Reparations Decisions and Dilemmas

The International Bill of Rights declares a right to a remedy for violations of human rights. States are obliged to provide remedies for violations, both as a matter of treaty law and as part of the general rules of state responsibility. The U.N. Human Rights Commission and its Subcommission have formulated draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law (Principles), which outline restitution, rehabilitation, compensation and satisfaction as interlinked but distinct obligations on states. In addition, the statute of the newlycreated International Criminal Court allows for individual offenders to pay reparations to victims.

And yet, few reparations have actually been paid in the wake of mass atrocities. This article will consider some of the difficulties in thinking about reparations after mass atrocities, both in general and in the context of poor countries with many victims and multiple claims on scarce resources. It surveys legal guideposts and past practice for ideas and insights that might be applicable in the mass atrocity context. A final section will propose three distinct, yet interrelated ways of thinking about reparations in this context, all of which eschew the classic view of individual, court-ordered reparations for other approaches.