Getting to Full Restitution: Guidelines for Court-Ordered Reparations in Cases Involving Sexual Violence Committed during Armed Conflict, Political Violence, or State Repression

4/11/2017

Cristián Correa

Defining court-ordered reparations for victims of sexual violence committed during armed conflict, political violence, or state repression is not an easy task. The challenges only increase when there are few domestic precedents for defining such reparations based on international human rights law or international humanitarian law. However, decisions by international and foreign courts as well as other sources of international law can be useful guidelines and references for domestic judges, lawyers, and advocates in interpreting national law, to determine the coherence between national law and constitutional principles or fundamental rights, to fill in any gaps, or to resolve inconsistencies in national law. Several international instruments and court decisions provide elements for defining each form of reparation, including restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

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Recent developments in how to provide reparations under international law and its case law could be used by judges, lawyers, and practitioners in domestic cases. One of the most relevant such developments is the understanding that when dealing with violations that have consequences that cannot be fully assessed economically, the obligation to provide reparations should not be limited to monetary compensation. This paper explains how the legal notion of restitutio in integrum has become the basis for defining and ordering other forms of reparation, particularly restitution and symbolic reparation.

Traditional public international law and recent developments in human rights law point to this broader approach to reparation. Examples from the jurisprudence of international human rights tribunals analyzed in this paper reveal the reasoning behind court decisions in applying a notion of reparations that responds to the different dimensions of harms.

The paper also explains how human rights law has defined rehabilitation, a form of reparations that is especially relevant for victims of sexual violence. Both the normative and the jurisprudential basis of this notion are analyzed, including the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Other forms of reparations relevant for addressing the consequences of sexual violence include measures for guaranteeing access to education for victims and their children and symbolic forms of reparations, such as official apologies and memorialization, which fall under the notion of satisfaction.

Full Restitution as the Governing Notion of Reparations

The basic principle governing reparations is restitutio in integrum or “full restitution.” This notion derives from the idea that reparations should try to return the victim of a crime to the situation that existed before the crime. This is impossible in some situations (notably in cases involving a loss of life or physical impairment) and particularly challenging in others, such as torture, sexual violence, or crimes that do not have an explicit monetary dimension.

Traditionally, courts have taken a monetary approach to defining reparations in these cases, based exclusively on ordering monetary compensation for all economically assessable damages resulting from the violation. This approach results in courts providing compensation for the following types of consequences: direct material harm, for example, funeral expenses or medical expenses; loss of income, or projecting the amount of income the victim would have earned if he or she had not been killed or had not suffered the harm; and moral harm, which is usually equated with subjective suffering resulting from the harm.

Reparations understood in these terms cannot be limited to statutory definitions of maximum compensation amounts or under any consideration not derived from a strict assessment of losses. The person or persons responsible for the harm, including the state, cannot limit their liability if the decision is governed by a basic notion of full restitution.

However, even if such harms could theoretically be financially assessed, in practice it is clear that in many cases, particularly with regard to physical harm, such an approach is unsatisfactory to most victims. This is especially true in situations where the state is responsible for violations, because it has the capacity and means to implement many other forms of reparation that complement compensation.

While the notion of full restitution should guide decisions on court-ordered reparations for human rights violations, there are situations where strict adherence to it may be impractical. These include: cases of massive violations involving large number of victims in which an individual assessment of the harm suffered by each victim could involve a long and complex process; where standards of evidence regularly used by courts could lead to the exclusion of harms or victims who cannot be registered; and processes that risk excluding victims who are most vulnerable, such as the less educated, those who fear reprisal or stigma, and those still suffering trauma who are reluctant to undergo invasive questioning or examinations, etc. In those cases, reparations policies or programs should be designed that combine different measures to address the general consequences of violations, such as more flexible and inclusive measures that do not require individual assessments of harm, but are based on a notion of acknowledgment of responsibility and recognizing victims’ inherent dignity.

Conclusion

When deciding on court-ordered reparations, a judge should aim to establish conditions that address all of the different consequences of the violations suffered by victims, their families, and even their communities.

When deciding on court-ordered reparations, a judge should aim to establish conditions that address all of the different consequences of the violations suffered by victims, their families, and even their communities. Providing reparations only in the form of a cash payment or only monetizing the harms can result in an unfair decision, particularly as harms can have different dimensions for people who live in a less-monetized economy. There are types of harm that can affect a victim so deeply that money by itself may be insufficient as a sole remedy. Some things money cannot replace or repair.

A judge would not be acting alone or breaking new ground by defining reparations in a more comprehensive way. Th ere are precedents in international law and judicial decisions that support such an approach. This paper does not imply that international law should be directly applied on the domestic level; instead, it advocates for using relevant national and international precedents and decisions to better respond to unique situations that perhaps have not yet been regulated adequately by domestic law.

The precedents and decisions analyzed in this paper can be used as examples of the reasoning and considerations used by other courts, based on the strict implementation of applicable law and detailed analysis of the condition of victims. Courts in these cases have tried to fulfill their responsibility by listening to victims and exploring what would be effective in their particular situation to provide sufficient redress. The nature of the violations examined in the cases reviewed here are fairly irreparable, but a court can still order the state to implement other measures to get closest to what justice should be for victims.

The court decisions discussed here have taken special consideration of the nature of the violations and the conditions of the victims. They have found, when appropriate, that certain violations may have a different impact when the victim is female or part of a community with strong links of identity and dependency that may be emotional, social, cultural, and economic. The examples provide possible ways for other courts, in different legal systems, to explore similar dimensions and take them into consideration when deciding how a state can provide redress for these kind of violations.

Date published: 
4/11/2017