Reparations for violations by a State

This Chapter of the Handbook collects the observations and recommendations of the UN Special Rapporteur on the reparations for victims provided by a state in the context of extrajudicial killings. This section includes case studies that illustrate the obligations of states to compensate victims who have had their human rights violated during armed conflict.

The Special Rapporteur also considers the requirement of governments to compensate individuals who have had their human rights violated as a result of acts by government officials.

A. COMPENSATION FOR VICTIMS OF VIOLATIONS BY A STATE

56. Whenever a State is responsible for an unlawful killing, international law requires reparations in the form of compensation and/or satisfaction. This obligation is based in general customary international law, as well as duties arising from human rights and humanitarian law.

The State is also required to ensure that victims have access to remedies, including judicial remedies, for violations of their rights.

57. As a general matter, a great deal more can and must be done by States to meet their reparations obligations. Governments in many countries visited by the mandate, such as Kenya and Sri Lanka, have not met their obligations, either because they have not created reparations programmes, or because programmes are difficult for victims’ families to access, or because tort remedies have undue jurisdictional impediments. Reparations should also be adequately provided for under post-conflict transitional justice mechanisms. This is often not the case (see A/HRC/14/24/Add.2).

58. Increasingly, and out of concern that paying “reparations” would be an admission of State wrongdoing, Governments involved in armed conflict have created other forms of payments. These “ex gratia” or “condolence” payments are often paid to the families of civilians killed during armed conflict. This practice, particularly by the United States in Afghanistan and Iraq, has important benefits, although problems remain in administration and distribution.

It does not, however, absolve States of their responsibility to acknowledge wrongdoing where it has occurred.

84. Human rights law, humanitarian law and the international law on State responsibility require that individuals should have an effective remedy when their rights are violated, and that the State must provide reparations for its own violations.

States must ensure that victims’ families are able to enforce their right to compensation, through judicial remedies where necessary. In many cases, reparations can mean the difference between the destitution of innocents and their families, and their ability to rebuild their lives and livelihoods.

89. Outside the context of armed conflict, research is also needed on the practices of States in providing effective remedies for violations of the right to life. What obstacles do families experience when attempting to enforce their right to a remedy? What statute of limitations (if any) commonly apply where a victim has been killed? How can States best ensure that unlawful killings are fairly compensated? Where the State is responsible for killings on a large scale, what systems or programmes can best provide and distribute reparations?