Practice Relating to Rule 150. Reparation
Section C. Forms of reparation other than compensation
In 2005, in a report in response to a parliamentary postulate on private security and military companies, Switzerland’s Federal Council stated:
Nonfeasance in international law or activities running counter to international law which can be ascribed to states raises the question of their so-called state responsibility. Important rules regarding state responsibility are contained in the  “Draft Articles on Responsibility of States for Internationally Wrongful Acts” of the “International Law Commission” of the United Nations (ILC), a document reflecting international customary law.
A state can be held responsible for acts carried out by its authorities who contravene international law. Conduct running counter to international law of an individual, a group of individuals, or a corporate body which are not state bodies can also be ascribed to a state if the named actors are empowered on the basis of the laws of this state to carry out sovereign activities, or if in their activities they in fact act under the instructions or under the direction or control of this state. In addition, the conduct of an individual or group of individuals, according to international law, is considered to be an act of the state if the individual or group of individuals, in the absence or default of the official authorities actually assume sovereign functions, and conditions are such that the exercise of such sovereign functions are required (Art. 5, 8 and 9 of the ILC Draft Articles).
The consequence of this state responsibility is the obligation to provide full reparation in the form of restitution, compensation and satisfaction
to the wronged state or if necessary to the international community (Part 2 of the ILC Draft Articles).
[footnote in original omitted; emphasis in original]
In 2006, Switzerland’s Federal Department of Foreign Affairs issued a conceptual framework for dealing with the past, which states:
Although there is no standard model for dealing with the past, Switzerland has strongly contributed to the elaboration of a conceptual framework in this field. The so-called “Joinet principles” constitute the basis of this approach. They identify four key areas in the struggle against impunity:
- The right to know,
- The right to justice,
- The right to reparation,
- The guarantee of non-recurrence.
The right to know
The right to know the truth and the duty to remember involve both the individual right of victims and their families to learn the truth about what happened to them or their loved ones and the collective right of society to know the truth about past events and circumstances which led to gross human rights violations. These are an important part of the necessary measures to prevent the risk of human rights violations recurring.
In addition, it involves an obligation on the part of the State to undertake measures to preserve the collective memory and so to guard against the development of revisionist arguments. The most frequently used instrument to ensure this right is the extra-judicial commission of inquiry, also known as truth and reconciliation commissions. Their two-fold purpose is to dismantle the administrative machinery that has led to abuses in the past in order to ensure that they do not recur and to preserve evidence for the judiciary. The second measure often entails documentation and the preservation of archives relating to grave human rights violations.
The right to justice
The right to justice and the duty to investigate and to prosecute imply that any victim can assert his or her rights and receive fair and effective remedy for abuses suffered. This includes the expectation that the person or persons responsible will be held accountable to the law and that reparations will be forthcoming. It also entails the obligation on the part of the State to investigate violations, to arrest and to prosecute the perpetrators and, if their guilt is established, to punish them.
The right to reparation
The right to reparation, both at the individual level and in collective forms, entails individual measures for victims and their relatives or dependants such as:
- Restitution, i.e. seeking to restore the victim to his or her previous situation;
- Compensation for physical or mental injury, including lost opportunities, physical damage, defamation, and legal aid costs;
- Rehabilitation, i.e. medical care, including psychological and psychiatric treatment.
Collective measures of reparation involve symbolic acts such as annual tributes of homage to the victims or public recognition by the State of its responsibility, which help to discharge the duty of remembrance and help restore victims’ dignity.
The guarantee of non-recurrence
The guarantee of non-recurrence includes vetting/lustration and institutional reform. It emphasizes the need to disband para-military armed groups (DDR), to reform security institutions, repeal emergency laws, and to remove officials from office who are implicated in serious human rights violations following a fair and transparent procedure. It also foresees the reform of state institutions in accordance with the norms of good governance and the rule of law.
In 2013, Switzerland’s Federal Department of Foreign Affairs issued the document “Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000)”, which stated:
The concept of [d]ealing with the past stems from the Principles against Impunity developed by Louis Joinet and approved by the UN Commission on Human Rights in 1997. These principles recognise the rights of victims and the duties of states in combating impunity in cases of grave violations of human rights and international humanitarian law. The Principles against Impunity call for combined initiatives to ensure the realisation of these rights and obligations in the following areas: the right to know, the right to justice, the right to reparation and the guarantee of non-recurrence.
The Action Plan also states:
Greater inclusion of a gender perspective during and after violent conflicts in emergency aid, reconstruction and in dealing with the past
SUBORDINATE GOAL 3
Switzerland implements UNSCR [UN Security Council resolution] 1325 during and after violent conflicts, as well as in fragile contexts through its bilateral measures for emergency aid, reconstruction and dealing with the past.
3 Activities, programmes and projects focused on dealing with the past (DwP) incorporate gender aspects in in all four areas: Right to Truth, Right to Justice, Right to Reparation, Guarantee of Non-Recurrence).
[emphasis in original; footnote in original omitted]
In 2013, in a statement before the UN Security Council during a debate on the protection of civilians in armed conflict, Switzerland’s chargé d’affaires stated:
We remain most concerned by reports of serious violations of international humanitarian law and human rights in Syria. … In view of the extent of the violations and the number of victims in Syria, a holistic approach will be required in order to address the victims’ right to know, right to justice, right to reparation, and the guarantee of non-recurrence, within the framework of a political solution to the conflict.