Rule 150. Reparation

Volume II, Chapter 42, Section B.

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

It is a basic rule of international law that reparation is to be made for violations of international law. In the Chorzów Factory case (Merits) in 1928, the Permanent Court of International Justice stated that:

It is a principle of international law, and even a general conception of the law, that any breach of an engagement involves an obligation to make reparation … Reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself.[1]

The Draft Articles on State Responsibility provide that “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act”.[2]

The duty to make reparation for violations of international humanitarian law is explicitly referred to in the Second Protocol to the Hague Convention for the Protection of Cultural Property.[3] It is also implied in the rule contained in the Geneva Conventions, according to which States cannot absolve themselves or another High Contracting Party of any liability incurred in respect of grave breaches.[4]

There exist numerous examples of reparation sought by States for violations of international humanitarian law. With respect to the form of reparation, the Draft Articles on State Responsibility provide that “full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation or satisfaction, either singly or in combination”.[5]

(i) Restitution. As explained in Article 35 of the Draft Articles on State Responsibility, the purpose of restitution is to re-establish the situation that existed before the wrongful act was committed. The Article provides that a State responsible for an internationally wrongful act is under an obligation to make restitution provided that this “is not materially impossible” and “does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation”. The commentary on the Draft Articles explains that restitution can, in its simplest form, involve such conduct as the release of persons wrongly detained or the return of property wrongly seized, but can also be a more complex act, and that restitution comes first among the forms of reparation.[6]

Paragraph 1 of the First Protocol to the Hague Convention for the Protection of Cultural Property provides that States must prevent the exportation of cultural property from occupied territory. Paragraph 3 obliges the occupying State (as well as other States) to return cultural property exported in violation of Paragraph 1 at the close of hostilities to the territory previously occupied (see Rule 41).[7]

A number of agreements relating to the Second World War provided for the restitution of property that had been stolen, seized or confiscated.[8] In 1970, during a debate in the Special Political Committee of the UN General Assembly on measures carried out by Israel in the occupied territories, Poland stated that Israel was liable for the restitution of Palestinian property.[9] Hungary’s Military Manual provides that, after a conflict, civilian, cultural and requisitioned objects have to be returned.[10]

In 1991, Germany declared its acceptance of the rule that cultural property has to be returned after the end of hostilities and also stated that it had returned cultural property in all cases in which the cultural goods were found and could be identified. In other cases, Germany has paid compensation to the State of the original owner.[11]

In 1999, during a debate in the UN General Assembly, the United Arab Emirates called upon Iraq to return Kuwaiti cultural property.[12] Kuwait also insisted on the restitution by Iraq of cultural property, and Iraq explained its readiness to do so.[13] Similarly, the UN Security Council urged Iraq on several occasions to return to Kuwait all property seized.[14] The UN Secretary-General reported on compliance by Iraq with obligations placed upon it by several UN Security Council resolutions and noted, in 2000, that a substantial amount of property had been returned since the end of the Gulf War, but that many items remained unreturned. He stressed that “priority should be given to the return by Iraq of the Kuwaiti archives … and museum items”.[15]

In 2001, the Russian Federation and Belgium reached an agreement on the return to Belgium of the military archives stolen by the Nazis during the Second World War and then taken to Moscow by Soviet forces. The Russian Federation accepted to return these archives provided it was reimbursed the cost of having maintained them.[16]

(ii) Compensation. It is a long-standing rule of customary international law, set forth in the 1907 Hague Convention (IV) and repeated in Additional Protocol I, that a State which violates international humanitarian law must pay compensation, if the case demands.[17] This obligation has been put into practice through numerous post-conflict settlements.[18] It is also spelled out in the Draft Articles on State Responsibility, which oblige a State “to compensate for the damage caused … insofar as such damage is not made good by restitution”.[19] The commentary on the Draft Articles explains that “restitution, despite its primacy as a legal principle, is frequently unavailable or inadequate … The role of compensation is to fill gaps so as to ensure full reparation for damage suffered.”[20]

The obligation to compensate for damage caused by violations of international humanitarian law is confirmed by a number of official statements.[21] It has also been recalled in a number of resolutions adopted by the UN Security Council and UN General Assembly.[22]

(iii) Satisfaction. Article 37 of the Draft Articles on State Responsibility provides that:

The requirement to establish the truth through investigation and to bring perpetrators to justice is mentioned in the commentary on Article 37 of the Draft Articles on State Responsibility, which lists “inquiry into the causes of an accident resulting in harm or injury” and “disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act” among the possible ways of giving satisfaction.[24] The US Field Manual includes, as types of remedies for violations of international humanitarian law, publication of the facts and punishment of captured offenders as war criminals.[25] It should be noted that, independent of the duty to provide appropriate reparation, States are under an obligation to investigate war crimes over which they have jurisdiction and to prosecute the suspects if necessary (see Rule 158).

Guarantees of non-repetition are a possible form of satisfaction referred to in the Draft Articles on State Responsibility, which require a State responsible for an internationally wrongful act to cease the violation, and to offer appropriate assurances and guarantees of non-repetition, if circumstances so demand.[26]

There is an increasing trend in favour of enabling individual victims of violations of international humanitarian law to seek reparation directly from the responsible State. Article 33(2) of the Draft Articles on State Responsibility states that Part II of the Draft Articles (“Content of the international responsibility of a State”) “is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State”.[27] The commentary on Article 33 furthermore states that:

When an obligation of reparation exists towards a State, reparation does not necessarily accrue to that State’s benefit. For instance, a State’s responsibility for the breach of an obligation under a treaty concerning the protection of human rights may exist towards all the other parties to the treaty, but the individuals concerned should be regarded as the ultimate beneficiaries and in that sense as the holders of the relevant rights.[28]

Croatia, in its views and comments on the 1997 version of the Draft Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law, as they were then called, and the United States, in a Concurrent Resolution of the House of Representatives in 2001 with regard to violations committed by Japan against so-called “comfort women”, have referred to the right of victims to receive reparation directly.[29] In two resolutions on the former Yugoslavia, the UN General Assembly recognized “the right of victims of ‘ethnic cleansing’ to receive just reparation for their losses” and urged all parties “to fulfil their agreements to this end”.[30]

Reparation has been provided directly to individuals via different procedures, in particular via mechanisms set up by inter-State agreements, via unilateral State acts such as national legislation or reparation sought by individuals directly before national courts.

(i) Reparation provided on the basis of inter-State and other agreements. Under a number of agreements concluded in the aftermath of the Second World War, Germany was obliged to restitute to victims stolen property such as jewellery, precious household goods and other household effects, and cultural property. [31]

A more recent example of restitution to individuals on the basis of an inter-State agreement is the Agreement on Refugees and Displaced Persons annexed to the Dayton Accords which establishes the Commission for Real Property Claims of Displaced Persons and Refugees in Bosnia and Herzegovina and which mandates the Commission to decide on, inter alia, claims for return of real property,[32] as well as for compensation for the deprivation of property in the course of hostilities since 1991, which cannot be restored to them.[33]

The Agreement between the Government of Canada and the National Association of Japanese Canadians (Japanese-Canadian Redress Agreement) adopted in 1988 provides for apology for and acknowledgement of violations of international humanitarian law.[34]

Another example is the United Nations Compensation Commission (UNCC) established by a UN Security Council resolution, which reviews claims for compensation for direct loss and damage arising “as a result of [Iraq’s] unlawful invasion and occupation of Kuwait” suffered by States, international organizations, corporations and individuals. Although the UNCC deals principally with losses arising from Iraq’s unlawful use of force, awards have also covered violations of international humanitarian law suffered by individuals.[35] For example, the UNCC has awarded compensation to former prisoners of war held by Iraq who had been subjected to ill-treatment in violation of the Third Geneva Convention.[36]

A further example is the Eritrea-Ethiopia Claims Commission established by the 2000 Peace Agreement between Eritrea and Ethiopia, which has the mandate “to decide through binding arbitration all claims for loss, damage or injury by … nationals (including both natural and juridical persons) of one party against the Government of the other party or entities owned or controlled by the other party”.[37]

Various specific funds have been created in the recent past with a mandate to award compensation to individuals. Examples include the Austrian Reconciliation Fund and the German Foundation “Remembrance, Responsibility and the Future”, both established by national legislation on the basis of agreements concluded by Austria and Germany with the United States. The Austrian Reconciliation Fund was created “to make a contribution toward reconciliation, peace, and cooperation through a voluntary gesture of the Republic of Austria to natural persons who were coerced into slave labour or forced labour by the National Socialist regime on the territory of the present day Republic of Austria”. The German Foundation was set up in order to “make financial compensation available … to former forced labourers and those affected by other injustices from the National Socialist period”.[38]

Another example is the Victims Trust Fund established pursuant to Article 79 of the Statute of the International Criminal Court. The fund will include money and other property collected through fines and forfeitures imposed by the Court on perpetrators. However, it is expected that funds will also come from voluntary contributions from States, corporations, organizations and individuals.[39]

(ii) Reparation provided on the basis of a unilateral State act. There are reports of direct compensation by Germany to inmates of concentration camps and to victims of medical experiments and by Norway to persons suffering from anti-Jewish measures during the Second World War.[40] Japan has provided an apology for the treatment of “comfort women” and Norway for anti-Jewish measures during the Second World War.[41]

Austria and Germany have adopted laws related to the restitution of objects to victims, as has the United States in the form of its Law on Restitution for WWII Internment of Japanese-Americans and Aleuts.[42]

The creation in 1997 by France of the Study Mission on the Spoliation of Jews in France (also known as the “Mattéoli Mission”) with the task of conducting a study of the various forms of spoliation visited upon the Jews of France during the Second World War, and of the scope and effect of post-war restitution efforts, points in the same direction.[43]

(iii) Reparation sought in national courts. The Hague Convention (IV) and Additional Protocol I require that compensation be paid but do not indicate whether only States are recipients or also individuals, nor do they specify the mechanism for reviewing claims for compensation.[44]

Individual claimants before national courts have encountered a number of obstacles in trying to obtain compensation on the basis of Article 3 of Hague Convention (IV), although no court has explicitly ruled out such a possibility under contemporary international law.[45] In the Shimoda case in 1963, for example, the Tokyo District Court held that individuals did not have a direct right to compensation under international law, and considerations of sovereign immunity precluded proceedings against another State before Japanese courts.[46]

Until the 1990s, German courts generally considered that the 1953 London Agreement on German External Debts had postponed the question of indemnification of individuals, though it did not exclude the possibility of granting compensation once the issue of reparations to States had been settled.[47] As a result, after the coming into force of the 1990 Treaty on the Final Settlement with Respect to Germany (“Two-Plus-Four-Treaty”),[48] the German courts held that, in general, they were no longer prevented from dealing with the question of compensation to individuals.[49] As a consequence, Germany’s Constitutional Court in the Forced Labour case in 1996 stated that there did not exist a rule of general international law preventing the payment of compensation to individuals for violations of international law.[50] However, in the Distomo case in 2003, Germany’s Federal Supreme Court stated that, owing to a concept of war as a “relationship from State to State” as it existed during the Second World War, a State which was responsible for crimes committed at that time was only liable to pay compensation vis-à-vis another State but not vis-à-vis the individual victims. According to the Court, international law conferred upon States the right to exercise diplomatic protection of their nationals, and the right to claim compensation was the right of the State “at least for the period in question”, i.e., during the Second World War.[51]

In the Goldstar case in 1992 relating to the intervention by the United States in Panama, a US Court of Appeals found that Article 3 of the 1907 Hague Convention (IV) was not self-executing because there was no evidence of an intent to provide a private right of action.[52] In the Princz case in 1992, another US Court of Appeals dismissed a claim for damages against Germany for treatment inflicted during the Second World War because it lacked jurisdiction for reasons of State immunity.[53]

An example of compensation granted to individual claimants for injury suffered during the Second World War is the decision by Greece’s Court of First Instance of Leivadia in the Prefecture of Voiotia case in 1997, which was upheld in 2000 by the Supreme Court. In this case, the courts applied Article 3 of the 1907 Hague Convention (IV) and Article 46 of the Hague Regulations and ruled that the victims of the Distomo killings could directly bring a claim against Germany for compensation and that sovereign immunity could not be invoked in connection with violations of a rule of jus cogens (inter alia wilful killing). However, with regard to the same case, Greece refused to give its consent necessary for the execution of the judgment against Germany for reasons of State immunity.[54]

There is an increasing amount of State practice from all parts of the world that shows that this rule applies to violations of international humanitarian law committed in non-international armed conflicts and attributable to a State. It flows directly from the basic legal principle that a breach of law involves an obligation to make reparation,[55] as well as from the responsibility of a State for violations which are attributable to it (see Rule 149). Practice varies in that it sometimes refers to the duty to make reparations in general terms, and at other times to specific forms of reparation, including restitution, compensation and satisfaction (see infra).[56] Some reparation was provided on the basis of a recognition by the government of its responsibility to provide such reparation and sometimes on the basis of its recognition that it ought to make such reparation.

It lies in the nature of non-international armed conflicts, however, that the procedures which have been made available to provide reparation in international armed conflict are not necessarily relevant in non-international armed conflict. In particular, in non-international armed conflicts, victims suffer violations in their own State and generally have access to domestic courts to claim reparation in accordance with domestic law.[57] It is noteworthy in this respect that the International Covenant on Civil and Political Rights, as well as the three regional human rights treaties, require that States must provide a remedy for violations.[58] The UN Human Rights Committee and the Inter-American Court of Human Rights have stated that this obligation is non-derogable.[59]

The possibility for an individual victim of a violation of international humanitarian law to seek reparation from a State can be inferred from Article 75(6) of the Statute of the International Criminal Court, which states that “nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law”.[60] Article 38 of the Second Protocol to the Hague Convention for the Protection of Cultural Property, which expressly refers to the duty of States to provide reparation, applies in any armed conflict.[61]

An example from practice is the Joint Circular on Adherence to International Humanitarian Law and Human Rights of the Philippines, which provides that in the case of damage to private property in the course of legitimate security or police operations, “measures shall be undertaken whenever practicable … to repair the damage caused”.[62] Also, in a resolution adopted in 1996, the UN General Assembly urged the Afghan authorities to provide “efficient and effective remedies” to victims of serious violations of international humanitarian law.[63]

Other examples from practice relate to specific forms of reparation, including restitution, compensation and satisfaction:

(i) Restitution. In the case of Akdivar and Others v. Turkey, the European Court of Human Rights stated that there was a legal obligation for a violating State to put an end to the breach and to “make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (restitutio in integrum)”. However, it also stated that if this was in practice impossible, the State that ought to make reparation was to choose another means in order to comply with the judgment. [64]

Another example is the Agreement on Refugees and Displaced Persons annexed to the Dayton Accords, which established the Commission for Real Property Claims of Displaced Persons and Refugees in Bosnia and Herzegovina, stating that refugees and displaced persons shall have the right to restitution of property of which they were deprived during the hostilities since 1991.[65]

Similarly, the Housing and Property Claims Commission in Kosovo is given the power to decide on claims for restitution, repossession and return of the property brought by certain categories of persons, including those who lost their property rights as a result of discrimination, as well as refugees and displaced persons.[66]

Another example is the 1998 Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines which provides for restitution as a possible form of reparation.[67]

(ii) Compensation. There is widespread and representative practice in which States have made efforts to compensate victims of violations of international humanitarian law committed in non-international armed conflicts. Examples include: the Comprehensive Agreement on Human Rights in Guatemala by which the parties “recognize that it is a humanitarian duty to compensate and/or assist victims of human rights violations”; the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines, by which the parties recognize the right of the victims and their families to seek justice for violations of human rights, including “adequate compensation or indemnification”; and the Russian Federation’s Resolution on Compensation for Destruction of Property for Citizens Having Suffered from the Settling of the Crisis in Chechnya and Having Left Chechnya Irrevocably.[68] Also, Chile’s National Commission for Truth and Reconciliation, El Salvador’s special committee investigating the whereabouts of missing persons and Sri Lanka’s Commission of Inquiry into Involuntary Removal or Disappearance of Persons in certain provinces made recommendations that compensation should be paid to victims or their relatives.[69] In its views and comments on the 1997 version of the Draft Principles and Guidelines on the Right to Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law, as they were then called, Chile called for inclusion of a specific provision establishing “the State’s immediate, direct liability for compensation”.[70] Rwanda, in 1996, and Zimbabwe, in 1999, also announced their willingness to compensate victims of, respectively, acts of genocide and crimes against humanity committed in Rwanda and of killings committed during the armed conflict in the early 1980s in Zimbabwe.[71]

Another instrument implementing the right of victims to compensation is the Agreement on Refugees and Displaced Persons annexed to the Dayton Accords, which establishes the Commission for Real Property Claims of Displaced Persons and Refugees in Bosnia and Herzegovina and which states that refugees and displaced persons who were deprived of their property in the course of hostilities since 1991 must be compensated if the property cannot be restored to them.[72] UNMIK Regulation No. 2000/60, containing the Rules of Procedure and Evidence of the Housing and Property Claims Commission in Kosovo, provides for compensation to persons whose property rights were lost as a result of discrimination.[73]

There has also been practice by international organizations calling for or recommending compensation to victims of violations of international humanitarian law in non-international armed conflicts.[74]

(iii) Satisfaction. There are examples of practice where satisfaction has been provided as a form of reparation, including in the form of rehabilitation, apology, guarantees of non-repetition and establishing the truth. For example, as early as the Spanish Civil War, apologies, guarantees of non-repetition and a promise of punishing persons responsible for certain violations were made.[75]

More recently, the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines provides for “rehabilitation” as a possible form of reparation.[76] The requirement to establish the truth through investigation and to bring perpetrators to justice was stressed by the Inter-American Commission on Human Rights in a case concerning the murder of Archbishop Romero by death squads in El Salvador in 1980. The Commission established, inter alia, that El Salvador was responsible for:

Referring to decisions by the UN Human Rights Committee, it furthermore stated that “the duty to make reparations for damage is not satisfied merely by offering a sum of money to the victim’s next-of-kin. First, an end must be brought to their uncertainty and ignorance, i.e. they must be given the complete and public knowledge of the truth.” It stated that this right to know the full, complete and public truth “is part of the right to reparation for human rights violations, with respect to satisfaction and guarantees of non-repetition”.[77] The principle that reparation includes the right to the truth, as well as the investigation and prosecution of the persons responsible for human rights violations, was confirmed by the Inter-American Court of Human Rights in the case of Street Children v. Guatemala in 2001.[78]

There is some practice to the effect that armed opposition groups are required to provide appropriate reparation for the damage resulting from violations of international humanitarian law. An example is the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines, which states that “the Parties to the armed conflict shall adhere to and be bound by the generally accepted principles and standards of international humanitarian law” and which provides for indemnification of the victims of violations of international humanitarian law.[79] It is also significant that in 2001 a provincial arm of the ELN in Colombia publicly apologized for the death of three children resulting from an armed attack and the destruction of civilian houses during “an action of war” and expressed its willingness to collaborate in the recuperation of remaining objects.[80]

There is also some practice of the United Nations supporting the obligation of armed opposition groups to provide appropriate reparation. In a resolution on Liberia adopted in 1996, the UN Security Council called upon “the leaders of the factions” to ensure the return of looted property.[81] In a resolution on Afghanistan adopted in 1998, the UN Commission on Human Rights urged “all the Afghan parties” to provide effective remedies to the victims of violations of human rights and humanitarian law.[82] In 1998, in his report on the causes of conflict and the promotion of durable peace and sustainable development in Africa, the UN Secretary-General recommended that “in order to make warring parties more accountable for their actions … international legal machinery be developed to facilitate efforts to find, attach and seize the assets of transgressing parties and their leaders”.[83]

Even if it can be argued that armed opposition groups incur responsibility for acts committed by persons forming part of such groups (see commentary to Rule 149), the consequences of such responsibility are not clear. In particular, it is unclear to what extent armed opposition groups are under an obligation to make full reparation, even though in many countries victims can bring a civil suit for damages against the offenders (see commentary to Rule 151).