifiable property that had been seized during the period of conquest with or without payment. Indemnification was to be paid for objects of an artistic, educational, or religious value that had been seized by the Germans, but that could no longer be restored to their rightful owners.

The Paris Reparations Conference agreed on several points concerning individual claims, including priority to claims of the elderly and indemnification for damage to vocational and professional training. Claimants who could prove they had been held in concentration camps would receive an overall sum of 3,000 deutsche marks as compensation for deprivation of liberty. The conference set a cap of 25,000 deutsche marks for damage that occurred before June 1, 1945. Another 450 million deutsche marks were paid to the Conference on Jewish Material Claims against Germany, a common holding for twenty-three Jewish organizations, for the settlement of Jewish victims living outside Israel. Finally, a special fund of 50 million deutsche marks was created for nonpracticing Jews.

Successive German compensation laws and agreements were enacted and concluded between 1948 and 1965, including a 1952 treaty between the Federal Republic of Germany (FRG) and Israel. The preamble to the 1952 agreement noted that "unspeakable criminal acts were perpetrated against the Jewish people" and that Germany agreed "within the limits of their capacity to make good the material damage caused by these acts." It also mentioned that Israel had assumed the burden of resettling many destitute Jewish refugees. Article I stated that "the Federal Republic of Germany shall, in view of the considerations herein before recited, pay to the State of Israel the sum of 3,000 million Deutsche Marks."

Between 1959 and 1964 Germany concluded treaties with thirteen European states providing for the payment of 977 million deutsche marks for injury to the life, health, and liberty of their nationals. It also agreed to further contributions: with states in Eastern Europe for the victims of pseudo-medical experiments (122 million deutsche marks) and to the UN High Commissioner for Refugees (57 million deutsche marks). In terms of domestic law, the culmination of German reparations can be found in the Federal Law on Reparation (the Bundesentschaedigungsgesetz). Under this law, various categories of damage are provided for anyone who was oppressed because of political opposition to National Socialism, or because of race, religion, or ideology, or who suffered in consequence loss of life, damage to limb or health, loss of liberty, property, or possessions, or harm to professional or economic prospects.

In 1990 the former East Germany, in a unilateral declaration, offered the World Jewish Congress the sum of $100 million. The total sums paid by Germany in reparations for the actions of the Nazi regime during World War II amount to some 103 billion deutsche marks.

Other persons and groups who have suffered from crimes against humanity, including those used as slave laborers during World War II, have attempted to sue governments or companies to obtain reparations. Japanese Canadians have asked the Canadian government for redress, apology, and the revision of history books with regard to their World War II relocation and detention. Italian Canadians have done the same. Asian women who were forcibly detained as sex slaves by the Japanese military have demanded redress. Former prisoners of war and civilians also seek compensation for the forced labor they performed in Germany and Japan. The lawsuits have generally been unsuccessful, either because they are barred by World War II peace treaties or because the governments involved have immunity from lawsuits. In contrast, banks, museums, art dealers, and governments in several countries have faced claims from victims and their heirs for the restitution of money and works of art stolen during World War II. Problems of proof and conflicting local laws make it difficult to resolve the claims, but many have proven successful or have led to negotiated settlements.

In contrast to the extensive international law and practice on state reparations, there is very little in law or practice on obtaining reparations from individual perpetrators in international proceedings. Before the Rome Statute of the ICC, no international criminal tribunal was expressly authorized to award victims reparations other than restitution. The Security Council resolution establishing the ad hoc International Criminal Tribunal for Rwanda (ICTR) promised to ensure that violations would be "effectively redressed," but the statute of the ICTR limits redress to restitution as a punishment additional to, but not as a substitute for, imprisonment. Neither it nor the statute for the ad hoc Tribunal for the Former Yugoslavia empowers the courts to award compensation or measures of rehabilitation to victims of the crimes being prosecuted, but both statutes foresee the possibility of compensation to victims by national courts in national proceedings.

In contrast to the limited mandates of the ad hoc tribunals, the statute of the ICC expressly includes the possibility for victims to obtain reparations from convicted criminals (Rome Statute, Article 75). The court has discretion to order the perpetrator to provide the victim "restitution, compensation, rehabilitation and other forms of remedy." Nonmonetary awards such as an apology also could be involved. Recognizing that many of those convicted of international crimes may be poor or without any assets, Article 79 of the Rome Statute establishes a trust fund "for the benefit of the victims of crimes within the jurisdiction of the Court" and "of the families of such victims."

Apart from international criminal courts, international tribunals for the protection of human rights may hear cases, judge violations, and afford reparations. Such human rights cases cannot be brought against individuals, but only against the state responsible for the violations. The European Convention for the Protection of Human Rights and Fundamental Freedoms, which went into effect on September 3, 1953, was the first to create an international court for the protection of human rights and a procedure for individual denunciations of human rights violations. The European Court of Human Rights renders judgments in which it may afford "just satisfaction" to the injured party, including compensation for both monetary losses and nonmonetary (moral) damages. In the European Court of Justice of the European Union, individual claimants may plead for an award of damages or other remedies for the violation of fundamental rights. Such rights form an integral part of the general principles of law the court is required to apply. In the Western Hemisphere, the American Convention on Human Rights adopted by the Organization of American States establishes an Inter-American Court of Human Rights that has broad power to order reparations on behalf of victims of human rights violations.

Satisfaction and guarantees of nonrepetition are the most problematic forms of reparations in the context of international crimes and individual responsibility, although some types of satisfaction are inherent in the criminal process: Cessation normally results from the arrest, trial, and conviction of the perpetrator. Disclosure of the truth should occur during the trial. More difficult is the question of locating killed or missing persons and obtaining an official declaration or judicial decision restoring the dignity, reputation, and legal and social rights of the victim and close associates. These forms of redress may not be possible through the criminal prosecution of individual perpetrators. Commemorations of and tributes to the victims also are matters for state action rather than for individual perpetrators.

The prosecution of those committing international crimes is a form of reparation. The obligation on states to prosecute or extradite those accused of genocide, crimes against humanity, and war crimes exists in several international agreements, including the Genocide Convention, the Geneva Conventions of 1949, and the 1977 Protocol I to the Geneva Conventions. Global and regional conventions against torture impose a similar duty. These agreements require states to cooperate with each other in the investigation, prosecution, and adjudication of those charged with the crimes covered under the agreements and the punishment of those convicted. In 1971 the UN General Assembly affirmed that a state's refusal to cooperate in the arrest, extradition, trial, and punishment of persons accused or convicted of war crimes and crimes against humanity is "contrary to the United Nations Charter and to generally recognized norms of international law." The commentary to the Geneva Conventions also confirms that the obligation to prosecute is "absolute" for grave breaches committed within the context of international armed conflicts.

A key role of prosecution is to establish an authoritative record of abuses that will withstand later revisionist efforts. The emphasis in criminal trials on full and reliable evidence in accordance with due process usually makes the results more credible than those of other, more political proceedings, including truth commissions. The chief prosecutor at Nuremberg said that the documentation of Nazi atrocities was one of the most important legacies of the trials. The Nazi actions were documented "with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people."

Right to Reparations

UN human rights bodies have considered the issue of ensuring remedies to victims of atrocities, including genocide and crimes against humanity. In resolution 1988/11 of September 1, 1988, the Sub-Commission on Prevention of Discrimination and Protection of Minorities recognized that all victims of gross violations of human rights and fundamental freedoms should be entitled to restitution, fair and just compensation, and the means for as full a rehabilitation as possible for any damage suffered. In draft principles submitted to the UN, one study proposed that states must act "to prevent violations, to investigate violations, to take appropriate action against the violators, and to afford remedies and reparation to victims. Particular attention must be paid to the prevention of gross violations of human rights and international humanitarian law and to the duty to prosecute and punish perpetrators of crimes under international law" (Van Boven, 1996, p. 1). Principle 4 calls on every state to ensure that adequate legal or other appropriate remedies are available to all persons claiming that their rights have been violated.

In 1985 members of the UN adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The declaration details the types of reparations due to crime victims in national law. Principle 8 states that, when appropriate, restitution should be made to victims, their families, or dependents by offenders or the third parties responsible for their behavior. This includes the return of property and may include compensation for harm or loss suffered. Restitution may be considered as a sentencing option in criminal cases in addition to other sanctions. Because cases often involve state agents or officials acting in an official or quasi-official capacity, paragraph 11 provides that victims should also receive redress from the state. Paragraph 12 requires states to endeavor to provide financial compensation to victims who have sustained significant injury as a result of serious crimes, when compensation is not fully available from the offender or other sources. When persons have died or become incapacitated as a result of such victimization, their families or dependents should be compensated financially. For this purpose, states should establish or strengthen national funds to compensate victims. In addition, victims should receive the necessary material, medical, psychological, and social assistance through governmental, voluntary, community, and indigenous means. Finally, attention must be given to victims who have special needs because of the nature of the harm inflicted or other factors that may disadvantage them in some way.

In practice, reparations may be difficult to obtain. The UN has thus created a voluntary fund for victims of torture and a voluntary fund for victims of slavery and slavelike practices. These funds finance programs that provide medical, psychological, social, or legal assistance to victims and their relatives. Examples of this include the establishment of treatment centers, meetings of experts, aid to child victims, publications, legal assistance, and economical and social rehabilitation. Although these funds do not serve the purpose of making the perpetrators redress the harm they have caused, the money collected is used with the aim of ensuring some relief for those who are victims of the acts specified.

SEE ALSO Compensation; Restitution

Dinah L. Shelton