Practice Relating to Rule 150. Reparation

Paris Agreement on Reparation from Germany
The 1946 Paris Agreement on Reparation from Germany was concluded
in order to obtain an equitable distribution among [the signatory governments] of the total assets which … are or may be declared to be available as reparation from Germany … in order to establish an Inter-Allied Reparation Agency, and to settle an equitable procedure for the restitution of monetary gold. 
Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold, concluded between Albania, the United States of America, Australia, Belgium, Canada, Denmark, Egypt, France, the United Kingdom of Great Britain and Northern Ireland, Greece, India, Luxembourg, Norway, New Zealand, Netherlands, Czechoslovakia, Union of South Africa and Yugoslavia, Paris, 14 January 1946.
Paris Agreement on Reparation from Germany
Article 2(A) of Part I of the 1946 Paris Agreement on Reparation from Germany states:
The Signatory Governments agree among themselves that their respective shares of reparation, as determined by the present Agreement, shall be regarded by each of them as covering all its claims and those of its nationals against the former German Government and its Agencies, of a governmental or private nature, arising out of the war (which are not otherwise provided for). 
Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold, concluded between Albania, the United States of America, Australia, Belgium, Canada, Denmark, Egypt, France, the United Kingdom of Great Britain and Northern Ireland, Greece, India, Luxembourg, Norway, New Zealand, Netherlands, Czechoslovakia, Union of South Africa and Yugoslavia, Paris, 14 January 1946, Part I, Article 2(A).
Paris Agreement on Reparation from Germany
Article 8 of Part I of the 1946 Paris Agreement on Reparation from Germany contains provisions regarding the allocation of a reparation share to non-repatriable victims of German action. Article 8(I) provides:
Nothing in this Article shall be considered to prejudice the claims which individual refugees may have against a future German Government, except to the amount of the benefits that such refugees may have received from the sources referred to … above. 
Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold, concluded between Albania, the United States of America, Australia, Belgium, Canada, Denmark, Egypt, France, the United Kingdom of Great Britain and Northern Ireland, Greece, India, Luxembourg, Norway, New Zealand, Netherlands, Czechoslovakia, Union of South Africa and Yugoslavia, Paris, 14 January 1946, Part I, Article 8.
Austrian State Treaty
Article 21 of the 1955 Austrian State Treaty, which in its preamble considers that “on 13 March 1938, Hitlerite Germany annexed Austria by force and incorporated its territory in the German Reich”, provides: “No reparation shall be exacted from Austria arising out of the existence of a state of war in Europe after 1 September 1939.” 
State Treaty for the Re-establishment of an Independent and Democratic Austria (with Annexes and Maps), concluded between France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Austria, accession of Australia, Brazil, Canada, Czechoslovakia, Mexico, New Zealand, Poland and Yugoslavia, Vienna, 15 May 1955, Article 21.
Joint Declaration on Soviet-Japanese Relations
Article 6 of the 1956 Joint Declaration on Soviet-Japanese Relations provides:
The Union of Soviet Socialist Republics renounces all reparation claims against Japan. The USSR and Japan agree to renounce all claims by either State, its institutions or citizens, against the other State, its institutions or citizens, which have arisen as a result of the war since 9 August 1945. 
Joint Declaration by the Union of Soviet Socialist Republics and Japan concerning the restoration of diplomatic relations between the two countries, Moscow, 19 October 1956, Article 6.
ICC Statute
Article 75 of the 1998 ICC Statute provides:
1. The Court shall establish principles relating to reparations to, or in respect of, victims …
6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 75(1) and (6).
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 38 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides: “No provision in this Protocol relating to individual criminal responsibility shall affect the responsibility of States under international law, including the duty to provide reparation.” 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 38.
Convention on Enforced Disappearance
The 2006 Convention on Enforced Disappearance provides:
Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
Considering the right of … victims [of enforced disappearance] to justice and to reparation … ,
Article 24
1. For the purposes of this Convention, “victim” means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance.
4. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation.
5. The right to obtain reparation referred to in paragraph 4 of this article covers material and moral damages and, where appropriate, other forms of reparation such as:
(a) Restitution;
(b) Rehabilitation;
(c) Satisfaction, including restoration of dignity and reputation;
(d) Guarantees of non-repetition.
6. Without prejudice to the obligation to continue the investigation until the fate of the disappeared person has been clarified, each State Party shall take the appropriate steps with regard to the legal situation of disappeared persons whose fate has not been clarified and that of their relatives, in fields such as social welfare, financial matters, family law and property rights.
7. Each State Party shall guarantee the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons, and to assist victims of enforced disappearance. 
International Convention for the Protection of all Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 61/177, 20 December 2006, Annex, Preamble and Article 24.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2000)
Article 2 of the 2000 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law provides: “States shall ensure that domestic law is consistent with international legal obligations by: … making available adequate, effective and prompt reparation.”  
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, annexed to The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report of the Special Rapporteur of the UN Commission on Human Rights, submitted in accordance with UN Commission on Human Rights resolution 1999/33, UN Doc. E/CN.4/2000/62,18 January 2000, Article 2.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (2000)
Article 3 of the 2000 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law provides:
The obligation to respect, ensure respect for and enforce international … humanitarian law includes, inter alia, a State’s duty to:
(d) Afford appropriate remedies to victims; and
(e) Provide for or facilitate reparation to victims. 
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, annexed to The Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final Report of the Special Rapporteur of the UN Commission on Human Rights, submitted in accordance with UN Commission on Human Rights resolution 1999/33, UN Doc. E/CN.4/2000/62,18 January 2000, Article 3.
ILC Draft Articles on State Responsibility
Article 31 of the 2001 ILC Draft Articles on State Responsibility provides:
1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State. 
Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its fifty-third session, 23 April–1 June and 2 July–10 August 2001, UN Doc. A/56/10, 2001, Article 31.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL (2005)
Paragraphs 8, 9, 11 to 17 and 24 of the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law state:
8. For purposes of the present document, victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
9. A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim.
VII. Victims right to remedies
11. Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law:
(a) Equal and effective access to justice;
(b) Adequate, effective and prompt reparation for harm suffered;
(c) Access to relevant information concerning violations and reparation mechanisms.
VIII. Access to justice
12. A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law. Other remedies available to the victim include access to administrative and other bodies, as well as mechanisms, modalities and proceedings conducted in accordance with domestic law. Obligations arising under international law to secure the right to access justice and fair and impartial proceedings shall be reflected in domestic laws. To that end, States should:
(a) Disseminate, through public and private mechanisms, information about all available remedies for gross violations of international human rights law and serious violations of international humanitarian law;
(b) Take measures to minimize the inconvenience to victims and their representatives, protect against unlawful interference with their privacy as appropriate and ensure their safety from intimidation and retaliation, as well as that of their families and witnesses, before, during and after judicial, administrative, or other proceedings that affect the interests of victims;
(c) Provide proper assistance to victims seeking access to justice;
(d) Make available all appropriate legal, diplomatic and consular means to ensure that victims can exercise their rights to remedy for gross violations of international human rights law or serious violations of international humanitarian law.
13. In addition to individual access to justice, States should endeavour to develop procedures to allow groups of victims to present claims for reparation and to receive reparation, as appropriate.
14. An adequate, effective and prompt remedy for gross violations of international human rights law or serious violations of international humanitarian law should include all available and appropriate international processes in which a person may have legal standing and should be without prejudice to any other domestic remedies.
IX. Reparation for harm suffered
15. Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.
16. States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.
17. States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgements.
X. Access to relevant information concerning violations and reparation mechanisms
24. States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Basic Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access. Moreover, victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations. 
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, annexed to UN General Assembly resolution 60/147 of 16 December 2005, §§ 8, 9, 11–17 and 24.
Philippines
The Joint Circular on Adherence to IHL and Human Rights (1991) of the Philippines states:
If, in the course of legitimate security/police operations, private properties are damaged, measures shall be undertaken whenever practicable, utilizing available unit’s manpower and equipment, to repair the damage caused as a matter of AFP/PNP [Armed Forces of the Philippines/Philippine National Police] Civic Action Policy. 
Philippines, Implementation Guidelines for Presidential Memorandum Order No. 393, dated 9 September 1991, Directing the Armed Forces of the Philippines and the Philippines National Police to Reaffirm their Adherence to the Principles of Humanitarian Law and Human Rights in the Conduct of Security/Police Operations, Joint Circular Number 2-91, Department of National Defense, Department of Interior and Local Government, 1991, § 2(a)(4).
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
During combat operation:
12. Avoid destroying crops, properties and possessions. During military operations, avoid damaging plants and properties along the way. Avoid using incendiary that […] would set fire combustible materials such as “sawali,” “nipa” and other indigenous materials usually used for huts in the village. If unavoidable, pay for the damaged properties as soon as the combat operations are over or else repair or replace the damages. 
Philippines, Philippine Army Soldiers Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 58, § 12.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
It is a principle of international law that a state responsible for an internationally wrongful act is obliged to make full reparation for the injury caused by that act. This principle extends to the law of armed conflict in that a state is responsible for violations of the law committed by persons forming part of its armed forces and, if the case demands, is liable to pay compensation. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.15.
El Salvador
El Salvador’s Decree Creating the National Commission for Tracing Missing Children (2010) states:
Art. 1.- The National Commission for Tracing Girls and Boys Missing during the Internal Armed Conflict, which will be referred to as “Commission” or “Tracing Commission” hereinafter.
Art. 3.- The Commission shall have the mandate to:
f) Promote coordination with public institutions and the participation of private, national and international, organizations, … to [contribute to] … full reparation [of missing girls and boys].” 
El Salvador, Decree Creating the National Commission for Tracing Missing Children, 2010, Articles 1 and 3(f).
El Salvador
El Salvador’s Decree Creating the National Commission for Reparation to Victims (2010) states:
The “National Commission for Reparation to Victims of Violations of Human Rights that occurred in the context of the internal armed conflict”, hereinafter referred to as the “Commission” is created. … [The Commission’s] aim is to propose to the President of the Republic, through a duly founded report, the establishment of a presidential program for reparation to victims of serious violations of human rights. 
El Salvador, Decree Creating the National Commission for Reparation to Victims, 2010, Article 1.
The decree further states:
In the accomplishment of its functions, the Commission will take into account:
a) The standards for reparation [to victims] established by international human rights law and the jurisprudence of the Inter-American Court of Human Rights, in particular;
b) The opinion of Salvadoran non-governmental organizations that represent the interests of the victims of serious violations of human, referred to in article 7 of this Decree;
c) That reparations must have a collective character;
d) Previously elaborated reports on the situation of human rights in the country in the context of the internal armed conflict; and,
e) The fiscal, economic and financial situation of the country. 
El Salvador, Decree Creating the National Commission for Reparation to Victims, 2010, Article 5.
In Article 7, the decree states: “As part of its work methodology, the Commission will hear the opinion of the organizations of victims of human rights violations through the establishment of a regular dialogue with these organizations.” 
El Salvador, Decree Creating the National Commission for Reparation to Victims, 2010, Article 7.
The decree also states:
The Commission will exclusively circumscribe its work to the serious violations of human rights that took place in the context of the internal armed conflict, which ended on 16 January 1992 with the signature of the “Chapultepec Agreement” [El Salvador Peace Agreement].
The reparation processes, initiated by the State in fulfilment of the reports or rulings of the competent international or national organisms, will be carried out and completed without prejudice to the fulfilment of the responsibilities that this Decree grants to the Commission. 
El Salvador, Decree Creating the National Commission for Reparation to Victims, 2010, Article 8.
Georgia
Georgia’s Law on Occupied Territories (2008) states:
Protection of Human Rights and Cultural Monuments in the Occupied Territories.
3. The responsibility of the Russian Federation, as the State carrying out the military occupation, to reimburse moral and material damages inflicted in the Occupied Territories upon citizens of Georgia, persons without citizenship, and citizens of foreign countries who entered the territory of Georgia and moved to the Occupied Territory … [with] the required permission shall be determined in accordance with the norms and principles of international law. 
Georgia, Law on Occupied Territories, 2008, Article 7(3).
Liberia
Liberia’s Act to Establish the Truth and Reconciliation Commission (2005) states:
Preamble
Considering that the civil conflict was generally characterized by gross violations of human rights and the widespread commission of gruesome and heinous crimes against humanity in further violation of international humanitarian laws and standards;
Article VII. Functions and Powers
Section 26. The TRC [Truth and Reconciliation Commission] shall enjoy and exercise such functions and powers as are relevant for the realization of its mandates. Its functions and powers shall include, but not be limited to:
(j) Making recommendations to the Head of State with regard to … [r]eparations and rehabilitation of victims and perpetrators in need of specialized psycho-social and other rehabilitative services. 
Liberia, Act to Establish the Truth and Reconciliation Commission, 2005, Preamble and Article VII, Section 26.
Peru
Peru’s Law Creating the Comprehensive Reparations Plan (2005) states:
The purpose of the present law is to create the legal framework for the Comprehensive Reparations Plan – CRP for victims of the violence that took place between May 1980 and November 2000 in accordance with the conclusions and recommendations in the report of the Truth and Reconciliation Commission. 
Peru, Law Creating the Comprehensive Reparations Plan, 2005, Article 1.
The Law also states:
For purposes of the present law, beneficiary is the victim, relatives of the victims or groups who … were subjected to a violation of their human rights on an individual basis and those who experienced harm to the social fabric [of their community] by being subjected to a violation of their collective rights[. They] … shall benefit from the Comprehensive Reparations Plan recommended by the Truth and Reconciliation Commission. 
Peru, Law Creating the Comprehensive Reparations Plan, 2005, Article 5.
The Law further states:
For purposes of the present law, victims are considered to be persons or groups of persons who have experienced acts or omissions that constitute human rights violations such as enforced disappearance, kidnapping, extrajudicial execution, murder, forced displacement, arbitrary detention, forced recruitment, torture, rape or killings, as well as the relatives of persons who died or disappeared within the timeframe stipulated by Article 1 of the present law. 
Peru, Law Creating the Comprehensive Reparations Plan, 2005, Article 3.
Peru
Peru’s Regulations to the Law Creating the Comprehensive Reparations Plan (2006) state:
Reparations
are actions taken by the State for the benefit of the victims of the process of violence mentioned in Article 3 of the Law [Creating the Comprehensive Reparations Plan] in order to explicitly recognize them as victims. [Such actions have the objective] of providing the victims with access to justice, restitution of their rights, the resolution of after-effects of human rights violations as well as material and moral reparation, be it specific or symbolic, for the harm suffered. 
Peru, Regulations to the Law Creating the Comprehensive Reparations Plan, 2006, Article 3.
The Regulations also provide:
State action regarding reparations shall be based on concurrent and specific actions carried out by State entities and shall be aimed at promoting programmes of reparations that allow victims of the process of violence to obtain restitution for the rights violations they experienced during the internal armed conflict. 
Peru, Regulations to the Law Creating the Comprehensive Reparations Plan, 2006, Article 5.
The Regulations further states:
The determination and allocation of reparations for victims and beneficiaries under any reparations programme for victims and beneficiaries shall be carried out in a way that treats persons in the same situation equally and proportionately and that treats differently persons in different situations. 
Peru, Regulations to the Law Creating the Comprehensive Reparations Plan, 2006, Article 6(c).
The Regulations also states:
The determination and allocation of reparations under any reparations programme for victims and beneficiaries shall be carried out without any distinction, exclusion, restriction or preference of any nature that would have the objective or consequence of annulling or discrediting the acknowledgment, allocation and enjoyment of the reparations in conditions of equality. 
Peru, Regulations to the Law Creating the Comprehensive Reparations Plan, 2006, Article 6(d).
The Regulations further states:
The Comprehensive Reparations Plan … has the following objectives:
d) To provide reparation and/or compensate for the human, social, moral, material, and economic harm caused by the process of violence to the affected persons, families, indigenous communities and populations. 
Peru, Regulations to the Law Creating the Comprehensive Reparations Plan , 2006, Article 10(d).
The Regulations also states:
Victims shall be considered to be any persons or groups of persons who during the process of violence suffered from acts or omissions that violated international human rights law, such as:
a) extrajudicial execution,
b) murder,
c) enforced disappearance,
d) rape,
e) torture,
f) kidnapping,
g) forced displacement,
h) arbitrary detention,
i) forced recruitment,
j) violation of due process. 
Peru, Regulations to the Law Creating the Comprehensive Reparations Plan, 2006, Article 45.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
The State shall be responsible for the reparation of victims of the crimes set out in Titles I to III of Part II of the present law [which include war crimes] committed in the territory of the Republic or abroad by agents of the State or by persons who were not agents of the State but who acted under the authorization, support or acquiescence of State agents. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 14.1.
Uruguay
Uruguay’s Law on Reparations (2009) states:
CHAPTER I
RECOGNITION BY THE STATE
Article 1º. – The breach of the rule of law which prevented individuals from exercising their fundamental rights, in violation of human rights or international humanitarian law, between 27 June 1973 and 28 February 1985 shall be recognized.
Article 3º. – The right to full reparation shall be recognized for all persons who, by action or omission of the State, are included in the definitions of articles 4 and 5 of the present Law. Such reparation shall be provided – where appropriate – with appropriate measures of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
CHAPTER II
DEFINITION OF VICTIMS
Article 4º. – Any person who suffered a violation of his right to life, his psychophysical integrity or his freedom within or outside the national territory, between 27 June 1973 and 28 February 1985, for political, ideological or union reasons is considered a victim of State terrorism in the Eastern Republic of Uruguay. Such violations must have been committed by agents of the State or persons who, though not agents, would have had the authorization, support or acquiescence of such agents. 
Uruguay, Law on Reparations, 2009, Articles 1 and 3–4.
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
At the international level, the State obligation to respect and ensure respect for international humanitarian law is found in Article 1 common to the 1949 Geneva Conventions and has acquired customary status.
[T]he general obligation to respect and ensure respect for international humanitarian law is the foundation for a number of more specific duties such as … the duty to … provide reparations for war crimes, crimes against humanity and genocide committed during internal armed conflicts. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 61.
Democratic Republic of the Congo
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted several Mai-Mai militia members of various crimes. The Court stated:
Regarding the civil parties … , the Court sentences the defendants Basele Lutula, Osumaka-Loleka, Okanga Likunda, Kipeleka Nyembo Bumba and Koti Okeke to pay, jointly with the Democratic Republic of the Congo [DRC], the equivalent in francs of 10,000 USD … to each of [the civil parties] as compensation for the harm suffered.
Regarding the victims of [the crime of] beating and wounding … , the Military Garrison Court of Kisangani sentences the above-mentioned defendants to pay, in solidum with the DRC, the equivalent in francs of 2,500 USD … to each of them as damages. 
Democratic Republic of the Congo, Military Garrison Court of Kisangani, Basele Lutula and Others case, Judgment, 3 June 2009, pp. 38–39.
Democratic Republic of the Congo
In 2010, in the Barnaba Yonga Tshopena case, the Military Garrison Court of Ituri-Bunia convicted a leader of the Front for Patriotic Resistance in Ituri (FRPI) of several war crimes. The Court stated:
147 … [T]he acts of the present case are closely related to the armed conflicts that took place in the Ituri District, in the Eastern Province of the Democratic Republic of the Congo [DRC], from 2001 to 2004. Ituri was in turmoil during that period, following armed confrontations between several armed groups and other tribal militias supported by political-military movements in this part of the republic, which was outside the control and authority of the central government of the Democratic Republic of the Congo.
148 … [T]he most virulent of these groups was the UPC [Union of Congolese Patriots] and its armed branch called FPLC [Patriotic Forces for the Liberation of Congo], along with their allies from the Ugandan army called UPDF [Uganda People’s Defence Force]. During that period, they implemented strategies aimed at exacerbating the armed conflict by launching military operations of a large scale in Ituri, most often against armed groups and militias in Hema or Gegere, but mainly the Lendu civilians and similar ethnicities, in particular the Ngiti combatants from the FRPI militia, thus spreading terror, violence and death throughout Ituri.
149 … [T]he civil parties [to the present case] argued that the government of the Democratic Republic of the Congo should ensure to restore the safety of persons and their property throughout the national territory, including in Ituri, as well as ensure the safety of all of its borders.
150 … [A]ccording to the civil parties, the central government of the Democratic Republic of the Congo, exasperated by the scale of the armed conflicts in this part of the territory and concerned about restoring its authority and peace throughout the national territory, especially in Ituri, decided, at about the end of the second trimester of 2002, with the aim of neutralizing the UPC, to establish a secret collaboration with certain armed groups and tribal militias present in Ituri which were hostile to the UPC and … the UPDF, and to strengthen their military capacities in the field.
151 … [I]n order to achieve such objective, the central government of the DRC focused on providing weapons and ammunition in abundance to armed groups and other tribal militias hostile to the UPC, in particular the FRPI Ngiti combatants, through the armed group RCD KML [Congolese Rally for Democracy-Kisangani Movement for Liberation] of Mbusa Nyamwisi, as the latter was already an ally and controlled the aerodrome of Aveba, where planes carrying weapons and ammunition landed.
152 … [T]he civil parties concluded that it was in these circumstances that the FRPI Ngiti combatants were strengthened, through the supply of weapons and ammunition by the central Government of the DRC; and that it was with such weapons and ammunition that Collectivité Chefferie de Nyankunde and Groupement Mensudzo were attacked by such combatants … in September 2002, at the same time as the assaults launched by the same combatants against the positions of the armed branch of the UPC and the bases in Nyankunde centre of their allies of the Ugandan army, the UPDF, with the aim of dislodging them.
153 … [A]ccording to the civil parties, by proceeding this way, the central government of the DRC has de facto assigned to armed groups and tribal militias such as the FRPI Ngiti combatants a specific task which was related to the government’s national duty of putting an end to the armed conflicts in Ituri and restoring peace and the effectivity of its authority through the neutralization of the UPC, … FPLC and … UPDF.
154 … [T]he civil parties thus concluded that the Congolese government failed to fulfil its primary mission of ensuring the safety of the population of Ituri, including the inhabitants of Nyankunde and Musedzo; that the central government of the DRC created a relationship of principal and agent with those armed groups and tribal militias, including the FRPI Ngiti combatants; and that such relationship, according to article 260 of the Congolese Civil Code … , irreversibly and indubitably engages the civil responsibility of the principal, that is, the central government of the DRC, for the harm caused to third parties by FRPI Ngiti combatants.
155 … [This] Military Garrison Court finds that the civil parties raised contradictory arguments with the aim of holding the Congolese State civilly responsible in the present case … [T]he contradiction [is] blatant when they state that “there is evidence about [the defendant’s] indisputable membership of the FRPI: when arrested on 5 August 2007 fleeing from the sweep operations launched by the FAR[D]C [Armed Forces of the Democratic Republic of Congo] against residual positions of the FRPI, … [he] was found in possession of a roadmap … signed by … the Chief of Staff of the FRPI, for the [the defendant’s] displacement to the [latter’s] residence in Nyavo” … However, if there were a relationship between the supposed principal, [that is], the central government of the DRC, and the agents, [that is], armed groups and tribal militias [including] the FRPI Ngiti combatants, the FARDC, which is DRC’s regular army, would not have carried out such sweep operations against the residual positions of the FRPI … [This armed group] is still present in Chefferie de WaLendu Bindi and still fights against the FARDC.
156 … [This] Military Garrison Court … dismisses the hypothesis of a principal’s civil liability pursuant to article 260 of the Congolese Civil Code … in favour of [the application of] article 258 of the same code, according to which any act committed by a person which causes damage to another obliges the one by whose fault it occurred to repair it. This view by the Court does not deviate from the individual criminal responsibility of the defendant by omission as explained above. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, §§ 147–156.
France
In 2010, in the Kaplan case, France’s Paris Administrative Court was called to rule on a matter of compensation related to art works despoiled in occupied France during World War II:
[T]he Commission for the Compensation of Victims of Despoliation received an application for compensation regarding … pieces of art that were deposited in the safe of a bank in Bordeaux in 1941. According to the inventory of the deposit, there were 151 pieces, including 78 paintings, and all of them were seized by the occupying forces on 15 March 1943, while three of them were returned after the conflict. [The applicants] allege that the commission should have assessed the amount of the damage caused by the despoliation … with regards to [the value of the property at the] date when the damage was assessed rather than its value as recognized in 1962 by the German government … [The applicants allege also that] the prime minister, by adopting [the assessment of the damage as] recommended by the commission, violated the principle of integral reparation.
[A]ccording to article 1 of the Decree [No. 99-778] of 10 September 1999: “… a commission is established before the prime minister with the mandate of reviewing individual claims submitted by victims or their legal heirs or assignees in order to receive reparation for damages following the despoliation of their property resulting from anti-Semitic legislation adopted during the Occupation by either the occupying power or the Vichy government”.
… This decree does not aim at ensuring the integral reparation of the damage, but rather at allowing the State to restore the balance destroyed by the damage in a fashion that appears to be the most exact possible and taking into account in particular the difficulties related to the long time elapsed since the facts, the diversity of the stolen property and the determination of its value. 
France, Paris Administrative Court, Kaplan case, Judgment, 25 June 2010, pp. 1–2.
Greece
In Case No. 894/2001 in 2001, Greece’s Court of Appeal of Piraeus stated:
The international responsibility of the belligerent party was considered in the past as a responsibility towards the states and not the individuals, since the latter were only exceptionally recognized as subjects of international law … However the individuals are already recognized as direct subjects of international law in many sectors (e.g. human rights) and this is the contemporary tendency in international relations … [T]herefore it should be accepted that the violation of the Regulation of Laws and Customs of War on Land, annexed to the fourth Hague Convention (19th October 1907) … creates an individual right for reparation of the victims of the violation and therefore the plaintiffs can raise against the German state an individual claim before the Greek courts. 
Greece, Court of Appeal of Piraeus, Judgment No 894/2001.
Nepal
In 2009, in the Bhandari case, Nepal’s Supreme Court described the facts of the case as follows:
The petitioners who were living in their own ancestral place have been wandering as … landless paupers and internal refugees in different parts of the country due to the conflict that started in the year 1996 following which the Maoists seized their land, house, industry, factory including movable and immovable property allegedly for professing political faith opposed by the Maoists. Since the internally displaced families had played [a] very important role during the movement of 2006/2007 they were confident that following the success of the movement, peace and order would be restored in the country resulting in the onset of New Nepal. Then movable and immovable property seized during the conflict would be easily returned and all the families would be allowed to settle in their respective settlements and make their living. As expected, the movement was successful and the Interim Constitution of Nepal, 2007, was promulgated which guaranteed fundamental rights and also inscribed that the property seized during the armed conflict would be returned. But their fate took a further downturn.
The Government of Nepal, the political parties and the respondents who were signatory to Art 5.1.8 of the Comprehensive Peace Agreement annexed to the Constitution pursuant Article 166(3) did not return the seized movable and immovable property of the petitioners. Complaints were filed a number of times for the return of the property before the political party who were supposedly called the vanguards of the New Nepal, before the Human Rights Commission and the Nepal[ese] Government. However, no initiative was taken [by] them. 
Nepal, Supreme Court, Division Bench, Bhandari case, Order, 7 January 2009, p. 1.
The Court held:
At a time following the conclusion of the peace agreement, when the parties who were in conflict have tried to re-establish the[ir] relations in a new way, a question may be raised as to whether … scratching the issue of injustice of the past would not jeopardize the already established new relations. In this, there may also be people who would like to see justice and peace as mutually opposing. True, one cannot always say that every past atrocity should be settled through judicial process and [the] payment of reparation. Several disputes that occur in the course of the conflict may be settled by dialogue and amicable settlement forged between the parties. Inconveniences of the people may be removed by infrastructure development as well. But when incidents causing damage to the life, body and property occur or where violations of humanitarian laws also take place, such matters need to be dealt with by providing rehabilitation and reparation where the nature of [the] case so demands, and in others through the judicial process. Where violations of humanitarian laws result in the destruction of life and property, in such cases if due attention is not paid to such incidents, this may give rise to growth or flourishing of impunity. The impunity in reality is a situation opposed to the rule of law. Whether in peace or war, there are fundamental principles of rule of law that unite the society, and if they are disregarded, then justification of living in such society vanishes.
Therefore, there should be no negligence in the enforcement of human rights and humanitarian laws. Rather every situation of violations of human rights laws and humanitarian laws should be brought within the legal process and taken to the right conclusion. The society should be assured of the protection that could be offered by the law. If the State tries to escape from shouldering responsibility that result from the acts causing damage to [a] person’s body and property or gross violations of humanitarian laws, then the impact caused by such incidents to the person, family or society lingers. They may at any time and in any pretext resurface in the society in the form of reaction. Therefore, until the impacts of the conflicts are satisfactorily resolved, sustainable peace seems to be impossible. For that reason also the proper management of transitional justice appears important. 
Nepal, Supreme Court, Division Bench, Bhandari case, Order, 7 January 2009, p. 10.
Peru
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether a former Peruvian president incurred criminal and civil liability for acts committed in 1991 and 1992 in the context of anti-terror operations, including the abduction of two individuals (the so-called SIE Basement Case) and the murder and injury of numerous individuals in Barrios Altos and at the so-called La Cantuta university in Lima. All of these acts were carried out by State officials whilst [the accused] was president. The Court held:
[T]o the extent that the acts before us qualify as “… gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, …” as identified in the fourth principle [of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL (2005)], the provisions of the [aforementioned] Basic Principles and Guidelines are applicable before domestic courts. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 800.
United States of America
In 2006, in the El Masri case, a civil suit in which the plaintiff claimed to have been an innocent victim of the US extraordinary rendition program and sought redress from the former Director of the Central Intelligence Agency, private corporations allegedly involved in the program, and unknown employees of both the CIA and the private corporations, the Court granted the Government’s motion to dismiss, finding that the claim of State secrets was valid. The Court stated:
[I]t is important to note that, unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake.
[T]he substance of El-Masri’s publicly available complaint alleges a clandestine intelligence program, and the means and methods the foreign intelligence services of this and other countries used to carry out the program. And, as the public declaration makes pellucidly clear, any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security.
To succeed on his claims, El-Masri would have to prove that he was abducted, detained, and subjected to cruel and degrading treatment, all as part of the United States’ extraordinary rendition program. As noted above, any answer to the complaint by the defendants risks the disclosure of specific details about the rendition argument.
[W]hile dismissal of the complaint deprives El-Masri of an American judicial forum for vindicating his claims, well-established and controlling legal principles require that in the present circumstances, El-Masri’s private interests must give way to the national interest in preserving state secrets. The United States’ motion to dismiss must therefore be granted.
It is important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint. Nor does this ruling comment or rule in any way on the truth or falsity of his factual allegations; they may be true or false, in whole or in part. Further, it is also important that nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition programs; it is not intended to do either. In times of war, our country, chiefly through the Executive Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit and the privilege is validly invoked.
Finally, it is worth noting that putting aside all the legal issues, if El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy. Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch. 
United States, District Court for the Eastern District of Virginia, El Masri case, Judgment, 12 May 2006.
Bosnia and Herzegovina
In 2006, in its oral pleadings before the ICJ in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), Bosnia and Herzegovina stated:
1. the basic principle, enunciated by the [Permanent Court of International Justice] in the Factory at Chorzów case, “is that reparation must, as 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 has not been committed”; this basic principle is incorporated in Article 31 of the 2001 Articles of the International Law Commission [ILC];
2. pursuant to the provisions of Article 34 of those same Articles, “[f]ull reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction …”;
3. inasmuch as making restitution means “to re-establish the situation which existed before the wrongful act was committed” – this being a quotation from the ILC – it constitutes a prime means of reparation, since it is, by definition, the one best suited to effectively ensuring full redress for the injury sustained;
4. however, to the extent that restitutio in integrum proves materially impossible or “out of all proportion to the benefit deriving from restitution instead of compensation”, reparation may take the form of compensation involving “payment of a sum corresponding to the value which a restitution in kind would bear”;
5. and lastly, “[t]he State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation”. 
Bosnia and Herzegovina, Oral pleadings before the ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), 7 March 2006, Verbatim Record CR 2006/11, pp. 29–30, § 8.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated:
Since March 1990, Chile’s democratic governments have been committed to taking legal and administrative measures to establish the truth and provide justice and reparation for the victims of human rights violations committed under the military regime. Such measures began to be implemented virtually from the moment President Patricio Aylwin took office, through the work carried out in 1990 by the National Commission on Truth and Reconciliation and the publication of its report in February 1991. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 99.
Chile also stated:
Right to effective redress, compensation and rehabilitation for the victims of torture and other ill-treatment
141. The right to fair and adequate compensation for the victims of torture is guaranteed under the general provisions and principles of Chilean legislation. Every offence is followed up by criminal proceedings in order to investigate the punishable act and punish the persons responsible for it, as well as civil proceedings to provide redress for the civil consequences of the offence. Such civil proceedings, one of the purposes of which may be to seek compensation for damage caused, may originate in the criminal proceedings themselves. In conformity with the general provisions of Chilean law, the victim of torture, certain family members and the heirs of a person who has suffered torture and died as a consequence may initiate civil proceedings to seek compensation.
Redress for victims of political imprisonment and torture during the military regime
142. The President’s proposal on human rights “No tomorrow without yesterday” expressly states that Chile owes a debt to those persons who suffered unfair and humiliating deprivation of liberty during the military regime, often accompanied by torture, and who have not been recognized as the victims of repression nor been granted any compensation.
National Commission on Political Prisoners and Torture
143. As a result of the President’s proposal, the National Commission on Political Prisoners and Torture was established as an advisory body to the President. Its functions were (a) to classify persons who suffered deprivation of liberty and torture on political grounds during the period between 11 September 1973 and 10 March 1990, and (b) to propose to the President the conditions, characteristics, forms and methods of compensation that could be granted to persons recognized as political prisoners or victims of torture who had not already received any benefits by way of compensation on those grounds.
144. The Commission launched its activities on 11 November 2003 in the Metropolitan Region, and on 10 December in the other regions and in Chilean consulates abroad. One year later it issued a report describing the historical context in which the torture had taken place, the attitude of the different State bodies to this practice, the different periods and types of political imprisonment and torture in Chile, the methods of torture used, places of detention, the profile of the victims and the effects of this abuse on them. In a year of activity the Commission received testimony from 35,868 people, of whom 28,000 residents in Chile and abroad were classified as victims; the remaining 7,000 testimonies were reviewed by the Commission, which classified a further 1,204 persons as victims. All the victims recognized by the Commission receive an annual pension and benefits from the Programme of Compensation and Comprehensive Health Care (PRAIS). 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, §§ 141–144.
[footnotes in original omitted]
Croatia
In its views and comments on the 1997 Draft Basic 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, Croatia stated:
It is clear that the right to claim reparation for violations of human rights and international humanitarian law should be given primarily to the direct victim; in cases where the direct victim is unable to claim or precluded from claiming reparation, such right should be enjoyed by the descendants of the direct victim, and subsidiarily to the persons closely connected with the direct victim. 
Croatia, Views and Comments on the note and revised Draft Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of [Gross] Violations of Human Rights and International Humanitarian Law, 19 August 1997, UN Doc. E/CN.4/1998/34, 22 December 1997, § 6.
El Salvador
In 2009, in its written replies to the Committee against Torture concerning its second periodic report, El Salvador stated:
4. Indicate:
c) If a reparation program for victims [persons disappeared during the armed conflict of 1980 to 1992, including children] has been implemented; and if not the reasons for this.
d) If a comprehensive program for the search of disappeared persons exists.
10. With regards to subparagraphs c) and d), there is, to date, no comprehensive program for reparation to victims, favouring disappeared children; however, in the context of the work of the Inter-institutional Tracing Commission, psychological attention has been given to the found children and to their adoptive and biological families; as well as social assistance to these children in accordance with their needs (medical care, judicial and financial assistance, family reunion workshops, communication with their families abroad, among others).
11. On this point, it should be mentioned that given the new government vision, it has included as part of its 2009–2014 Government Program in the framework of Political Reform – Human Rights – a strategic guideline on “justice, reparation and truth” … [The latter will] establish the “Promotion and guarantee of a justice, truth and reparation policy for current and past grave violations of human rights. A comprehensive reparation policy – material and moral – will be adopted for victims of these violations”, as well as a “ … State reparation program for victims of violations of human rights with a legal basis, State resources and the cooperation of the international community”. In the context of Social Reform … Policy for Childhood and Adolescence … [the government has] a commitment to … [grant] “social support to families when their sons or daughters are in a difficult situation or at risk, such as: … 3) aid to families of sons and daughters disappeared during the war, among others”; and the commitment of the government of President Mauricio Funes Cartagena to implement the above-mentioned strategic guidelines. 
El Salvador, Written replies by the Government of El Salvador to the list of issues formulated by the Committee against Torture in connection with its consideration of the second periodic report of El Salvador, 12 October 2009, UN Doc. CAT/C/SLV/Q/2/Add.1, submitted 1 October 2009, Question 4(c–d), §§ 10 and 11.
El Salvador
In 2009, in its written replies to the Committee on the Rights of the Child concerning its third and fourth periodic reports, El Salvador stated in regard to the progress made and the current situation of the search for children who disappeared during the internal armed conflict:
62. … El Salvador, through its Minister for Foreign Affairs, has established an official dialogue with the Association for the Search for Disappeared Children, in furtherance of its obligations to comply with the judgement [of the Inter-American Court of Human Rights] in the case [on the disappearance] of the Serrano Cruz sisters and with the Court’s demands in other cases of disappeared children. It should be borne in mind that the Serrano Cruz judgement, although related to a specific case, contemplates a programme of reparation for all victims of enforced disappearance in El Salvador, including the creation of the aforementioned search commission, but also a webpage and the establishment of a genetic database. In the particular case of the Serrano sisters, progress has been made in medical care and in the approval of psychosocial attention by an expert known to the Serrano Cruz family. El Salvador wishes to inform the Committee of its determination to comply with these pending obligations in good faith and to the extent of its possibilities.
63. At the previously mentioned hearing of 6 November 2009 [on five cases of disappeared children, held in Washington, D.C.] before the Inter-American Commission on Human Rights, El Salvador radically altered its former positions regarding the problem of children who disappeared during the armed conflict. It recognized the existence of a pattern of child disappearances during that period, fully acknowledged the rights of victims to truth, justice and reparation, and promised to endeavour to discharge in good faith its international human rights obligations in this matter.
64. In connection with that hearing, the Office of the Public Prosecutor of the Republic officially informed the Ministry of Foreign Affairs of its decision to conduct a criminal investigation into five cases of disappeared children which had not been adequately dealt with in the past …
65. These changes hold out the prospect of a historic breakthrough … in honouring and providing redress to the victims. 
El Salvador, Written replies by the Government of El Salvador to the list of issues prepared by the Committee on the Rights of the Child in connection with the consideration of the third and fourth periodic reports of El Salvador, UN Doc. CRC/C/SLV/Q/3–4/Add.1, submitted 10 December 2009, Question 13, §§ 62–65.
El Salvador
In 2010, in its written replies to the Human Rights Committee concerning its sixth periodic report, El Salvador stated in response to a question on the recommendation to review the General Amnesty for Consolidation of Peace Act of 1993:
As the State has already mentioned to the Committee against Torture, since the new Government assumed its functions on 1 June 2009, … the State of El Salvador has recognized the rights of victims of violations of human rights to know the truth, to have access to justice and to receive adequate reparations. 
El Salvador, Written replies by the Government of El Salvador to the list of issues formulated by the Human Rights Committee in connection with its consideration of the sixth periodic report of El Salvador, UN Doc. CCPR/C/SLV/Q/6/Add.1, 21 September 2010, § 5.
El Salvador also stated:
11. With regard to the reparation of victims of serious violations of human rights that occurred in the context of internal armed conflict [1980–1992], the State recognizes that this obligation has not been fulfilled despite the recommendations that have been emitted by several international bodies. As a result of the above, in the context of the new Government of the Republic, … the State has decided to advance in the process of implementation of this obligation. In this sense, Executive Decree No. 57 of 5 May 2010, creating the “National Commission for Reparation to Victims of Grave Violations of Human Rights that occurred in the context of the internal armed conflict”, was approved.
12. This Commission, composed of high officials of the current Government, will have the mandate of designing a comprehensive collective reparations program with a working procedure that will necessarily include the participation of victims of serious violations of human rights that occurred during the internal armed conflict through civil society organizations representing them. 
El Salvador, Written replies by the Government of El Salvador to the list of issues formulated by the Human Rights Committee in connection with its consideration of the sixth periodic report of El Salvador, UN Doc. CCPR/C/SLV/Q/6/Add.1, 21 September 2010, §§ 11–12.
On the question of the search for persons, El Salvador further stated:
61. … [I]n the context of the current Government of El Salvador (which assumed its functions on 1 June 2009), the state has recognized that practices such as the enforced disappearance of persons took place in the context of the internal armed conflict, causing profound suffering to the affected families.
In addition, it has recognized the right of the families of victims of enforced disappearance to know the truth on the whereabouts of their loved ones, to have access to a judicial remedy and to obtain reparations in accordance with the standards of International Human Rights Law applicable to El Salvador.
62. This recognition of state responsibility materialized in a public act of reparation that met the internationally recognized standards for this type of state act. It was presided by the head of the Executive Branch, …, Constitutional President of El Salvador, on the occasion of the 18th Anniversary of the Peace Agreement on 16 January 2010. In this event, the President, on behalf of the Salvadoran State, asked for forgiveness to those who were victims of grave violations of human rights during the past internal conflict, due to acts like the enforced disappearance of persons. This act of pardon was extended to the families that have not been able to finish their grieving process due to the unknown whereabouts of their loved ones and to not having had the protection of the [State’s] institutions. During the same event, the President of El Salvador signed an Executive Decree for the creation of the “National Commission for Tracing Boys and Girls Missing during the internal armed conflict” in accordance with the standards required by the Inter-American Court of Human Rights; he also announced the creation of a “National Commission for Reparation to victims of grave violations of human rights that occurred in the context of the internal armed conflict”, which has been recently established by an Executive Decree in May 2010. 
El Salvador, Written replies by the Government of El Salvador to the list of issues formulated by the Human Rights Committee in connection with its consideration of the sixth periodic report of El Salvador, UN Doc. CCPR/C/SLV/Q/6/Add.1, 21 September 2010, §§ 61–62.
On the issue of the search for children, El Salvador also stated:
[O]n 18 January 2010, Executive Decree No. 5, giving legal validity to the current “National Commission for Tracing Boys and Girls Missing during the internal armed conflict”, was published in the Official Journal. … This Commission, … which will be instituted in July 2010, will have within its functions … promoting the right of victims to have access to justice, among others. 
El Salvador, Written replies by the Government of El Salvador to the list of issues formulated by the Human Rights Committee in connection with its consideration of the sixth periodic report of El Salvador, UN Doc. CCPR/C/SLV/Q/6/Add.1, 21 September 2010, § 67.
France
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, France stated:
As the Permanent Court of International Justice stated in a famous passage: “The essential principle contained in the actual notion of an illegal act … is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” [Permanent Court of International Justice, Factory at Chorzów, Judgment No. 13, 13 September 1928, Series A, No. 17, p. 47]. 
France, Written statement submitted to the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 30 January 2004, § 63.
Germany
In 1995, in reply to a question from members of the Lower House of Parliament with respect to reparation payments to Greek victims of the German National Socialist regime, the German Government stated:
The … alleged claims of Greece with regard to Germany are claims for reparation … After 50 years have passed since the end of the war and [after] decades of peaceful, trustingly and fruitful co-operation of the Federal Republic of Germany with the international community of States, the issue of reparations has lost its legitimacy. Since the end of the Second World War, Germany has made reparations to a high degree, which, according to general public international law, the States concerned should use to compensate their nationals … Additionally, reparations [made] 50 years after the end of hostilities would constitute an exception without precedence in the practice of public international law. 
Germany, Lower House of Parliament, Response by the federal government to a question from members of parliament, Payments in compensation to Greek victims of the National Socialist regime, BT-Drucksache 13/2878, 7 November 1995.
Germany
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Gaza War”, Germany’s Federal Government wrote:
b) Does the Federal Government consider it necessary to require Israel to make reparation for Gaza in order to repair the damage caused by the war?
In principle a State’s responsibility under international law is only engaged in case the State acted contrary to international law. In this respect, reference is made to the answers to questions 2 and 4. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Dr. Norman Paech, Monika Knoche, Wolfgang Gehrcke, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 16/12087, 27 February 2009, p. 6.
The Federal Government further stated:
2. a) Is it correct that the Federal Government still considers the Gaza-Strip as territory occupied by Israel?
b) If so, does the Federal Government share the view that the conflict between Israel and the Palestinians constitutes an international armed conflict?
c) If not, why not?
On 12 September 2005, Israel withdrew from the Gaza Strip after 38 years. However, it continues to exercise control over the borders and airspace of the Gaza Strip. The Federal Government is thus of the view that the civilian population in the Palestinian territories occupied by Israel is protected by international humanitarian law, in particular the [1949] Geneva Convention IV relative to the Protection of Civilian Persons in Time of War. This remains the case as long as Israel is exercising effective control over the Gaza Strip as occupying power. Therefore, in the Federal Government’s view, the provisions of the Geneva Convention IV relative to the Protection of Civilian Persons in Times of War apply to the armed confrontations between Israel and Hamas in Gaza. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Dr. Norman Paech, Monika Knoche, Wolfgang Gehrcke, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 16/12087, 27 February 2009, p. 3.
The Federal Government also stated:
4. How does the Federal Government justify its position that despite the allegations of independent international observers that Israel committed war crimes and human rights violations during the recent war in the Gaza Strip, the creation of an International Commission to investigate such allegations is to be blocked?
The Federal Government has always emphasized that fundamental rules of international humanitarian law must also be respected in Gaza … An investigation commission of the United Nations which examines attacks against UN installations and operations during the Gaza war began its work on 12 February 2009 and will report to the Secretary General of the United Nations after completing its investigations. The Federal Government agrees with its partners in the European Union that the result of these investigations should not be pre-empted. This common position is also reflected in the Council conclusions of 26 and 27 January 2009: “The Council reminds all parties to the conflict to fully respect human rights and comply with their obligations under international humanitarian law and will follow closely investigations into alleged violations of international humanitarian law.” 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by the Members Dr. Norman Paech, Monika Knoche, Wolfgang Gehrcke, further Members and the Parliamentary Group DIE LINKE, BT-Drs. 16/12087, 27 February 2009, p. 4.
Indonesia
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, Indonesia stated:
Israel is under legal obligations to restore land and private properties forcibly seized for the construction of the Wall, to pay full compensation, to annul all measures enacted regarding the Wall, [and] to cease restriction on freedom of movement in the Occupied Palestine Territory, including East Jerusalem. 
Indonesia, Written statement submitted to the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 29 January 2004, p. 9.
Jordan
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, Jordan stated:
5.288 There is no doubt that in international law the breach of an international obligation carries with it the obligation to make adequate reparation.
5.289 Where the breaches of international law are not merely breaches occurring in what may be termed a “civil” context (such as the expropriation of property without compensation) but occur in a context which is delictual, involving, in particular, the use of force in breach of the United Nations Charter and rules of international law having the character of ius cogens, the nature of the reparation to be made will need to reflect the more serious basis of liability.
5.290 Moreover, where a breach of international law has been accompanied by a deliberate intention to cause harm to those affected, the normal rule that reparation is only due in respect of the normal and reasonably foreseeable consequences of an unlawful act is extended so as to cover also those deliberately intended consequences. …
5.296 Where the primary remedy for the unlawful act (restitution) is not available, the principle of effective reparation requires extensive compensation. Against the background of the requirement that reparation must be “full” and that the injury for which reparation is due “includes any damage, whether material or moral, caused by the internationally wrongful act of a State (Article 31.2), Article 36 of the [International Law Commission’s] Articles on State Responsibility provides:
“1. The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution.
2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.” 
Jordan, Written statement submitted to the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 30 January 2004, §§ 5.288–5.290 and 5.296.
[emphasis in original]
Kuwait
According to the Report on the Practice of Kuwait, it is Kuwait’s opinio juris that States that cause damage to the environment are under a duty to remedy such damage. 
Report on the Practice of Kuwait, 1997, Chapter 4.4.
Malaysia
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, Malaysia stated:
Israel is obliged to make reparation to the Palestinian Authority, as well as to the individual victims concerned, for all the internationally wrongful acts committed by the construction and maintenance of the Wall. 
Malaysia, Written statement submitted to the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 30 January 2004, p. 56.
In its oral pleadings, Malaysia stated:
On the one hand, Israel is under an obligation to put an end to the unlawful situation; on the other hand, it is required to make reparation for the damage caused by construction of the Wall. This leads to the application of the primary principle in the matter, namely that of restitutio in integrum, which involves the destruction of the Wall and the restoration of the status quo ante. 
Malaysia, Oral pleadings before the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 23 February 2004, Verbatim Record CR 2004/2 (official translation), p. 56.
Peru
In 2004, in its fourth periodic report to the Committee against Torture, Peru stated:
120. The TRC [Truth and Reconciliation Commission] laid down the duty and right to compensate the victims of violence in the following terms:
According to international human rights law, the responsibility of the State arises when the latter fails to fulfil its primary obligation to respect and ensure respect for internally recognized human rights. This obligation includes … the duty to provide compensation for victims.
121. Insofar as, according to the TRC, the Peruvian State has the duty to offer due compensation to all victims of violence, including torture victims, the TRC recommended a Comprehensive Plan for Reparations, the general objective of which is: “to repair and compensate the violation of human rights as well as social, moral and material losses or damage suffered by victims as a result of internal armed conflict.” This plan makes provision for various types of reparations …
Comprehensive Plan for Reparations includes torture victims:
Generally speaking, the TRC considers that victims include … all persons or groups of persons who for the purposes of or on account of the internal armed conflict which the country underwent between May 1980 and November 2000 have been subjected to any acts or omissions that violate the rules of international human rights law, such as: enforced disappearance, abduction, extrajudicial execution, assassination, enforced displacement, arbitrary arrest and violation of due process, enforced recruitment, torture, rape, and wounds, injuries or death inflicted in the course of attacks that violate international humanitarian law.
123. In order to follow up the TRC’s recommendations and to coordinate the implementation of public policies specifically aimed at the fulfilment of peace, reconciliation and collective reparation goals, the High Level Multisectoral Committee was set up with responsibility for monitoring State actions and policies in the areas of peace, collective reparation and national reconciliation. Within one year of the issue of the TRC’s final report, the High Level Committee found that a number of steps had been taken to achieve collective reparations, including the following: approval of the Framework Programme of State Action in the Area of Peace, Reparation and National Reconciliation; the Supreme Decree extending the benefits of comprehensive health insurance to the victims of internal conflict suffering from mental health problems; and the Ministerial Decision setting up a list of victims’ organizations. 
Peru, Fourth periodic report to the Committee against Torture, 27 May 2005, UN Doc. CAT/C/SR.697, submitted 15 November 2004, §§ 120–121 and 123; see also § 177–179.
[Emphasis in original; footnotes in original omitted]
Saudi Arabia
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, Saudi Arabia stated regarding the obligation to make reparation arising from an internationally wrongful act:
The Separation Wall is an international wrongful act by the occupying Power and thus entails its international responsibility. There are legal consequences. The first obligation is to cease performance of the internationally wrongful act, not to repeat it, and to make full reparation. Reparation includes restitution, which in this case requires destruction of the Separation Wall, compensation and satisfaction. 
Saudi Arabia, Written statement submitted to the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 30 January 2004, pp. 22–23.
Spain
In 2008, in its written replies to the Human Rights Committee concerning its fifth periodic report, Spain stated with regard to the reparation measures that have been granted to victims of torture: “[N]ote should be taken of the recent adoption of Act. No. 52/2007 of 26 December 2007, which recognizes and extends rights and introduces measures in favour of victims of persecution or violence during the civil war and the dictatorship”. 
Spain, Written replies by the Government of Spain to the Human Rights Committee concerning the list of issues raised in connection with the fifth periodic report of Spain, 14 October 2008, UN Doc. CCPR/C/ESP/Q/5/Add.1, Question 7(d), p. 20.
Switzerland
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 [2001] “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).
Thus the conduct of private security companies mandated by states can potentially be ascribed to a state under international law.
While the “Draft Articles” of the ILC describe state responsibility towards other states or the international community, individuals also have the possibility to bring before certain national and international forums a state which has violated certain rules of international law (international humanitarian law or human rights). However the investigation of the different national and regional possibilities to call a state to account on the basis of international law is beyond the scope of this report. 
Switzerland, Report by the Swiss Federal Council on Private Security and Military Companies, 2 December 2005, Section 5.5.1, p. 48.
[footnote in original omitted; emphasis in original]
Switzerland
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 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. 
Switzerland, Federal Department of Foreign Affairs, Switzerland’s conceptual framework for dealing with the past, 2006.
Switzerland
In 2010, in response to a question by a member of the National Council, Switzerland’s Federal Council wrote:
Independently of the right to justice, and in line with Switzerland's commitment to peace and reconciliation in Sri Lanka, the Federal Council encourages the Sri Lankan government to address the recent past of the country, in accordance with the three other “Joinet principles” adopted by the Commission on Human Rights of the UN: the right to know, the right to reparation and the guarantee of non-recurrence. 
Switzerland, National Council, Response by the Federal Council to Interpellation No. 10.3457, 8 September 2010, p. 2.
Switzerland
In 2011, Switzerland’s Federal Council issued a communiqué on the continuation of measures promoting peace and human security 2012–2016, which stated:
[Switzerland] will concretely support societies emerging from armed conflicts so that a holistic approach to dealing with the past and to fighting impunity is put in place, combining measures such as fact-finding and truth commission, special courts, reparation and rehabilitation programmes for victims and reform of security institutions to strengthen guarantees of non-repetition. … With regard to the fight against impunity, Switzerland will refer in its action to relevant international principles that provide a strategic framework of reference for taking measures focused on the rights of victims and the obligation of States in the area of truth, justice, reparation and guarantees of non-repetition of violations (“Joinet principles”). 
Switzerland, Federal Council, Communiqué on the continuation of measures promoting peace and human security 2012–2016, 29 June 2011, pp. 5909–5910.
Switzerland
In 2012, in a statement before the UN Security Council during a debate on women, peace and security, Switzerland’s chargé d’affaires a.i. stated:
We strongly encourage more systematic measures to enhance protection and prevent the recurrence of sexual violence through transitional justice approaches. These measures should combine the fight against impunity as well as the recognition of the rights of victims – for example through appropriate reparations[.] 
Switzerland, Statement by the chargé d’affaires a.i. of Switzerland before the UN Security Council during a debate on women, peace and security, 23 February 2012.
Switzerland
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 states:
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. 
Switzerland, Federal Department of Foreign Affairs, Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000), 2013, p. 5.
The Action Plan also states:
GOAL 3
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.
Measures
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). 
Switzerland, Federal Department of Foreign Affairs, Women, Peace and Security: National Action Plan to implement UN Security Council Resolution 1325 (2000), 2013, pp. 16–17.
[emphasis in original; footnote in original omitted]
Switzerland
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. 
Switzerland, Statement by the chargé d’affaires of Switzerland before the UN Security Council during a debate on the protection of civilians in armed conflict, 19 August 2013.
Uganda
In the Annexure to the Agreement on Accountability and Reconciliation signed between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement in 2007, the contracting Parties,
[h]aving signed the Principal Agreement by which the parties committed themselves to implementing accountability and reconciliation with respect to the conflict;
[decided that t]he Government shall by law establish a body to be conferred with all the necessary powers and immunities [to inquire into the past and related matters], whose functions shall include:
(j) to make recommendations for the most appropriate modalities for implementing a regime of reparations, taking into account the principles set out in the Principal Agreement. 
Annexure to the Agreement on Accountability and Reconciliation signed between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement (LRA/M) on 29 June 2007, Juba, 19 February 2008, Preamble, Article 4(j).
The Annexure also includes a title “Reparations”, which provides:
16. The Government shall establish the necessary arrangements for making reparations to victims of the conflict in accordance with the terms of the Principal Agreement.
17. Prior to establishing arrangements for reparations, the Government shall review the financial and institutional requirements for reparations, in order to ensure the adoption of the most effective mechanisms for reparations.
18. In reviewing the question of reparations, consideration shall be given to clarifying and determining the procedures for reparations. 
Annexure to the Agreement on Accountability and Reconciliation signed between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement (LRA/M) on 29 June 2007, Juba, 19 February 2008, Articles 16–18.
United States of America
In 2001, a draft concurrent resolution was put before the US Congress for it to call upon the Government of Japan to “immediately pay reparations to the victims of [sexual enslavement of young women during colonial occupation of Asia and the Pacific Islands during the Second World War, known to the world as ‘comfort women’]”. 
United States, House of Representatives, 107th Congress, 1st Session, Concurrent Resolution 195, HCON 195 IH, 24 July 2001.
United States of America
In 2005, the US Department of Justice submitted a Statement of Interest of the United States to the US District Court for the Eastern District of New York prior to that court’s consideration of Agent Orange Product Liability Litigation (The Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical Company, et al). That statement reiterated the US position that no rule of international law barred the use of chemical herbicides in war generally nor barred the destruction of crops intended for use by enemy forces. With regard to reparations, it stated:
[I]n light of the traditional rule of international law that war reparations are the subject of government-to-government negotiations, and not individual claims, recognizing such federal common law claims would be truly extraordinary.
War reparations include “all the loss and damage to which … Governments and their nationals have been subjected as a consequence of the war imposed upon them.” Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 275 (D.NJ. 1999), quoting The Versatile Treaty, art. 231. See also Black’s Law Dictionary at 1325 (8th ed. 2004) (defining reparations as “[c]ompensation for an injury or wrong, esp. for wartime damages or breach of an international obligation”). Claims based upon the United States’ use of chemical herbicides as a tool of war readily fall within the scope of war reparations claims.
Yet such war reparations claims have traditionally been, and as a matter of customary international law are, the subject of government-to-government negotiations, as opposed to private lawsuits. “Under international law claims for compensation by individuals harmed by war-related activity belong exclusively to the state of which the individual is a citizen.” Burger-Fischer. 65 F. Supp. at 273. Thus, “[l]ike other claims for violation of an international obligation, a state’s claim for a violation that caused injury to rights or interests of private persons is a claim of the state and is under the state’s control … Any reparation is, in principle, for the violation of the obligation to the state, and any payment made is to the state.” Restatement (3d) Foreign Relations § 902, comment i (emphasis added); cf Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 416 (2003) (“[historically, wartime claims against even nominally private entities have become issues in international diplomacy”).
This latter point undermines any assertion that private claims for war reparations are as widely accepted as the eighteenth century paradigms discussed in Sosa Sosa v. Alvarez-Machain, US Supreme Court, 2004]. To the contrary, it establishes precisely the opposite – as a matter of international law war reparations claims such as plaintiffs’ belong to states and not to individuals. To jettison this legal principle in order to recognize individual causes of actions for plaintiffs’ claims would run counter to Sosa’s admonition that the practical consequences of recognizing new causes of action “must” inform the Court’s judgment in crafting federal common law. In sum, the determination of whether, when, and how to pay reparations for conduct of the United States’ Armed Forces should stay where it has been for the past two-hundred-plus years by virtue of both the Constitution and principles of customary international law – with the Political Branches of government. For this reason as well, the Court should not recognize any federal common law cause of action in this case. 
United States, Department of Justice, Statement of Interest of the United States submitted to the US District Court for the Eastern District of New York, In re: Agent Orange Product Liability Litigation (The Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical Company, et al), 12 January 2005, pp. 42–43.
United States of America
In 2005, in its second periodic report to the Committee Against Torture, the United States stated that it “continues to hold the view that in addition to monetary compensation, States should take steps to make available other forms of remedial benefits to victims of torture, including medical and psychiatric treatment as well as social and legal services”. 
United States, Second periodic report to the Committee Against Torture, 13 January 2006, UN Doc. CAT/C/48/Add.3/Rev.1, submitted 6 May 2005, p.27, § 83.
UN General Assembly
In a resolution adopted in 1993 on the conflict in 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”. 
UN General Assembly, Res. 48/153, 20 December 1993, § 13, adopted without a vote.
UN General Assembly
In a resolution adopted in 1994 on the conflict in 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”. 
UN General Assembly, Res. 49/196, 23 December 1994, § 13, voting record: 150-0-14-21.
UN General Assembly
In a resolution adopted in 1996 on Afghanistan, the UN General Assembly urged the Afghan authorities “to provide efficient and effective remedies to the victims of grave violations of human rights and of accepted humanitarian rules”. 
UN General Assembly, Res. 51/108, 12 December 1996, § 11, adopted without a vote.
UN General Assembly
In 2001, the UN General Assembly adopted a resolution entitled “Responsibility of States for internationally wrongful acts”, to which the 2001 ILC Draft Articles on State Responsibility, and thus Article 31 entitled “Reparation”, was annexed. In the resolution, the General Assembly took note of the Draft Articles and commended them to the attention of governments “without prejudice to the question of their future adoption or other appropriate action”. 
UN General Assembly, Res. 56/83, 12 December 2001, § 3 and Annex, adopted without a vote.
UN General Assembly
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly stressed:
… that national legal systems should ensure that the victims of [torture or other cruel, inhuman or degrading treatment or punishment] obtain redress, are awarded fair and adequate compensation and receive appropriate social and medical rehabilitation, and encourages the development of rehabilitation centres for victims of torture. 
UN General Assembly, Res. 58/164, 22 December 2003, § 2, adopted without a vote.
UN General Assembly
In a resolution adopted in 2004 during an emergency special session on the Advisory Opinion of the ICJ on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, including in and around East Jerusalem, the UN General Assembly:
Having received with respect the advisory opinion of the Court on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, rendered on 9 July 2004,
Noting in particular that the Court replied to the question put forth by the General Assembly in resolution ES-10/14 as follows:
“B. Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion;
“C. Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem;
2. Demands that Israel, the occupying Power, comply with its legal obligations as mentioned in the advisory opinion. 
UN General Assembly, Res. ES-10/15, 20 July 2004, preamble and § 2, voting record: 150-6-10-25.
UN General Assembly
In a resolution adopted in 2004 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly:
Demands that Israel, the occupying Power, comply with its legal obligations under international law, as mentioned in the advisory opinion rendered on 9 July 2004 by the International Court of Justice and as demanded in resolution ES-10/15 and resolution ES-10/13 of 21 October 2003, and that it cease the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, dismantle forthwith the structure situated therein, repeal or render ineffective all legislative and regulatory acts relating thereto, and make reparation for all damage caused by the construction of the wall. 
UN General Assembly, Res. 59/124, 10 December 2004, § 8, voting record: 149-7-22-13.
UN General Assembly
In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that national legal systems must ensure that victims of torture and other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate social and medical rehabilitation, urges Governments to take effective measures to this end, and in this regard encourages the development of rehabilitation centres. 
UN General Assembly, Res. 59/182, 20 December 2004, § 9, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly:
Demands that Israel, the occupying Power, comply with its legal obligations under international law, as mentioned in the advisory opinion rendered on 9 July 2004 by the International Court of Justice and as demanded in resolution ES-10/15 and resolution ES-10/13 of 21 October 2003, and that it immediately cease the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, dismantle forthwith the structure situated therein, repeal or render ineffective all legislative and regulatory acts relating thereto, and make reparation for all damage caused by the construction of the wall. 
UN General Assembly, Res. 60/107, 8 December 2005, § 8, voting record: 148-7-17-19.
UN General Assembly
In a resolution adopted in 2005 entitled “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”, the UN General Assembly:
Affirming the importance of addressing the question of remedies and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law in a systematic and thorough way at the national and international levels,
Recognizing that in honouring the victims’ right to benefit from remedies and reparation, the international community keeps faith with the plight of victims, survivors and future human generations. 
UN General Assembly, Res. 60/147, 16 December 2005, preamble, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that national legal systems must ensure that victims of torture and other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate social and medical rehabilitation, urges States to take effective measures to this end, and in this regard encourages the development of rehabilitation centres. 
UN General Assembly, Res. 60/148, 16 December 2005, § 9, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the situation in Afghanistan, the UN General Assembly:
Continues to emphasize the necessity of investigating allegations of current and past violations of human rights and of international humanitarian law, including violations committed against persons belonging to ethnic and religious minorities, as well as against women and girls, [and] of facilitating the provision of efficient and effective remedies to the victims. 
UN General Assembly, Res. 61/18, 28 November 2006, § 19, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the commemoration of the two-hundredth anniversary of the abolition of the transatlantic slave trade, the UN General Assembly:
Recalling that slavery and the slave trade were declared a crime against humanity by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa, from 31 August to 8 September 2001,
Recalling paragraphs 98 to 106 of the Durban Declaration, and emphasizing, in particular, the importance of the “provision of effective remedies, recourse, redress, and compensatory and other measures at the national, regional and international levels”, aimed at countering the continued impact of slavery and the slave trade. 
UN General Assembly, Res. 61/19, 28 November 2006, preamble, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly:
Demands that Israel, the occupying Power, comply with its legal obligations under international law, as mentioned in the advisory opinion rendered on 9 July 2004 by the International Court of Justice and as demanded in resolutions ES-10/15 of 20 July 2004 and ES-10/13 of 21 October 2003, and that it immediately cease the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, dismantle forthwith the structure situated therein, repeal or render ineffective all legislative and regulatory acts relating thereto, and make reparation for all damage caused by the construction of the wall, which has gravely impacted the human rights and the socio-economic living conditions of the Palestinian people. 
UN General Assembly, Res. 61/119, 14 December 2006, § 12, voting record: 157-9-14-12.
UN General Assembly
In a resolution entitled “Establishment of the United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory” adopted in 2006 during an emergency special session, the UN General Assembly:
Guided by the principles enshrined in the Charter of the United Nations and the rules and principles of international law, including international humanitarian law and human rights law,
Recalling also its relevant resolutions, including the resolutions of its tenth emergency special session on illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory,
Recalling further the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, and recalling in particular the Court’s reply to the question put forth by the General Assembly in resolution ES-10/14 of 8 December 2003, as set forth in the dispositif of the advisory opinion,
Recalling in this regard the Court’s conclusion that, inter alia, “Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem”,
Reaffirming its resolution ES-10/15 of 20 July 2004 entitled “Advisory opinion of the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory, including in and around East Jerusalem”,
Recalling the request made in resolution ES-10/15 for the Secretary-General to establish a register of damage caused to all natural or legal persons concerned in connection with paragraphs 152 and 153 of the advisory opinion,
Noting in this connection the Court’s conclusion whereby, inter alia:
Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction,
Recognizing the necessity of accurately documenting the damage caused by the construction of the wall for the purpose of fulfilling the obligation to make the above-mentioned reparations, including restitution and compensation, in accordance with the rules and principles of international law, and noting that the act of registration of damage, as such, does not entail, at this stage, an evaluation or assessment of the loss or damage caused by the construction of the wall,
1. Reaffirms its resolution ES-10/15 entitled “Advisory opinion of the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory, including in and around East Jerusalem”, and reiterates the demands made therein, inter alia, the demand that Israel, the occupying Power, comply with its legal obligations as mentioned in the advisory opinion;
3. Establishes the United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory:
(a) To serve as a record, in documentary form, of the damage caused to all natural and legal persons concerned as a result of the construction of the wall by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem;
4. Decides to set up an office of the Register of Damage, which will be:
(a) Responsible for the establishment and comprehensive maintenance of the Register of Damage;
(b) Composed of a three-member Board and a small secretariat …
(c) A subsidiary organ of the General Assembly operating under the administrative authority of the Secretary-General;
6. Decides that the responsibilities assumed by the Board of the Office of the Register of Damage shall be as follows:
(a) The Board shall have overall responsibility for the establishment and maintenance of the Register of Damage;
(c) The Board shall determine the eligibility criteria, bearing in mind varying circumstances with regard to the title and residency status of the claimants, for the inclusion of damages and losses caused in the Register of Damage with an established causal link to the construction of the wall;
(d) The Board shall, guided by the relevant findings of the advisory opinion, general principles of international law and principles of due process of law, also determine the criteria of damage and the procedure for the collection and registration of damage claims;
8. Decides that the secretariat of the Office of the Register of Damage shall provide substantive, technical and administrative support for the establishment and maintenance of the Register of Damage by undertaking, inter alia, the following functions:
(a) Designing the format of the damage claims;
(b) Administering a public awareness programme to inform the Palestinian public about the possibility of and the requirements for filing a damage claim for registration, including an extensive community outreach programme to explain the purpose of the Register of Damage and provide guidance on how to fill out and submit the claim forms;
12. Instructs the Office of the Register of Damage, immediately upon its establishment, to seek the cooperation of the concerned Governments and authorities so as to facilitate its work in connection with the collection, submission and processing of damage claims in the Occupied Palestinian Territory, including East Jerusalem;
13. Calls upon the Government of Israel and the Palestinian Authority and relevant Palestinian institutions to cooperate with the Office of the Register of Damage. 
UN General Assembly, Res. ES-10/17, 15 December 2006, preamble and §§ 1, 3–4, 6, 8 and 12–13, voting record: 162-7-7-15
UN General Assembly
In a resolution adopted in 2006 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that national legal systems must ensure that victims of torture and other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate social and medical rehabilitation, urges States to take effective measures to this end, and in this regard encourages the development of rehabilitation centres. 
UN General Assembly, Res. 61/153, 19 December 2006, § 10, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on the situation in Afghanistan, the UN General Assembly:
Continues to emphasize the necessity of investigating allegations of current and past violations of human rights and of international humanitarian law, including violations committed against persons belonging to ethnic and religious minorities, as well as against women and girls, of facilitating the provision of efficient and effective remedies to the victims and of bringing the perpetrators to justice in accordance with international law. 
UN General Assembly, Res. 62/6, 11 November 2007, § 20, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN General Assembly:
Demands that Israel, the occupying Power, comply with its legal obligations under international law, as mentioned in the advisory opinion rendered on 9 July 2004 by the International Court of Justice and as demanded in resolutions ES-10/15 of 20 July 2004 and ES-10/13 of 21 October 2003, and that it immediately cease the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, dismantle forthwith the structure situated therein, repeal or render ineffective all legislative and regulatory acts relating thereto, and make reparation for all damage caused by the construction of the wall, which has gravely impacted the human rights and the socio-economic living conditions of the Palestinian people. 
UN General Assembly, Res. 62/109, 17 December 2007, § 12, voting record: 156-7-11-18.
UN General Assembly
In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Stresses that national legal systems must ensure that victims of torture and other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate social and medical rehabilitation, urges States to take effective measures to this end, and in this regard encourages the development of rehabilitation centres.  
UN General Assembly, Res. 62/148, 18 December 2007, § 13, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on the elimination of rape and other forms of sexual violence in all their manifestations, including in conflict, the UN General Assembly urged States:
To provide victims with access to appropriate health care, including sexual and reproductive health care, psychological care and trauma counselling, as well as to rehabilitation, social reintegration and, as appropriate, effective and sufficient compensation, in accordance with relevant international and national law. 
UN General Assembly, Res. 62/134, 18 December 2007, § 1(c), adopted without a vote.
UN Economic and Social Council
In a resolution adopted in 2005 entitled “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”, ECOSOC:
Taking note of Commission on Human Rights resolution 2005/35 of 19 April 2005, in which the Commission adopted the text of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,
1. Expresses its appreciation to the Commission for the adoption of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law;
2. Adopts the Basic Principles and Guidelines as contained in the annex to the present resolution;
3. Recommends to the General Assembly that it adopt the Basic Principles and Guidelines. 
ECOSOC, Res. 2005/30, 25 July 2005, preamble and §§ 1–3, voting record: 43-0-5.
[The UN General Assembly subsequently adopted the Basic Principles and Guidelines in its resolution 60/147 of 16 December 2005]
UN Commission on Human Rights
In a resolution adopted in 1998, the UN Commission on Human Rights urged all parties to the conflict in Afghanistan to respect IHL and “to provide sufficient and effective remedies to the victims of grave violations and abuses of human rights and of accepted humanitarian rules”. 
UN Commission on Human Rights, Res. 1998/70, 21 April 1998, § 5(d), adopted without a vote; see also Res. 1996/75, 23 April 1996, § 10, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:
4. … urges Governments to take effective measures to provide redress and to prevent torture and other cruel, inhuman or degrading treatment or punishment, including their gender-based manifestations;
10. Also stresses that national legal systems should ensure that the victims of torture or other cruel, inhuman or degrading treatment or punishment obtain redress and are awarded fair and adequate compensation and receive appropriate socio-medical rehabilitation, and in this regard encourages the development of rehabilitation centres for victims of torture. 
UN Commission on Human Rights, Res. 2003/32, 23 April 2003, §§ 4 and 10, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 entitled “The right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms”, the UN Commission on Human Rights:
Reaffirming that, pursuant to internationally proclaimed human rights principles, victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation and rehabilitation,
Reiterating the importance of addressing the question of restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms in a systematic and thorough way at the national and international levels,
Recalling also the report of the independent expert, Mr. Cherif Bassiouni, appointed by the Commission (E/CN.4/2000/62), and, in particular, the draft of the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law”, annexed to his report, and the note by the Secretariat (E/CN.4/2002/70),
1. Calls upon the international community to give due attention to the right to a remedy and, in particular, in appropriate cases, to receive restitution, compensation and rehabilitation, for victims of grave violations of international human rights law and humanitarian international law;
2. Requests the Secretary-General to circulate to all Member States and intergovernmental and non-governmental organizations in consultative status with the Economic and Social Council the draft of the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law”, annexed to the report of the independent expert, and to request those that have not yet done so to send their comments thereon to the Office of the United Nations High Commissioner for Human Rights;
3. Takes note of the report of the Chairperson-Rapporteur of the consultative meeting, held on 30 September and 1 October 2002, with a view to finalizing the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law” (E/CN.4/2003/63);
4. Requests the Chairperson-Rapporteur of the consultative meeting, in consultation with the independent experts, Mr. Theo van Boven and Mr. Cherif Bassiouni, to prepare a revised version of the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law”, taking into account the opinions and commentaries of States and of intergovernmental and non-governmental organizations and the results of the consultative meeting;
5. Requests the United Nations High Commissioner for Human Rights to hold, with the cooperation of interested Governments, a second consultative meeting for all interested Member States, intergovernmental organizations and non-governmental organizations in consultative status with the Economic and Social Council, using available resources, with a view to finalizing the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law” and, if appropriate, to consider options for the adoption of these principles and guidelines; the second consultative meeting should have, as a basis for its work, the comments submitted, the report of the Chairperson-Rapporteur of the first consultative meeting and the revised version of the principles and guidelines to be prepared by the Chairperson-Rapporteur of the first consultative meeting in consultation with the independent experts, Mr. Theo van Boven and Mr. Cherif Bassiouni;
6. Encourages the Chairperson-Rapporteur of the first consultative meeting to conduct informal consultations with all interested parties, to further contribute to the process of the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law”;
7. Requests the High Commissioner for Human Rights to transmit to the Commission at its sixtieth session the final outcome of the second consultative meeting for its consideration. 
UN Commission on Human Rights, Res. 2003/34, 23 April 2003, preamble and §§ 1–7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the elimination of violence against women, the UN Commission on Human Rights emphasized the duty of governments to “take appropriate and effective action concerning acts of violence against women, whether those acts are perpetrated by the State, by private persons or by armed groups or warring factions, and to provide access to just and effective remedies”. 
UN Commission on Human Rights, Res. 2003/45, 23 April 2003, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 entitled “The right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms”, the UN Commission on Human Rights,
Reaffirming that, pursuant to internationally proclaimed human rights principles, victims of grave violations of human rights should receive, in appropriate cases, restitution, compensation and rehabilitation,
Reiterating the importance of addressing the question of restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms in a systematic and thorough way at the national and international levels,
Recalling also the report of the independent expert appointed by the Commission, Mr. Cherif Bassiouni (E/CN.4/2000/62) and, in particular, the draft of the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law”, annexed to his report, and the note by the Secretariat (E/CN.4/2002/70),
1. Calls upon the international community to give due attention to the right to a remedy and, in particular, in appropriate cases, to receive restitution, compensation and rehabilitation, for victims of grave violations of international human rights law and humanitarian international law;
2. Takes note of the report of the ChairpersonRapporteur of the second consultative meeting on basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law (E/CN.4/2004/57, annex), held in Geneva on 20, 21 and 23 October 2003;
3. Requests the ChairpersonRapporteur of the consultative meetings, in consultation with the independent experts, Mr. Theo van Boven and Mr. Cherif Bassiouni, to prepare a revised version of the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law”, taking into account the opinions and commentaries of States and of intergovernmental and nongovernmental organizations and the results of the previous consultative meetings (see E/CN.4/2003/63 and E/CN.4/2004/57);
4. Requests the United Nations High Commissioner for Human Rights to hold, with the cooperation of interested Governments, a third consultative meeting for all interested Member States, intergovernmental organizations and nongovernmental organizations in consultative status with the Economic and Social Council, using available resources, with a view to finalizing the “Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law”, and if appropriate, to consider all options for the adoption of these principles and guidelines; this meeting should have, as a basis for its work, inter alia, the comments received, the revised version of the principles and guidelines to be prepared by the ChairpersonRapporteur pursuant to paragraph 3 of the present resolution, and the reports of the ChairpersonRapporteur of the two previous consultative meetings;
5. Encourages the ChairpersonRapporteur of the consultative meetings to conduct informal consultations with all interested parties;
6. Requests the High Commissioner to transmit to the Commission at its sixty-first session the outcome of the consultative process, for its consideration;
7. Decides to continue its consideration of this question, as a matter of priority, at its sixty-first session under the subitem entitled “Independence of the judiciary, administration of justice, impunity” of the relevant agenda item.  
UN Commission on Human Rights, Res. 2004/34, 19 April 2004, preamble and §§ 1–7, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:
Stresses that national legal systems should ensure that victims of torture or other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate sociomedical rehabilitation, and in this regard encourages the development of rehabilitation centres for victims of torture. 
UN Commission on Human Rights, Res. 2004/41, 19 April 2004, § 5, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on the elimination of violence against women, the UN Commission on Human Rights emphasized the duty of governments to “take appropriate and effective action concerning acts of violence against women, whether those acts are perpetrated by the State, by private persons or nonState actors, and to provide access to just and effective remedies”. 
UN Commission on Human Rights, Res. 2004/46, 20 April 2004, § 3, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN Commission on Human Rights:
Demands that Israel, the occupying Power, comply with its legal obligations under international law, as mentioned in the advisory opinion rendered on 9 July 2004 by the International Court of Justice and as demanded in resolution ES-10/15 and resolution ES-10/13 of 21 October 2003, and that it cease the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, dismantle forthwith the structure situated therein, repeal or render ineffective all legislative and regulatory acts relating thereto, and make reparation for all damage caused by the construction of the wall. 
UN Commission on Human Rights, Res. 2005/7, 14 April 2005, § 8, voting record: 29-10-14.
UN Commission on Human Rights
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:
Stresses that national legal systems should ensure that victims of torture or other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate socio-medical rehabilitation, and in this regard encourages the development of rehabilitation centres for victims of torture. 
UN Commission on Human Rights, Res. 2005/39, 19 April 2005, § 6, adopted without a vote.
UN Commission on Human Rights
In 2005, the UN Commission on Human Rights adopted the text of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for the Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The text was subsequently forwarded in a draft resolution to the Economic and Social Council with the recommendation that it be submitted to the UN General Assembly for adoption. 
UN Commission on Human Rights, Res. 2005/35, 19 April 2005, §§ 1–3, voting record: 40-0-13.
The UN General Assembly subsequently adopted the Basic Principles and Guidelines in its resolution 60/147 of 16 December 2005.
UN Commission on Human Rights
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights:
Stresses that national legal systems should ensure that victims of torture or other cruel, inhuman or degrading treatment or punishment obtain redress, are awarded fair and adequate compensation and receive appropriate socio-medical rehabilitation, and in this regard encourages the development of rehabilitation centres for victims of torture. 
UN Commission on Human Rights, Res. 2005/39, 19 April 2005, § 6, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the elimination of violence against women, the UN Commission on Human Rights:
Strongly condemns all acts of violence against women and girls, whether these acts are perpetrated by the State, by private persons or non-State actors, and calls for the elimination of all forms of genderbased violence in the family, within the general community and where perpetrated or condoned by the State, in accordance with the Declaration on the Elimination of Violence against Women, and stresses the need to treat all forms of violence against women and girls as a criminal offence, punishable by law, as well as the duty to provide access to just and effective remedies and specialized assistance to victims, including medical and psychological assistance, as well as effective counselling. 
UN Commission on Human Rights, Res. 2005/41, 19 April 2005, § 3, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 entitled “Right to the truth”, the UN Commission on Human Rights:
Acknowledging, in cases of gross violations of human rights and serious violations of international humanitarian law, the need to study the interrelationship between the right to the truth and the right to access to justice, the right to obtain effective remedy and reparation, and other relevant human rights. 
UN Commission on Human Rights, Res. 2005/66, 20 April 2005, preamble, adopted without a vote.
UN Sub-Commission on Human Rights
In a resolution adopted in 1993 on the situation in Bosnia and Herzegovina, the UN Sub-Commission on Human Rights recommended that “steps be taken to ensure full reparation for losses suffered as a consequence of aggression and religious and ethnic cleansing”. 
UN Sub-Commission on Human Rights, Res. 1993/17, 20 August 1993, § 8; see also Res. 1995/8, 18 August 1995, § 6.
League of Arab States
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, the League of Arab States stated:
Israel is under a duty to make full reparation for the injury caused by this unlawful act (art. 31 ILC Draft [Articles on State Responsibility]). This reparation includes, first, restitution. There is, thus, a duty “to re-establish the situation which existed before the wrongful act was committed” (article 35 ILC Draft). This means that the Wall has to be torn down by Israel. It also means that the land used for the purpose of building the Wall must be given back to the [Palestinian National Authority] or to the original owners. That restitution in kind takes precedence over any payment of compensation. 
League of Arab States, Written statement submitted to the ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 30 January 2004, p. 104.
No data.
Permanent Court of International Justice
In the Chorzów Factory case (Merits) in 1928, the PCIJ ruled:
It is a principle of international law, and even a general conception of 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. 
PCIJ, Chorzów Factory case (Merits), Judgment, 13 September 1928, p. 29.
International Court of Justice
In its Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, the ICJ stated the following on the customary status of the obligation to make reparation:
152. … Given that the construction of the wall in the Occupied Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned. The Court would recall that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the following terms:
“The essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.” (Factory at Chorzów, Merits, Judgement No 13, 1928, P.C.I.J., Series A, No. 17, p. 47.)
153. Israel is accordingly under an obligation to return land, orchards, olive groves and other immovable property seized from natural or legal person for purposes of the construction of the wall in Occupied Palestinian Territory. In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction. 
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, §§ 152–153.
International Court of Justice
In its judgment in the Armed Activities on the Territory of the Congo case (DRC v. Uganda) in 2005, the ICJ stated:
The Court observes that it is well established in general international law that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act (see Factory at Chorzów, Jurisdiction, 1927, P.C.I.J., Series A, No. 9, p. 21; Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 81, para. 152; Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 59, para. 119). Upon examination of the case file, given the character of the internationally wrongful acts for which Uganda has been found responsible (illegal use of force, violation of sovereignty and territorial integrity, military intervention, occupation of Ituri, violations of international human rights law and of international humanitarian law, looting, plunder and exploitation of the DRC’s natural resources), the Court considers that those acts resulted in injury to the DRC and to persons on its territory. Having satisfied itself that this injury was caused to the DRC by Uganda, the Court finds that Uganda has an obligation to make reparation accordingly. 
ICJ, Armed Activities on the Territory of the Congo case (DRC v. Uganda), Judgment, 19 December 2005, § 259.
The Court subsequently found that Uganda was “under obligation to make reparation to the Democratic Republic of the Congo for the injury caused”. 
ICJ, Armed Activities on the Territory of the Congo case (DRC v. Uganda), Judgment, 19 December 2005, § 345 (5).
The Court also found that the Democratic Republic of the Congo was under obligation to make reparations to Uganda for injury caused to Ugandan nationals:
[T]he Democratic Republic of the Congo, by the conduct of its armed forces, which attacked the Ugandan Embassy in Kinshasa, maltreated Ugandan diplomats and other individuals on the Embassy premises, maltreated Ugandan diplomats at Ndjili International Airport, as well as by its failure to provide the Ugandan Embassy and Ugandan diplomats with effective protection and by its failure to prevent archives and Ugandan property from being seized from the premises of the Ugandan Embassy, violated obligations owed to the Republic of Uganda under the Vienna Convention on Diplomatic Relations of 1961. 
ICJ, Armed Activities on the Territory of the Congo case (DRC v. Uganda), Judgment, 19 December 2005, § 345(12) and (13).
International Court of Justice
In its judgment on the merits in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) in 2007, the ICJ stated:
The principle governing the determination of reparation for an internationally wrongful act is as stated by the Permanent Court of International Justice in the Factory at Chorzów case: that “reparation must, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” (P.C.I.J. Series A, No. 17, p. 47: see also Article 31 of the ILC’s Articles on State Responsibility) … 
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, 26 February 2007, § 460.
International Court of Justice
In its judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) in 2012, the ICJ stated:
It is, therefore, unnecessary for the Court to consider a number of questions which were discussed at some length by the Parties. In particular, the Court need not rule on whether, as Italy contends, international law confers upon the individual victim of a violation of the law of armed conflict a directly enforceable right to claim compensation. Nor need it rule on whether, as Germany maintains, Article 77, paragraph 4, of the Treaty of Peace or the provisions of the 1961 Agreements amounted to a binding waiver of the claims which are the subject of the Italian proceedings. That is not to say, of course, that these are unimportant questions, only that they are not ones which fall for decision within the limits of the present case. The question whether Germany still has a responsibility towards Italy, or individual Italians, in respect of war crimes and crimes against humanity committed by it during the Second World War does not affect Germany’s entitlement to immunity. Similarly, the Court’s ruling on the issue of immunity can have no effect on whatever responsibility Germany may have. 
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 3 February 2012, § 108.
Human Rights Committee
In its General Comment on the Nature of the General Legal Obligation Imposed on States Parties under the 1966 International Covenant of Civil and Political Rights in 2004, the Human Rights Committee held:
Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations. 
Human Rights Committee, General Comment No. 31 [Nature of the General Legal Obligation Imposed on States Parties to the Covenant], 26 May 2004, § 16.
Human Rights Committee
In its concluding observations on the second periodic report of Paraguay in 2006, the Human Rights Committee noted with concern “the persistent excessive use of force, including beatings and killings, by security forces and prison staff” and recommended that Paraguay “ensure that allegations of excessive use of force are thoroughly investigated and the culprits prosecuted. Victims of such methods should receive fair and adequate compensation”. 
Human Rights Committee, Concluding observations on the second periodic report of Paraguay, UN Doc. CCPR/C/PRY/CO/2, 24 April 2006, § 11.
(emphasis in original)
In addition, the Human Rights Committee stated that “victims of [torture] should receive fair and adequate compensation”, and recommended that Paraguay “abolish the recruitment of children for military service, investigate cases of ill-treatment and death of conscripts and compensate the victims”. 
Human Rights Committee, Concluding observations on the second periodic report of Paraguay, UN Doc. CCPR/C/PRY/CO/2, 24 April 2006, §§ 12 and 14.
(emphasis in original)
Human Rights Committee
In its concluding observations on the second periodic report of the Central African Republic in 2006, the Human Rights Committee stated:
The Committee notes with concern that, to date, the authorities have not carried out any exhaustive and independent appraisal of serious violations of human rights and international humanitarian law in the Central African Republic and that the victims have received no reparations (arts. 2, 6 and 7 [of the 1966 International Covenant on Civil and Political Rights]).
The State party should in all circumstances ensure that victims of serious violations of human rights and international humanitarian law are guaranteed effective remedy, which is implemented in practice, including the right to as full compensation and reparations as possible. The State party should act swiftly to implement the recommendations of the national dialogue on the establishment of a truth and reconciliation commission. 
Human Rights Committee, Concluding observations on the second periodic report of the Central African Republic, UN Doc. CCPR/C/CAF/CO/2, 27 July 2006, § 8.
[emphasis in original]
Inter-American Commission on Human Rights
In 2001, in the Case of the Riofrío massacre (Colombia), the Inter-American Commission on Human Rights stated:
48. Before turning to the analysis of the alleged violations of the standards of the American Convention, it must be ascertained whether the acts of the individuals implicated in the incident in violating such fundamental rights as the rights to life and humane treatment are attributable to the State of Colombia and therefore call into question its responsibility in accordance with international law. In this regard, the Inter-American Court has noted that it is sufficient to show that the infringement of the rights recognized in the Convention has been supported or tolerated by the government.
49. First, it should be said that, as noted by the [Inter-American Commission on Human Rights] in its Third Report on the Human Rights Situation in Colombia, the State has played a leading role in developing the paramilitary or self-defense groups, that it allowed them to act legitimately with the protection of the law during the 1970s and 1980s, and that it is generally responsible for their existence and for strengthening them.
50. These groups sponsored or accepted by branches of the armed forces were created mainly to combat armed groups of dissidents. As a result of their counterinsurgency purposes, the paramilitaries established links with the Colombian army that became stronger over a period of more than twenty years. Eventually, on May 25, 1989, the Supreme Court of Justice declared Decree 3398 unconstitutional, thereby removing all legal support for their ties to national defense. In the wake of this action, the State passed a number of laws to criminalize the activities of these groups and of those that supported them. Despite these measures, the State did little to dismantle the structure it had created and promoted, particularly in the case of groups that carried out counterinsurgency activities and, in fact, the ties remained in place at different levels, which in some instances requested or permitted paramilitary groups to carry out certain illegal acts on the understanding that they would not be investigated, prosecuted, or punished. The toleration of these groups by certain branches of the army has been denounced by agencies within the State itself.
51. As a result of this situation, the Commission has established, for the purposes of determining the international responsibility of the State in accordance with the American Convention, that in cases in which members of paramilitary groups and the army carry out joint operations with the knowledge of superior officers, the members of the paramilitary groups act as agents of the State.
52. In the present case, according to analysis of the facts mentioned above, there is evidence to show that agents of the State helped to coordinate the massacre, to carry it out, and, as discovered by domestic courts, to cover it up. Therefore, the only conclusion is that the State is liable for the violations of the American Convention resulting from the acts of commission or omission by its own agents and by private individuals involved in the execution of the victims. 
Inter-American Commission on Human Rights, Case of the Riofrío massacre (Colombia), Report, 6 April 2001, §§ 48–52.
Eritrea-Ethiopia Claims Commission
In its Decision Number 7, Guidance Regarding Jus ad Bellum Liability, in 2007, the Eritrea-Ethiopia Claims Commission, in considering the breadth of State responsibility for violations of international law, stated:
21. … [T]here have been few modern instances in which a State has been determined to bear responsibility for damages resulting from a war as a matter of international law. Throughout history, indemnities frequently have been exacted from the losing parties in wars, but this has resulted from the exercise of power by the victor, not the application of the international law of State responsibility.
22. In the Commission’s view, the few twentieth century cases in which States have been held to be internationally responsible for extensive war damages do not provide clear guidance, and instead counsel caution. The war guilt and reparations provisions of the Treaty of Versailles reflected a collective judgment by the victorious parties to the First World War that Germany bore responsibility for the initiation and continuation of that war, and authorized a massive program of reparations. However, the history of those provisions makes clear that they were heavily shaped by motives of policy and revenge unrelated to the principles of law. The program of reparations under the Treaty of Versailles had a brief and unsatisfactory history.
23. The Commission likewise does not see the international community’s measures relating to compensation following the Second World War as providing compelling reference points in the present situation, involving a violation of law of a much different order. At the end of that war, there was a broad consensus on the part of the Allied Powers that Germany and Japan were responsible for initiating and waging aggressive war on a massive scale. Individual leaders of both States were held criminally responsible for their conduct, and some senior leaders were executed.
24. Nevertheless, the practice of States at that time does not support the expansive view of State responsibility [one of the parties] urges now. The States deemed by the international community to be directly responsible for the war ultimately bore financial consequences that were modest in relation to the resulting damages. For reasons largely related to the post-war division of Germany, there was no comprehensive multilateral peace treaty with Germany corresponding to the Treaty of Versailles, and there was no internationally agreed program of reparations or compensation. The Soviet Union for a time carried out its own program of enforced reparations from Germany, but this was “victor’s justice,” not a principled application of the international law of State responsibility enjoying international support and legitimacy. Germany subsequently carried out extensive programs of compensation and assistance to the State of Israel and to many groups of persons injured by its conduct, but these were largely shaped by considerations of morality and politics, not by the law of State responsibility.
25. The September 1951 Treaty of Peace with Japan included substantial provisions relating to claims and property, but again does not provide compelling guidance. While the Treaty of Peace brought about or confirmed substantial transfers of assets, its provisions resulted from a negotiation aimed at reintegrating Japan into the global community, not an application of the law of State responsibility. Article 14 of the Treaty illustrates this negotiated aspect, as well as the parties’ decision not to repeat the experience of the Treaty of Versailles.
26. Given its purposes, the Treaty of Peace did not require the immediate commitment of fresh funds to provide compensation. Instead, Article 14(a)(2)(I) gave each of the Allied Powers and China the right to seize and keep or liquidate certain overseas property of Japan and Japanese nationals and entities. Under Article 14(a), Japan also agreed to “promptly enter into negotiations with Allied Powers so desiring, whose present territories were occupied by Japanese forces and damaged by Japan, with a view to assisting to compensate those countries for the cost of repairing the damage done, by making available the services of the Japanese people in production, salvaging and other work …” Compensation under the Treaty was exclusive. In Article 14(b) “the Allied Powers waive[d] all reparations claims … arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war …”
27. Thus, the post-war practice of States regarding Nazi Germany and Japan, both generally regarded by the international community as having initiated and waged aggressive war on a massive scale, provide no clear reference here. There either were no reparations determined through application of international law (Germany), or reparations were determined through negotiations shaped by the defeated State’s ability to pay and other political and economic factors (Japan). 
Eritrea-Ethiopia Claims Commission, Decision Number 7, Guidance Regarding Jus ad Bellum Liability, 27 July 2007, §§ 21–27.
[footnotes in original omitted]
Eritrea-Ethiopia Claims Commission
In its Ethiopia’s Damages Claims final award in 2009, the Eritrea-Ethiopia Claims Commission considered the principle of reparation for State violations of international law. First, the Commission considered whether moral damages were appropriate, stating:
61. … Large per capita awards of moral damages may be logical and appropriate in some contexts involving significant injuries to an individual or to identifiable members of small groups. The concept cannot reasonably be expanded to situations involving claimed moral injury to whole populations of large areas.
63. The Commission also does not accept the mechanical use of “severity factors” to swell the claim. This system has no precedent in international law. The factors themselves, and the manner of their application, are questionable. Two of the factors … involve matters bearing upon inter-State relations. These might be relevant to certain claims for damage purely to the State, but not to assessing moral injury to individuals …
64. … The moral damages awards of the courts and tribunals … cite[d] reflect a painstaking assessment of detailed records in individual cases. There can be no such assessment in a claim involving huge numbers of hypothetical victims.
65. In appropriate cases, the Commission has weighed some of the considerations identified … such as the gravity of a particular type of violation, and the extent and consequences of the resulting human injury, in determining the damages to be awarded. However, it has done so as an integral element of its damages awards, not by using a separate calculus of “moral damage”. 
Eritrea-Ethiopia Claims Commission, Ethiopia’s Damages Claims, Final Award, 17 August 2009, §§ 61 and 63–65.
[footnote in original omitted]
The Commission also considered reparation in general, stating:
285. Legal Considerations. The International Court of Justice has employed broad language to describe the reparation that should follow from a breach of the jus ad bellum, but its judgments have not addressed concretely the types or extent of damage to be regarded as proximately caused by a delict. Most recently, the Court in Congo v. Uganda affirmed in broad terms “that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act,” but it left it to the parties to determine in the first instance what this meant through negotiations. This process has not yet borne fruit. In Cameroon v. Nigeria, the Court found that Nigerian armed forces and police were present in large areas found to belong to Cameroon, but it denied further relief, concluding that “by the very fact of the present judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed.” Nicaragua v. United States affirmed the United States’ responsibility for unlawful uses of force, but the case was withdrawn by Nicaragua while the damages phase was underway.
286. Some other international courts, tribunals and commissions have wrestled with whether particular types of damage have the requisite causal connection to a delict. Their decisions offer some guidance, at two levels. First, some decisions suggest the outer boundaries of compensable damage. Since at least the Alabama arbitration, panels have rejected claims for damages to generalized economic interests of the victorious State or its nationals, or to its expenses in waging war. The Alabama Commissioners thus concluded that the claims of the United States for the transfer of American merchant vessels to British registry, increased insurance costs, and the prolongation of the war and associated costs “do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation.” The United States-German Mixed Claims Commission, cited with approval by both Parties, emphasized the need for a direct causal connection between a loss and the actions of the defendant State, and rejected claims for “all damage or loss in consequence of the war.” More recently, in creating the United Nations Compensation Commission [UNCC], the Security Council sought to limit the extent of compensable damage by confining jurisdiction to “direct” claims against Iraq.
288. On a second level, past decisions offer informative precedents for some specific types of damage now claimed. Thus, in the case of post-conflict injuries from mines of unknown origin, the Commission found persuasive Umpire Parker’s analysis in a claim before the U.S.-German Mixed Claims Commission. The UNCC also addressed some questions and types of injury akin to those here; the Commission found persuasive the UNCC’s practice of including damage resulting from actions by the forces of both parties to a conflict. However, for several types of injuries claimed … Whiteman’s observation remains apt: “While there has been more or less agreement that certain types of damage are unreasonable, there has been no such agreement as to the reasonableness or unreasonableness of a wide variety of types of damage.”
289. Factual Considerations, Proximate Cause and Foreseeability. Past decisions and practice suggest elements of a legal framework for analyzing compensation claims for violation of the jus ad bellum, but they do not answer other basic questions. Like the U.S.-German Mixed Claims Commission before it, the Commission does not believe that a State’s international responsibility in a case such as this extends to all of the losses and disruptions accompanying an international conflict. A breach of the jus ad bellum by a State does not create liability for all that comes after. Instead, there must be a sufficient causal connection. The Commission concluded in Decision Number 7 that this was best expressed through the concept of proximate cause. The nature and extent of the causal connection between Eritrea’s conduct in May 1998 and ensuing events involves assessments of facts regarding the character and course of the armed conflict. This task has been complicated and uncertain. As time passed, the conflict was driven or shaped by both Parties’ actions, by the actions of outside parties, and by the element of chance that pervades battlefields. Not surprisingly, the record rarely illuminated either Party’s motivations and intentions.
290. In assessing causation, the Commission has tried, inter alia, to weigh whether particular consequences were, or should have been, foreseen … It agrees that the test of foreseeability should extend to a broader range of outcomes than might need to be considered in a less momentous situation. A substantial resort to force is a serious and hazardous matter. A party considering this course is bound to consider matters carefully, weighing the costs and possible bad outcomes, as well as the outcome it seeks. This is particularly so given the uncertainties of armed conflict. At the same time, if a party is deemed to foresee too wide a range of possible results of its action, reaching too far into the future, or too far from the battlefield, foreseeability loses meaning as a tool to assess proximate cause. If all results are foreseeable, the test is meaningless.
297. Assessments of proximate causation and foreseeability become more complex and less certain as to injuries occurring at greater remove in space and time from the initial fighting in Badme and on the Western Front. In making these assessments, the Commission has given significant weight to the seriousness of a decision by a State to resort to the large-scale use of force. Such a momentous decision places a heavy obligation on the acting State’s leaders to analyze and weigh carefully the potential consequences of their intended action. In this regard, a State choosing to resort to force in violation of the jus ad bellum bears responsibility for the foreseeable results both that it desires, and those it does not.
308. Given the limited guidance available from past decisions, the Commission weighed several factors in assessing the amount of compensation that should follow from a breach of the jus ad bellum. A threshold question was whether any award of damages should be designed to serve the exceptional purpose of helping to deter future violations of Article 2, paragraph 4 of the [1945] Charter of the United Nations, or should, instead, serve the more conventional purpose of providing appropriate compensation within the framework of the law of State responsibility. As to this, the Commission understands the latter to be its responsibility, and it doubts that possible awards of monetary compensation would be likely to deter a State contemplating action in breach of the jus ad bellum. Under the Charter of the United Nations, the Security Council has primary responsibility for addressing (and deterring) violations of Article 2, paragraph 4 of the Charter, inter alia, by its authority to impose sanctions. Other deterrents are found in the rights of individual and collective self-defence and in the risk of criminal punishment of government officials responsible for deciding upon the unlawful resort to force. The prospect of potential monetary liabilities seems of little comparative weight.
312. In a similar vein, the Commission believes that the law of State responsibility must maintain a measure of proportion between the character of a delict and the compensation due. …
315. The caution in setting levels of compensation reflected in … past experiences highlights another important concern. The process of moving from war to a stable and mutually beneficial peace often is difficult and uncertain, as the Parties’ current relations show. Informed by the unhappy consequences of reparations under the Treaty of Versailles, most States have been concerned to ensure that programs for compensation or reparation do not themselves undermine efforts to accomplish a stable peace. The Commission would be greatly concerned if its efforts to carry out the mandate given it by the Parties led to a further deterioration of their relations, and impaired the prospects for a durable peace. 
Eritrea-Ethiopia Claims Commission, Ethiopia’s Damages Claims, Final Award, 17 August 2009, §§ 285–286, 288–290, 297, 308, 312 and 315.
[footnotes in original omitted]
ICRC
In 1993, in a report submitted to the UN General Assembly on the protection of the environment in time of armed conflict, the ICRC stated:
Article 1, common to the four Geneva Conventions and to Protocol I, stipulates that the contracting States are under an obligation “to respect and ensure respect for” those instruments. Beyond that, and on a more general level, a State is responsible for every act or omission attributable to it and amounting to a breach of an international obligation incumbent on it, including in the field of the international protection of the environment. States affected by such a breach are entitled to insist on the implementation of such rules of State responsibility, including … reparation. 
ICRC, Report on the protection of the environment in time of armed conflict submitted to the UN General Assembly, reprinted in Report of the UN Secretary-General on the protection of the environment in times of armed conflict, UN Doc. A/48/269, 29 July 1993, § 47.
ICRC
In 1993, in its report on the protection of war victims, the ICRC, referring to Article 91 of the 1977 Additional Protocol I, stated: “This article confirms a rule which is today accepted as being part of customary law and was already stated, in almost identical terms, in Article 3 of the Hague Convention No. IV of 1907.” Referring to Article 51 of the 1949 Geneva Convention I, Article 52 of the 1949 Geneva Convention II, Article 131 of the 1949 Geneva Convention IV and Article 148 of the 1949 Geneva Convention IV, the ICRC further stated:
This provision … also implies that, irrespective of the outcome of an armed conflict, no decision or agreement can dispense a State from the responsibility to make reparation for damages caused to the victims of breaches of international humanitarian law.
The ICRC recommended that:
The International Conference for the Protection of War Victims should make it clear that it wishes procedures to be set up to provide reparation for damage inflicted on the victims of violations of international humanitarian law … so as to enable them to receive the benefits to which they are entitled. 
ICRC, Report on the Protection of War Victims, Geneva, June 1993, Section 4.3, IRRC, No. 292, 1993, pp. 391–445.
American Law Institute
The Restatement (Third) of the Foreign Relations Law of the United States, adopted and promulgated by the American Law Institute in 1986, provides:
Under international law, a state that has violated a legal obligation to another state is required to terminate the violation and, ordinarily, to make reparation, including in appropriate circumstances restitution or compensation for loss or injury. 
The American Law Institute, Restatement Third. Restatement of the Foreign Relations Law of the United States, American Law Institute Publishers, St. Paul, 1987, § 901.
The Restatement (Third) further provides:
A private person, whether natural or juridical, injured by a violation of an international obligation by a state, may bring a claim against that state or assert that violation as a defense
(a) in a competent international forum when the state has consented to the jurisdiction of that forum with respect to such private claims;
(b) in a court or other tribunal of that state pursuant to its law; or
(c) in a court or other tribunal of the injured person’s state of nationality or of a third state, pursuant to the law of such state, subject to limitations under international law. 
The American Law Institute, Restatement Third. Restatement of the Foreign Relations Law of the United States, American Law Institute Publishers, St. Paul, 1987, § 906.
Women’s International War Crimes Tribunal for the Trial of Japanese Military Sexual Slavery
The Women’s International War Crimes Tribunal for the Trial of Japanese Military Sexual Slavery recommended that the United Nations and all the states and people thereof “take all steps necessary to ensure that the government of Japan provides full reparations to the victims and survivors and those entitled to recover on account of the violations committed against them”. 
Women’s International War Crimes Tribunal for the Trial of Japanese Military Sexual Slavery, The Prosecutors and the Peoples of the Asia-Pacific Region v. Emperor Hirohito et al. and the Government of Japan, Final Judgment, 4 December 2001, Recommendations, § 149(i).