Legal Provisions, Principles, Guidelines and Agreements
Reparations in international law and United Nations documents
The right to a remedy for violations of human rights is set out in the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, and several key regional agreements such as the European Convention on Human Rights. Reparations for human rights violations are usually claimed against states or individual state agents, but claims have also been made against actors such as banks, companies, and international financial institutions (for e.g. Slaughter and Bosco 2000).
The International Law Commission Articles on State Responsibility recognise three main types of remedy for violations of international law (focusing on the state-to-state level): restitution, compensation and satisfaction. The Rome Statute of the International Criminal Court includes provisions on reparations, while the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law clarify current international legal principles and emerging norms on reparation, and discuss the scope of the state's obligations to prevent, investigate, punish and remedy infractions of human rights.
The institutions used to uphold the right to a remedy under international law include the International Criminal Court (ICC), the International Court of Justice (ICJ), regional courts such as the Inter-American Court of Human Rights and the European Court of Human Rights, specially mandated bodies such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and ad hoc claims commissions such as the United Nations Compensation Commission (UNCC). Through bodies such as the ICTY and ICTR, significant progress has been made in using international law to ensure individual accountability for gross human rights violations. Although the judges at the Nuremberg trials famously concluded that international wrongs are committed by individuals and not by abstract entities, it is increasingly recognized that it is essential to hold both individuals and states responsible for human rights abuses such as mass expulsions (Echeverria 2002: 1). Notably, in February 2006, the worlds first trial of a state charged with genocide opened at the International Court of Justice (ICJ). The case was initially filed by Bosnia-Herzegovina against Serbia (then Yugoslavia) in March 1993, but it has taken thirteen years of legal wrangling for the case to come before the court for a full hearing. If the court rules in favour of Bosnia it could order Serbia to make a formal apology to Bosnia, pay compensation, or both. The Bosnian government has not specified how much it is seeking in reparations. However, Croatia has filed a similar case against Serbia with the ICJ, and is claiming $29 billion in damages (Partos 2006).
A number of UN documents provide specific guidance on the question of reparations for forced migrants. Principle 29 of the Guiding Principles on Internal Displacement states, 'Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation'. The UN Principles on Housing and Property Restitution for Refugees and Displaced Persons offer detailed guidance on the interpretation and application of the right of refugees and IDPs to have their homes and properties restored to them. The issue has also been addressed in several resolutions of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities (for e.g. UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities Resolution 1998/26). General Assembly Resolution 194 of 1948 on the Palestinian refugees articulates principles on restitution and compensation which have been used to help resolve various displacement situations, although the Palestinian case of course remains outstanding. As the provisions of Resolution 194 have been reiterated in many subsequent General Assembly resolutions, some legal scholars have argued that they now represent 'hard' international law (Boling 2001). COHREs 2001 publication Housing and Property Restitution for Refugees and Internally Displaced Persons: International, Regional and National Legal Resources is an excellent compilation of legal documents pertaining to restitution for the displaced.
Although documents such as the ILC Articles on State Responsibility took forty years to negotiate, this is a rapidly evolving field of international law and scholarship. Not surprisingly, most research on reparations for human rights violations under international law has been carried out by legal scholars, and involves traditional approaches such as the analysis of key rulings and legal texts. However, a growing body of work integrates these legal perspectives with analyses of the political context within which international law evolves and is implemented.
- Boling, G. (2001) 'Palestinian Refugees and the Right of Return: An International Law Analysis', BADIL Information and Discussion Brief 8. http://www.badil.org/
- Centre on Housing Rights and Evictions (COHRE) (2001) Housing and Property Restitution for Refugees and Internally Displaced Persons: International, Regional and National Legal Resources, Geneva, COHRE. http://www.cohre.org/
- Echeverria, G. (2002) 'The Draft Basic Principles and Guidelines on the Right to Remedy and Reparation An Effort to Develop a Coherent Theory and Consistent Practice of Reparation for Victims', Article 2 1 (6). http://www.article2.org/mainfile.php/0106/60/
- European Court of Human Rights http://www.echr.coe.int/echr
- International Criminal Court http://www.icc-cpi.int
- Partos, G. (2006) 'Analysis Serbia in the dock', BBC News, 27 February. http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/4748960.stm
- Pinheiro Principles: UN Principles on Housing and Property Restitution for Refugees and Displaced Persons, E/CN.4/Sub.2/2005. http://www.cohre.org/
- Redress (2002) The Reparation Sourcebook, London, REDRESS. http://www.redress.org/publications/SourceBook.pdf
Reparations in domestic law
Many countries possess robust domestic laws on human rights and reparations, or have integrated international legal standards on these issues into national law. In countries with well-developed legal systems such as Canada and the United States, reparations claims are often pursued at the national level under domestic laws, without direct appeal to international laws or institutions. Indeed, the United States' class action litigation system was used to launch several prominent and highly successful reparations campaigns, such as the movement to secure restitution for Holocaust survivors from the Swiss banks. In countries with well-developed litigation systems, remedies may be negotiated entirely outside of the courtroom, with the claimants using the threat of legal action to secure an acceptable settlement.
However, using national laws to secure redress is a complex process that is often inaccessible to marginalised groups such as displaced persons. Indeed, in most countries experiencing serious forced migration problems, judicial systems are already stretched to capacity, and cannot effectively accommodate a large number of claims from displaced persons or other groups seeking reparations. In countries that lack a strong judiciary, establishing specialised, temporary bodies may be essential to the successful provision of remedies for the survivors of human rights violations. For example, Rwanda formally instituted the gacaca system, which deals with crimes from the 1994 genocide at the community level (see section 3.3). Working in tandem with international lawyers may support both the reparations process and the broader task of strengthening legal capacity and the rule of law. Indeed, the reparations process may provide a valuable opportunity to overhaul the domestic legal system. For example, in Bosnia and Herzegovina, part of the property restitution process involved repealing arcane property laws left over from the Communist era, as well as those laws that discriminated against the displaced. This created a clearer and sustainable property law system, and thereby improved the country's ability to attract investment. There is a growing body of literature on cooperation between international actors and national legal authorities to support reparations processes. Much of this work comes from international lawyers and property experts who were directly involved in restitution processes in countries such as Bosnia and Herzegovina (for e.g. Philpott 2005).
It should be noted that while reconciliation is not a legal concept, national truth and reconciliation commissions are usually mandated under domestic law, and failure to comply with TRC investigations may have legal ramifications. For example, the perpetrators of grievous abuses under the apartheid system were only able to avoid prosecution and punishment by fully disclosing their crimes and cooperating with the South African TRC (see section 4.2).
- Inkiko Gacaca-National Service of Gacaca Jurisdictions http://www.inkiko-gacaca.gov.rw/En/EnIntroduction.htm
- IDRC: Reparation for Internal Displacement in Colombia http://www.idrc.ca/en/ev-92623-201-1-DO_TOPIC.html
Reparations and peace agreements
Virtually every peace agreement concluded since 1995 includes provisions on the right of return and reparations for those who were forced from their homes. The controversial 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) set a new standard for incorporating reparations into peace agreements by including provisions on cooperation with the ICTY, and establishing mechanisms to provide housing and property restitution to the displaced. Although the implementation of the Dayton Agreement has been slow, costly and flawed, the comprehensive, rights-based language on return used in the Agreement has been emulated in several other treaties. In particular, the Dayton Agreement's conception of the right to return as the right to reclaim one's original home has been highly influential and has arguably helped establish this right as a new international norm.
While there is an impressive and growing body of case-specific literature on the criminal tribunals and reconciliation commissions mandated under peace agreements, comparatively little attention has been paid to the broader comparative analysis of the reparations provisions in peace agreements as they pertain to the displaced. The few analyses that have been completed on this issue have adopted a primarily legal approach (for e.g. Phuong 2005). Political and historical examinations of the process of negotiating the reparations provisions in peace agreements could improve shared understandings of how to affirm and protect the rights of displaced persons in the context of peace agreements.
- ACCORD (African Centre for the Constructive Resolution of Disputes) http://www.accord.org.za/web/home.htm
- Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict in Guatemala (1994). http://www.c-r.org/our-work/accord/guatemala/resettlement-agreement.php
- Conciliation Resources http://www.c-r.org
- Eschenbacher, J. (2005) 'IDPs and Peace Processes' in Eschenbacher, J. (ed.) Internal Displacement: Global Overview of Trends and Developments in 2004, Geneva, Norwegian Refugee Council. http://www.internal-displacement.org/
- General Framework Agreement for Peace in Bosnia and Herzegovina (1995). http://www.ohr.int/dpa/default.asp?content_id=380
- General Peace Agreement for Mozambique (1992). http://www.c-r.org/accord/moz/accord3/rome1.shtml
- International Crisis Group (2005) 'Georgia-South Ossetia: Refugee Return the Path to Peace', Europe Briefing No. 38. http://www.crisisgroup.org/home/index.cfm?id=3380&l=1
- Phuong, C. (2005) Forcible displacement and peace agreements, Geneva, International Council on Human Rights Policy http://www.ichrp.org/public/workingpapers.php?id_projet=27&lang=AN
- Public International Law and Policy Group (2005) Peace Agreement Drafter's Handbook, Washington, D.C., Public International Law and Policy Group. http://www.pilpg.org/areas/peacebuilding/peacehandbook/#refugees
Reparations and development-induced displacement
In response to increasing pressure from civil society groups and communities displaced by large-scale development projects in the 1980s and 1990s, the international financial institutions began developing operational guidelines on development-induced displacement. A major early example of such a policy is the World Bank's 1990 Operational Directive 4.30 on Involuntary Resettlement. The international financial institutions now recognise, at least rhetorically, that projects involving large-scale forced displacement should generally not receive financial support as they generate unacceptable negative consequences for development and human rights. However, in cases where projects are judged worthy of support despite unavoidable forced relocation, these policies identify the type of reparations that must be provided to the displaced. Generally speaking, financial compensation is recognised as an inferior option to the provision of substitute land upon which displaced communities can continue to practice their livelihoods. However, this guidance is not always followed, particularly when land is scarce or expensive. When the displaced community has strong indigenous ties to the land, the provision of substitute land may not be an acceptable solution.
Over the past decade, international financial institutions, particularly the World Bank, have carried out a range of in-depth studies on the social and economic implications of involuntary resettlement, and how the negative effects of displacement may be mitigated through reparations. Advocacy organisations are also a principle source of information on development-induced displacement and campaigns for redress for the displaced. For example, the Geneva-based Centre on Housing Rights and Evictions has documented and supported the struggle for reparations from the international financial institutions involved in financing the Chixoy dam in Guatemala during the country's civil war. In India, the grassroots campaign against the Sardar Sarovar dam on the Narmada River has been chronicled and supported by a wide range of national and international organizations and prominent Indian nationals such as Arundati Roy.
For additional information on this issue, see the Forced Migration On-line Research Guide on Development-Induced Displacement and Resettlement.
- Asian Development Bank http://www.adb.org/
- Centre on Housing Rights and Evictions (COHRE) (2004) Continuing the Struggle for Justice and Accountability in Guatemala: Making Reparations a Reality in the Chixoy Dam Case, Geneva, COHRE. http://www.cohre.org/
- Inter-American Development Bank http://www.iadb.org/
- International Rivers Network http://www.irn.org
- United Nations Environment Programme Dams and Development Project http://www.unep.org/dams/
- World Bank http://www.worldbank.org
- World Bank Involuntary Resettlement Team http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTSOCIALDEVELOPMENT/EXTINVRES/0,,menuPK:410241~pagePK:149018~piPK:149093~theSitePK:410235,00.html
- World Bank (2004) Revised Operational Policy on Involuntary Resettlement, OP 4.12, Washington, D.C., World Bank. http://wbln0018.worldbank.org/Institutional/Manuals/OpManual.nsf/toc2/CA2D01A4D1BDF58085256B19008197F6?OpenDocument
- World Commission on Dams http://www.dams.org
- World Parks Congress (2003) Summary Report of the Vth IUCN World Parks Congress: Benefits Beyond Boundaries, 8-17 September 2003. http://www.iisd.ca/sd/worldparksV/sdvol89num9e.html