by International Centre for Transitional Justice, 2007
The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law assert that victims of such abuses have a right to prompt, adequate and effective reparation.2 This is held to include, in some combination and as appropriate, restitution, compensation for harm, and rehabilitation in mind, body and status. Measures to satisfy victims, such as revealing the truth, holding perpetrators accountable, and ceasing ongoing violations are also steps that can have a reparative effect. Likewise, steps to prevent non-recurrence should accompany reparations, as this offers reassurance to victims that reparation is not an empty promise or a temporary stopgap.
In the aftermath of massive or systematic violations or more generalized conflict, providing reparation in a meaningful way poses a daunting challenge. The number of victims may be massive. The harm done may have been devastating and irreversible, may be felt both individually and collectively, and may have long-term consequences both for individual victims and for society as a whole. Abuses of human rights or humanitarian law may have become the norm rather than the exception, and institutional guarantors of those rights – such as the courts or, in some communities, customary arbiters of redress – may have been overwhelmed by the scale of the challenge, destroyed in the course of the conflict, or warped and generally corrupted by political interference.3 In such contexts, broad policy measures to benefit victims are often the most effective way to accomplish reparation rather than through a limited case-by-case approach in the courts.
International law is, by now, fairly clear that a duty exists to provide reparations. In practice, however, the duty lacks precision and questions have been asked about how to give content to that obligation in any given situation where massive harm has been inflicted.