If a state violates international law it is responsible to immediately cease the unlawful conduct, and offer appropriate guarantees that it will not repeat the illegal actions in the future. The state also has a responsibility to make full reparations for the injury caused, which include both material and moral damage.
The rights to reparations is part of the right of victims to remedy for violations of their rights. The above are fundamental principles of international customary law.
Read more about international customary law
What is meant by reparations?
Reparations can take the form of restitution, compensation, rehabilitation or satisfaction.
- Restitution: To re-establish the situation which existed before the violation was committed, as long as it is not materially impossible or involves a disproportional burden either by returning the material or if this is not possible, by paying the value of it. Examples: releasing persons who have been illegally detained, return property that was illegally seized.
- Compensation: Financial compensation for the damages caused (in addition to the value of material that could not be restituted). It includes compensation for material damages that can be valued in money, such as loss of income and treatment for physical harm; or non-material damages, such as lost opportunities of education, as well as mental harm etc.
- Rehabilitation: As money can never undo psychological harm and trauma caused by violations of international humanitarian law (IHL) and human rights, rehabilitation shall be offered for the victims’ healing process. Rehabilitation should include medical and psychological care as well as legal and social services.
- Satisfaction: Acknowledgement of the breach, an expression of regret or a formal apology by the violating state.
Who has the right to reparations?
Both individual victims and states can claim reparations from the responsible state.
When two parties to an armed conflict sign a peace agreement, the victims' right to reparations cannot be negotiated away. It is a non-derogable, fundamental principle in international law that war victims have the right to reparations.
Where to enforce reparations?
The right of victims to reparations can be enforced either on the international or the national levels.
- Individuals may claim damages in a national court of the violating state, international or regional courts, or before a court of a third state in certain cases. For example, the United States allow foreign nationals to sue any state before its national courts under the Alien Tort Claims Act.
- Claims between two states can be brought to the International Court of Justice (ICJ) in the Hague. The Court can also issue an advisory opinion that may recommend reparations be provided by the violating state.
- States can also, through an agreement, set up their own arbitration tribunals.
- Reparations can also result from a UN Security Council resolution, which can establish an obligatory reparation mechanism. For example, after the Iraqi invasion of Kuwait, a UN Compensation Committee (UNCC) was established as a result of such a resolution, through which Iraq paid damages to numerous of companies, states, and individual victims who suffred damages in Kuwait.
- States may introduce their own reparations programs. For example, Argentina, after the military dictatorship in the 1980's set up such programs, whereby mass number of individuals received damages, without having to stand the same high threshold for evidence as in a court. Agreements between states ended up in reparations programs such as the one between Germany and Israel for violations of the Nazi regime in the Second World War.
- In states with a past of massive violations of human rights and IHL, Truth Commissions can be a way to reconcile a divided country, and make reparations in form of satisfaction to the victims. Truth Commissions are not judicial bodies, which deals with criminal punishment but they allow the stories on violations to be told. Truth Commissions were, for example, set up in South Africa after the Apartheid regime, in Sierra Leone after the internal war, and in many South American countries after fallen dictatorships.
Read more about enforcement of IHL
Uganda vs. Congo
In late 2005, the International Court of Justice (ICJ) heard a case between Uganda and the Democratic Republic of Congo. The case focused on Uganda's armed activities, during its military occupation of the Ituri district inside the territory of Congo.
The Court held that Uganda, among other things, had committed acts of killing and torture towards the civilian population in Congo, destroyed villages and buildings, and had failed to distinguish between civilian and military targets.
Uganda, as an occupying power of Congolese territory, was held guilty for failing to respect and ensure respect for human rights and international humanitarian law, and was condemned to make reparations to Congo.
How to enforce reparations?
Since there is no international police that can make sure that states provide reparations, and the international community rarely forces such remedies on the violating state, the rights of victims depend mostly on mobilizing political will - nationally and internationally - to ensure rights are protected.
A state who refuses to provide remedies risks loosing its reputation and good will among civil society organizations, and the international community.