Restitution (Genocide and Crimes Against Humanity)

Restitution is generally associated with the idea of returning something lost or stolen to its legitimate owner. In international law, however, the notion of restitution is linked with the issue of state responsibility. In this sense, restitution is one of the forms through which a state may discharge its obligation to provide reparation for the harm caused by its wrongful acts. More precisely, the term is used, in international practice, in at least two senses. In the strict sense, it signifies the return of unlawfully taken property to the original owner. In the broad sense, restitution (or, in its Latin version, restitutio in integrum) is the re-establishment, as far as possible, of the situation that existed before a wrongful act was committed.

Restitution as a Form of Reparation under International Law

A broad consensus exists among the international community preferring restitution over other forms of reparation under international law. This view is in line with the essential goal of reparation, which, according to the Permanent Court of International Justice's holding in its famous Chorzów Factory decision (1928), "must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed."

It follows that restitutionhich most closely conforms to that goals to be preferred over compensation and other forms of reparation whenever possible, unless the injured party renounces it. This primacy of restitution has been embedded in the articles on the responsibility of states for internationally wrongful acts, adopted on second reading by the United Nations International Law Commission (2001). Even advocates of this primacy, however, recognize that it is not unconditional, and they accept that compensation should be preferred at least when providing restitution would, in a situation involving two states, put a burden on the responsible state that is out of all proportion to the corresponding benefit for the injured state.

Restitution for Gross Human Rights Violations Amounting to Genocide and Crimes Against Humanity

The principles of restitution have been developed in the context of interstate relations. With the development of international human rights law and humanitarian law, however, some have come to believe that if individuals are the direct and ultimate holders of substantive rights under international law, they must also enjoy international remedial rights for obtaining redress when their rights have been infringed. The issue of reparation, including that of restitution, plays a prominent role in this context.

Although there is no reason for excluding the primacy of restitution with regard to gross violations of human rights, its usefulness may be limited, in practice, by the specific type of harm caused by these kinds of wrongs. In effect, genocide and crimes against humanity cause harm, first and foremost, to immaterial and unique interests, such as dignity, personal integrity, and liberty. These cannot be restored to their original status once they are impaired.

Restitution is most suitable and appropriate with regard to violations of property rights, such as illegal or arbitrary expropriations. However, this does not mean that the role of restitution with regard to crimes against humanity is only marginal. In fact, the most invasive attacks on property are often linked with gross human rights violations. Genocide, for instance, may be accompanied by the destruction of houses and the pillage of goods. Furthermore, the destruction, plundering, and pillage of private property can by themselves amount to crimes against humanity or war crimes. This may occur, for example, when the dispossession or destruction is achieved through blatant discriminatory measures, or with the intent of persecuting a group or a collectivity, or when it is "committed by pressure of mass terror." However, a number of practical and political factors may hinder the concrete possibility for the victims to get their property back. This is particularly true with regard to two types of highly politicized restitution claims: those related to historical injustices and those connected with armed conflicts.

The former type of claim relates to serious impairments of human rights committed in a distant past, at a time when they possibly did not even constitute a breach of the existing law. The specificity of these claims lies in the fact that they are arguably based on moral grounds, rather than on the legal responsibility of the state involved. This is one of the reasons why this type of claim is generally dealt with in the framework of political settlements, rather than in the courts. The huge lapse of time passed since the occurrence of the injury poses an additional major obstacle for restitution in these cases. Properties are often destroyed or no longer identifiable, their economical destination may be irreversibly changed, or they may have been transferred to third parties acting in good faith. Under these circumstances, restitution of full ownership is often a virtually impossible option. This situation is well illustrated by land restitution claims put forward by indigenous communities for historical dispossessions.

Restitution claims connected with armed conflicts are complicated by the fact that the dispossessions often take place in conjunction with ethnic cleansing and land occupation with a view to annexation. Here, restitution may still be materially possible but politically unrealistic, particularly when it would mean the return of huge numbers of forcibly displaced persons to territories that have passed under the control of the same group who forced them to flee. In this context, property restitution can hardly be seen as an absolute goal but needs to be reconciled with other, concurring goals, to be settled in the framework of political negotiation.

Restitution in the Framework of International, Treaty-Based Judicial Mechanisms for the Protection of Human Rights

The substantive duty to provide reparations is reinforced in the context of judicial mechanisms of protection, where international courts are vested with the power to adjudicate both on the merits of allegations and on remedies. The potential of remedies, however, may be partly frustrated by the courts themselves ifn the basis of a restrictive interpretation of their remedial powers timid, low-profile approach to reparation is taken. A quite restrictive approach is adopted, for instance, by the European Court of Human Rights, which is generally reluctant to order specific remedies. However, it seems to be more audacious when it comes to infringements of property rights. The court has occasionally ordered states to return unlawfully seized properties to the former owners, thus affirming the primacy of restitution. The fact remains, however, that even in property cases, the court is not always prepared to order reparation to take place on the basis of restitution.

The Inter-American Court of Human Rights, enjoying broader remedial powers than its European counterpart, handed down a landmark judgment in 2001 in the Awas Tingni case. The Court found that Nicaragua had violated the rights to property and judicial protection of the members of the Mayagna (Sumo) community of Awas Tingni, an indigenous community located on the forested area of Nicaragua's Caribbean coastal region. For reparation, the Court ordered the government to take various measures to recognize, protect, and enforce the community's historical title on its ancestral land and resources. Although restitution was not an issue as such, the decision shows the potential of human rights mechanisms in cases of large-scale operations of dispossession that affect whole communities.

Unlike international state responsibility, the international responsibility of individuals has traditionally been conceived as being criminal in nature. Accordingly, the focus of international justice, as administered by international criminal tribunals, has centered on imposing penalties to the perpetrator, rather than on affording redress to the victims. Over the years, however, the view has gradually emerged that the international responsibility of individuals must include some obligations of a civil nature in respect of the victims.

The Rome Statute of the International Criminal Court (1998) recognizes the right of the victims to reparation in general and to restitution in particular. Article 75 of the statute enables the ICC to "make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation." It remains to be seen whether the ICC will, in practice, be able to make an effective use of the power thus granted to it.

Restitution outside the Framework of International Adjudication

Most reparation claims relating to gross human rights violations have been dealt with through political agreements reached outside of the typically adversarial procedures of judicial litigation. These agreements often include the setting up of specific procedures and ad hoc bodies to process individual claims.

In the late 1990s groups of Holocaust survivors have provided the impetus for establishing important reparations programs in Germany, Austria, Switzerland, and other European countries, to provide comprehensive solutions to the quest for reparation for damages incurred as a consequence of or in relation to events that happened during the Nazi era. Because of the legal and material hurdles accompanying restitution, however, most of these reparation programs have been designed to provide financial compensation rather than the restitution of the original property. A notable exception is the General Settlement Fund, established in Austria in 2001. This program comprises a specific procedure for the return of property wrongfully taken in Austria during the Nazi period. Restitution, however, is only possible under the condition that the property concerned was owned by the Austrian federal government at the moment when the fund was established.

Another example of Holocaust-related restitution is provided by the Claims Resolution Tribunal. The tribunal was established through a class action settlement in the United States, by an agreement between two Jewish associations and the Swiss Bankers Association. The tribunal is tasked with providing restitution to the legitimate owners of the assets they deposited with Swiss banks before World War II and which have remained dormant since then.

Restitution of property has also been a key element of the South African democratic transition. Individuals and collective entities that were dispossessed of property during the apartheid regime on the basis of racially discriminatory laws or practices, have the right to receive restitution of that property or equitable redress. Various organs and procedure, including a Land Claims Court and a Commission on Restitution of Land Rights, have been established to give effect to the victims' right to restitution.

Finally, the Dayton Peace Agreement of 1995, dealing with the situation in Bosnia and Herzegovina, paid special attention to the issue of restitution. It established a Commission for Displaced Persons and Refugees (subsequently renamed Commission for Real Property Claims of Displaced Persons and Refugees), which was mandated to receive and decide reparation claims relating to forcible dispossessions in Bosnia and Herzegovina during the war. Under the terms of the agreement, claimants had the right to choose between a return of the property they lost or to accept "just compensation in lieu of return." Similarly, some years later, the Housing and Property Directorate and Claims Commission were established in Kosovo (1999) for dealing with claims of individuals who had lost property as a result of discriminatory laws enacted under the Slobodan Milosevic regime or in connection with the conflict of 1999.

SEE ALSO Compensation; Rehabilitation; Reparations

Pietro Sardaro
Paul Lemmens