R E M E D I E S I N I N T E R N AT I O N A L

H U M A N R I G H T S  L AW
 Remedies in
International Human
Rights Law
Third Edition

D I N A H S H E LTO N

1
 1
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For Chris, Philip, and Elizabeth
 Preface to the Third Edition
During the decade since the previous edition of this book appeared, attention to its sub-
ject matter has substantially increased and there have been further major developments
in the remedial jurisprudence of national and international tribunals. The United
Nations adopted now widely cited principles and guidelines on reparations for gross
and systematic violations of human rights and humanitarian law. The International
Criminal Court developed principles on victim reparations and made its first award.
The International Court of Justice issued its first judgment awarding compensation
for human rights violations. The International Law Commission moved beyond its
articles on the law of state responsibility, including the chapter on reparations, to take
up the issue of the responsibility of international organizations, completing its articles
in 2011. New petition procedures entered into force for United Nations human rights
treaty bodies. The UN Compensation Commission completed its work on redress for
injuries resulting from the 1991 Iraqi invasion of Kuwait, providing one model for
processing mass claims of violations, while the Ethiopia/Eritrea arbitration provided
another.
At the regional level, the Association of South-East Asian Nations created an inter-
governmental commission on human rights and adopted an ASEAN Declaration of
Human Rights. A few states parties to the 2004 Arab Charter on Human Rights together
with non-governmental organizations have held meetings to discuss the establishment
of an Arab Human Rights Court. The African Court of Human Rights issued its first
merits judgment.
National courts and some regional bodies increasingly hear claims for redress brought
not only by victims of recent human rights abuses but also by those who have suffered
from unrepaired historical injustices. Some national courts and regional tribunals have
made pioneering decisions on the justiciability and redress of violations of economic and
social rights. The case load of all human rights tribunals unceasingly increases, leading
to reforms in procedure such as the pilot judgment mechanism in the European Court
of Human Rights and changes in its jurisprudence. This third edition aims to take into
account these developments as well as the constructive remarks of readers and reviewers
of the earlier version.
The book originally emerged from discussions about human rights complaint pro-
cedures in courses and seminars over a number of years. Students often asked what
redress applicants can expect to receive as a result of presenting international claims.
The question became a research project that turned into a law review article that evolved
into the book. During the research and writing, many persons have assisted by provid-
ing materials, discussing issues and criticizing drafts. Without them the book could
not have been completed. Barbara Fontana did the first seminar paper and law review
comment on damages in the European human rights system in 1991. John Blakeley,
Joseph Broussard, Willem Gravett, and Paul Simo provided valuable student assistance
in preparing the first edition.
I am particularly grateful to those in the various international organizations who
answered endless questions and were patient and unstinting with their time. At the
Council of Europe, my thanks go to Hans Christian Kruger, Herbert Petzold, Michael
O’Boyle, Caroline Ravaud, and the judges of the European Court who discussed the
procedures and approaches to remedies in the European system. For the Inter-American
system, this edition benefits from my experience as a member of the Inter-American
viii Preface to the Third Edition

Commission on Human Rights between 2010 and 2014, with all the assistance pro-
vided by the staff of the Commission and the Court, as well as the invaluable knowledge
of the other Commissioners, judges, and representatives of petitioners and governments.
This period and position also brought regular meetings with members of other regional
bodies, including the African Commission and Court and the ASEAN AICHR. A spe-
cial debt is owed to the late Richard Lillich who insisted that I  write this book, to
Alexandre Kiss who insisted that I finish it, to those at OUP, especially John Louth and
Merel Alstein, who made each edition happen, and to Nora Mgabathi, whose contribu-
tions to researching and editing this third edition were invaluable. Finally, I would like
to express gratitude to the American Society of International Law, which awarded the
first edition its Certificate of Merit in 2000.
 Contents
Table of Authorities  xiii 

1 Introduction€ 1
1.1 Evolution of the Law of Remedies  2
1.2 The Innovations of Human Rights Law  7

PART I:╇ THE CONCEPTUAL FRAMEWORK

2 Meanings and Purposes of Remedies€ 13
2.1 Preconditions to a Claim  13
2.1.1 Breach of an obligation  13
2.1.2 Resulting harm  14
2.1.3 Identified or identifiable injured parties  15
2.2 The Dual Meaning of Remedies  16
2.2.1 Access to justice  17
2.2.2 Substantive redress  18
2.3 The Purposes of Remedies  19
2.3.1 Compensatory or remedial justice  19
2.3.2 Condemnation or retribution  20
2.3.3 General and individual deterrence  22
2.3.4 Restorative or transitional justice  22
2.4 Economic Analysis of Remedies  27
2.5 Conclusions  30

3 Sources and General Content of the Law of Remedies€ 32

3.1 General International Law  32
3.1.1 State responsibility  32
3.1.2 The responsibility of international organizations  44
3.1.3 Remedies and business enterprises  51
3.2 Remedies in International Human Rights Instruments  58
3.2.1 The specificity of human rights law  59
3.2.2 Global treaties  63
3.2.3 Regional treaties  67
3.2.4 Declarations and other non-treaty texts  73
3.3 International Humanitarian Law  81
3.4 International Criminal Law  83
3.5 Conclusions  85

PART II:╇ THE INSTITUTIONAL FRAMEWORK

4 Domestic Remedies€ 89
4.1 The Requirement to Exhaust Local Remedies  91
x Contents

4.2 International Standards  94

4.2.1 Access to justice  96
4.2.2 An independent, impartial, and competent tribunal  100
4.2.3 Timely and expeditious proceedings  102
4.2.4 Fair proceedings  104
4.2.5 Redress  106
4.2.6 Sanctions, investigation, prosecution, and punishment  107
4.2.7 The right to the truth  112
4.2.8 Enforcement of judgments  120
4.3 Gross and Systematic Violations  120
4.3.1 Administrative reparations programs  122
4.3.2 Judicial remedies  126
4.4 Conclusions  140

5 International Tribunals  142

5.1 Arbitral Claims for Injury to Aliens  142
5.1.1 Wrongful Death  146
5.1.2 Deprivation of liberty  151
5.1.3 Injury to property  152
5.1.4 Interest  156
5.1.5 Satisfaction  156
5.2 The International Court of Justice  162
5.3 International Criminal Courts  167
5.3.1 The Rome Statute  168
5.3.2 The Trust Fund  170
5.3.3 Developing ICC reparations principles  170
5.4 International Administrative Tribunals  175
5.5 Reparations Following Armed Conflicts  178
5.5.1 Lump sum settlements  180
5.5.2 United Nations Compensation Commission (UNCC)  183
5.5.3 The Ethiopia/Eritrea arbitration  187
5.6 Conclusions  190

6 The Functions and Competence of Human Rights Tribunals  191

6.1 Introduction  191
6.2 The United Nations System  193
6.2.1 United Nations organs and subsidiary bodies  193
6.2.2 United Nations treaty bodies  196
6.2.3 UNESCO  203
6.2.4 The International Labour Organization  204
6.3 Regional Human Rights Systems  205
6.3.1 The European Human Rights System  205
6.3.2 The European Social Charter  219
6.3.3 The European Court of Justice  220
6.3.4 The Inter-American System  224
6.3.5 The African System  232
6.4 Conclusions  238
 Contents xi

PART III:  PROCEDURAL ISSUES

7 Who May Claim Redress?  241
7.1 Individual Victims  241
7.2 Communities and Peoples  249
7.3 Survivability of Claims  254
7.4 Conclusions  256

8 Presentation of Claims  257

8.1 Temporal Jurisdiction  260
8.1.1 Continuing violations  261
8.1.2 Historical injustices  263
8.2 Redressable Injury  278
8.3 Causality and Evidence  279

PART IV:  THE SUBSTANCE OF REDRESS

9 Declaratory Judgments  285

10 Restitution  298
10.1 Cultural Property  298
10.2 Land  301
10.3 Liberty  305
10.4 International Jurisprudence  306

11 Compensation  315
11.1 State Practice  316
11.2 International Human Rights Practice  321
11.2.1 The European Court of Human Rights  321
11.2.2 The Inter-American Court of Human Rights  326
11.3 Pecuniary Damages  330
11.3.1 Valuation  331
11.4 Non-Pecuniary Damages  346
11.4.1 Nature of the injury  348
11.4.2 Equitable nature of awards  350
11.5 Evidence and Presumed Harm  355
11.6 Compensation for Procedural Violations  364
11.7 Distribution of Awards  369
11.8 Inflation, Interest, and Taxation of Damages  371
11.8.1 Discounting and inflation  371
11.8.2 Interest  374
11.8.3 Taxation  375
11.9 Conclusions  375

12 Non-Monetary Remedies  377

12.1 State Practice  379
xii Contents

12.2 International Human Rights Tribunals  383

12.2.1 Rehabilitation  394
12.2.2 Satisfaction  396
12.2.3 Guarantees of non-repetition  397
12.3 Assessing the Need for Non-Monetary Remedies  399
12.4 Conclusions  400

13 Punitive or Exemplary Damages  402

13.1 Enterprise Liability  408
13.2 Awards of Punitive Damages in Human Rights Cases  410
13.3 Conclusions  419

14 Costs and Fees  421

15 Conclusions  432

Bibliography  441
Index  467
 Table of Authorities
COURTS, COMMISSIONS AND TRIBUNALS
Administrative Tribunals
Alfredo del Rio v. IDB, Judgment Case No. 13, 2 Apr. 1987����������������������������������尓�������������������������177
Benjamin Castro v. IDB, Judgment Case No. 7, 11 Oct. 1985 ����������������������������������尓���������������������177
Bluske v. WIPO, ILOAT Judgment No. 1362 of 13 July 1994 ����������������������������������尓������������� 177, 418
Bulsara v. Secretary General of the United Nations, 24 ILR 728 (Admin. Trib. of UN 1957)�������������176
De Alarcon v. WHO, ILOAT Judgment No. 479 of 28 Jan. 1982����������������������������������尓�����������������176
Francois de Backer v. IDB, Case No. 27, 13 Nov. 1992����������������������������������尓���������������������������������178
Franks and Vollering v. EPO, ILOAT Judgment No. 1333 of 31 Jan. 1994 ����������������������������������尓���176
Ghaffar v. WHO, ILOAT Judgment No. 320 of 21 Nov. 1977����������������������������������尓���������������������176
Goyal v. UNESCO, 43 ILR 396 (Int’l Lab. Org. Admin. Trib. [ILOAT] 1969)�������������������������������176
Juan Ramon Duval v. IDB, Judgment Case No. 12, 2 Oct. 1986 ����������������������������������尓�����������������177
Julio C. Cabo v. IDB, Judgment Case No. 16, 13 Nov. 1987����������������������������������尓�������������������������177
Labben v. WHO, ILOAT Judgment No. 1026 of 26 June 1990 ����������������������������������尓�������������������176
Leprince v. UNESCO, ILOAT Judgment No. 942 of 8 Dec. 1988 ����������������������������������尓���������������176
Manaktala v. WHO, ILOAT Judgment No. 1338 of 13 July 1994����������������������������������尓���������������176
Marcelo Nunez Ribeiro v. IDB, Judgment Case No. 14, 3 Apr. 1987����������������������������������尓�������������177
Mariana C. Renart v. IDB, Judgment Case No. 32, 13 Nov. 1992 ����������������������������������尓���������������178
Noel X. Belt v. IDB, Judgment Case No. 29, 13 Nov. 1992����������������������������������尓���������������������������178
Osvaldo S. Rossello v. IDB, Case No. 25, 12 July 1991 ����������������������������������尓���������������������������������178
Tula Amas v. IDB, Judgment Case No. 9, 4 Apr. 1986����������������������������������尓���������������������������������177
Unninayar v. WMO, ILOAT Judgment No. 972 of 27 June 1989 ����������������������������������尓���������������176

African Commission on€Human€Rights

Alhassan Abubakar v. Ghana, Comm. No. 103/93, 6 IHRR 832 (1999)����������������������������������尓�������234
Amnesty International on behalf of Orton and Vera Chirwa v Malawi, 78/92,
8th Annual Activity Report of the African Commission on Human and Peoples’
Rights 1994-1995, Annex VI����������������������������������尓������������������������������������尓�������������������������233
Amnesty Int’l v. Sudan, Comm. Nos. 48/90, 50/91, 52/91, 89/93������������������������������� 93, 94, 116, 233
Annette Pagnoulle on behalf of Abdoulaye Mazou v. Cameroons, Comm. No 39/90 (1997)���������������262
Antoine Bissangou v Republic of Congo, Comm. No. 253/2002, 21st Activity Report of
the African Commission on Human and People’s Rights, 2006, Annex II �����������������������������389
Article 19 v The State of Eritrea, Comm. No. 275 / 2003, 22nd Activity Report of the African
Commission on Human and People’s Rights, 2007, Annex II ������������������������������� 249, 388, 389
Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon,
Comm. No. 272/03, 27th Activity Report of the African Commission on Human and
Peoples’ RIghts, June-November 2009, Annex 3����������������������������������尓���������������������������������390
Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi,
Comm. No. 231/99, 14th Annual Activity Report of the African Commission on
Human and Peoples’ Rights 2000-2001 Annex V����������������������������������尓�������������������������������389
Centre for Minority Rights Development (Kenya) and Minority Rights Group International
on behalf of Endorois Welfare Council v Kenya, Comm. No. 276/2003,
27th Activity Report of the African Commission on Human and
Peoples’ Rights, June-November 2009, Annex 5����������������������������������尓���������������������������������390
Civil Liberties Organization v. Nigeria, Comm. No. 129/94, AGH/207(XXXII) Annex VIII 17�����������101
Comité Cultural Pour la Democratie au Benin, Hilaire Badjougoume, El Hadj Boubacar Diawara
v. Benin (Merits), adopted at the 16th Ordinary Session of the Commission, Oct. 1994���������235
Comité Loosli Bachelard, Lawyers Committee for Human Rights, and Association of
Members of the Episcopal Conference of East Africa v. Sudan, Comm. Nos. 52/91 and 89/93,
Thirteenth Annual Activity Report of the African Commission on Human and Peoples’
Rights 1999–2000����������������������������������尓������������������������������������尓������������������������������������尓����������� 233
Commn Nationale des Droits de l’Homme et des Libertés v. Chad (2000) AHRLR 66���������������� 233, 235
xiv Table of Authorities
Constitutional Rights Project v. Nigeria, Comm. No. 102/93,
1998–9 Afr. Ann. Act. Rep., Annex V����������������������������������尓������������������������������������尓���������������94
Cudjoe v. Ghana, Comm. No. 221/98, 1998–9 Afr. Ann. Act. Rep., Annex V ���������������������������������94
Curtis Francis Doebbler v Sudan, Comm. No. 236/2000, 16th Annual Activity Report of
the African Commission on Human and Peoples’ Rights 2002-2003, Annex VII�������������������388
Embga Mekongo Louis v. Cameroon, Case 59/91, 8th Annual Report of the ACHPR 1994–5,
ACHPR/8th/ACT/RPT/XVII, Annex IX����������������������������������尓������������������������������������尓�������321
Free Legal Assistance Group v. Zaire, Comm. No. 23/89, (1997) 4 IHRR 89��������������������� 93, 233, 234
Interights and Another v Mauritania, Comm. No. 373/06, 28th Activity Report of the African
Commission on Human and Peoples’ Rights, December 2009-May 2010, Annex II �������������389
Jawara v. The Gambia, Comm. Nos. 147/95, 149/96, 1999–2000 Afr. Ann. Act. Rep., Annex V ������������94
John K. Modise v Botswana, Comm. No. 266/2003, 10th Annual Activity Report of
the African Commission on Human and Peoples’ Rights 1996-1997 Annex X�����������������������388
Kenneth Good v Republic of Botswana, Comm. No. 313/05,
28th Activity Report of the African Commission on Human and Peoples’ Rights,
December 2009-May 2010, Annex IV ����������������������������������尓������������������������������������尓��� 235, 389
Kevin Mgwanga Gunme v. Cameroon, Comm. No. 266/2003����������������������������������尓��������������� 250, 388
Kirschna Achutan (on behalf of Aleke Banda) and Amnesty Int’l (on behalf of Orton and
Vera Chirwa) v. Malawi Comms. Nos. 64/92, 68/92, 78/92, 3 IHRR 134�����������������������������234
The Law Office of Ghazi Suleiman v Sudan, Comm. No. 228/99, 16th Annual Activity Report
of the African Commission on Human and Peoples’ Rights 2002-2003, Annex VII���������������388
Lawyers for Human Rights v Swaziland, Comm. No. 251/2002, 18th Annual Activity Report
of the African Commission on Human and Peoples’ Rights 2004-2005, Annex III ������� 389, 435
Legal Resources Foundation v. Zambia, Comm. No. 211/98 (2001)����������������������������������尓���������������435
Malawi Afr. Association v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164/97, 210/98�������������93
Marcel Wetsh’okonda Koso and others v Democratic Republic of Congo, Comm. No. 281/2003,
26th Activity Report, December 2008 - May 2009, Annex 2����������������������������������尓�������� 237, 389
Mouvement Burkinabé des Droits de l’Homme et des Peuples v Burkina Faso,
Comm. No. 204/97, 14th Annual Activity Report of the African Commission on
Human and Peoples’ Rights 2000-2001 Annex V����������������������������������尓�������������������������������389
Mouvement Ivorien des Droits Humains (MIDH) v Côte d’Ivoire, Comm. No. 246/2002,
25th Activity Report of the African Commission on Human and People’s Rights,
May-November 2008 Annex IV����������������������������������尓������������������������������������尓���������������������388
Muthuthurin Njoka v. Kenya, Comm. 142/94, 8th Annual Activity Report 1996-97 (1995)�������������262
Odjouoriby Cossi Paul v Benin, Comm. No. 199/97, 17th Annual Activity Report of the African
Commission on Human and Peoples’ Rights 2003-2004 Annex VII����������������������������������尓���389
Purohit and Moore v the Gambia, Comm. No. 241/2001, 16th Annual Activity Report of the
African Commission on Human and Peoples’ Rights 2002-2003, Annex VII����������������� 388, 435
Soc. & Econ. Rights Action Center v. Nigeria, Comm. No. 155/96, 2001–2 Afr. Ann. Act.�����������������94
Sudan Human Rights Organisation & Centre on Housing Rights and Evictions
(COHRE) v. Sudan, Comm. No. 279/03-296/05, (2009) Afr. Comm. HPR,
45th Sess, Rep. Annex V����������������������������������尓������������������������������������尓������������������� 107, 389, 390
World Organization Against Torture, Lawyers Committee for Human Rights, Union Interafricaine
des Droits de l’Homme, Les Temoins de Jehovah v. Zaire (Merits), Communications 25/89,
47/90, 56/91, 100/93, adopted at the 19th Ordinary Session of the Commission,
Ouagadougou, Burkina Faso, Mar. 1996����������������������������������尓������������������������������������尓���������233
Zimbabwe Human Rights NGO Forum v Zimbabwe, Comm. No. 245/2002,
21st Activity Report, 2006, Annex II����������������������������������尓������������������������������������尓������� 237, 390
Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development
(on behalf of Andrew Barclay Meldrum) v Republic Of Zimbabwe, Comm. No. 294/2004,
26th Activity Report of the African Commission on Human and Peoples’ Rights,
December 2008 - May 2009, Annex 3����������������������������������尓������������������������������������尓�������������389

African Court of€Human and Peoples’€Rights

Tanganyka Law Society et al. v. United Republic of Tanzania, App. Nos. 009/2011, 011/2011
(Judgement of June 14, 2013)����������������������������������尓������������������������������������尓�������������������������238
 Table of Authorities xv
European Commission on€Human€Rights
Austria v. Italy (1961) App. No. 788/60����������������������������������尓������������������������������������尓���������������������60

European Court of€Human€Rights

Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) Series A No 94 ����������������������� 325, 348
Adolf v. Austria (1982) Series A No 49����������������������������������尓������������������������������������尓���������������������360
Agrotexim and Others v Greece (1996) 21 EHRR 250����������������������������������尓�����������������������������������247
Airey v. Ireland (1979) Series A No 32 (Judgment of
9 October 1979)����������������������������������尓���������������������������� 98, 245, 290, 322, 323, 357, 360, 436
Akdivar and others v. Turkey, 1996-IV Reports, 23 EHRR 365������������ 92, 93, 106, 341, 357, 386, 411
Akkoc v. Turkey (2002) 34 EHRR 382����������������������������������尓������������������������������������尓������������� 108, 335
Akkus v. Turkey (1997) Reports 1997-IV, 1300����������������������������������尓������������������������������������尓�������372
Aksakal v. Turkey (2007) App No 51967/99 ����������������������������������尓������������������������������������尓�����������249
Al-Adsani v. United Kingdom App. No. 35763/97 (2001) ECHR 2001-XI 761,
(2001) 34 EHRR 273����������������������������������尓������������������������������������尓������������������������������������尓���44
Allenet de Ribemont v. France (1995) Series A No 308����������������������������������尓����������� 293, 324, 330, 354
Ananyev and Others v. Russia (2012) Application Nos 42525/07 and 60800/08
(Judgment of 10 January 2012)����������������������������������尓������������������������������������尓�����������������������413
Andrejeva v. Latvia [GC] (2009), 51 EHRR 28����������������������������������尓������������������������������������尓�������280
Andreyev v. Estonia (2011) Application No 42987/09 ����������������������������������尓���������������������������������280
Anguelova v. Bulgaria (2002) ECHR Reports 2002-IV (Judgment of 13 June 2002)�����������������������335
Angelucci v. Italy (1991) Series A No 196C ����������������������������������尓������������������������������������尓����� 366, 367
Aquilina v. Malta (2000) EHRR 185 ����������������������������������尓������������������������������������尓������������� 210, 289
Artico v. Italy (1981) Series A No 37, (1980) 3 EHRR 1����������������������������������尓��������������� 290, 323, 348
Arvanitaki-Roboti and Others v. Greece (2006) App No 27278/03 ����������������������������������尓���������������249
Ashingdane v. United Kingdom (1985) Series A No 93 ����������������������������������尓�����������������������������������97
Aslakhanova and Others v. Russia (2012) Application No 2944/06��������������������������������� 215, 349, 387
Assanidze v. Georgia, (2004), Reports 2004-I����������������������������������尓 208, 215, 305, 307, 308, 322, 385
Assenov v. Bulgaria, Reports 1998-VII����������������������������������尓������������������������������������尓���������������������108
Auad v. Bulgaria, (2011) Application No 46390/10����������������������������������尓������������������������������������尓�215
Aydin v. Turkey, (1998) 25 EHRR 251, Reports 1996-VI ����������������������108, 109, 322, 324, 410, 428
Bahnk v. Germany (2008) Application No 10732/05����������������������������������尓�����������������������������������279
Barbera, Messegue, and Jabardo v. Spain, (1994) Series A No 285C��������������������������������� 210, 358, 413
Basoukos v. Greece (2006) Application No 7544/04����������������������������������尓������������������������������������尓�279
Baybasin v. The Netherlands, (2006) Application No 13600/02 ����������������������������������尓�������������������217
Behrami and Behrami v. France (2007) App. No. 71412����������������������������������尓������������������������� 50, 180
Bellet v. France, (1995) Series A No 333B 41����������������������������������尓������������������������������������尓�������������96
Bendenoun v. France, (1994) Series A No 284, (1994) 18 EHRR 54����������������������������������尓�������������105
Benthem v. The Netherlands (1985) Series A No 97����������������������������������尓������������������������������������尓���291
Bladet Tromso & Stensaas v. Norway; 20 May 1999, ECHR. Reports 1999-III 289,
(2000) 29 EHRR 125����������������������������������尓������������������������������������尓������������������������������������尓�322
Bönisch v. Austria (1985) Series A No 92����������������������������������尓��������������105, 293, 358, 361, 413, 436
Borgese v. Italy (1992) Series A No 228B ����������������������������������尓������������������������������������尓�����������������365
Bozano v. France (Art. 50) (1987) Series A No 124E ����������������������������������尓�����������������������������������353
Breierova v. Czech Republic (2002) App. No. 57321/00 ����������������������������������尓�������������������������������310
Brincat and Others v. Malta, (2014) Application Nos 60908/11, 62110/11, 62312/11����������� 322, 430
Broniowski v. Poland [GC] (2002) ECHR 2002-X����������������������������������尓��������������� 213, 262, 309, 386
Broniowski v. Poland (friendly settlement) [GC], (2005) Reports IX����������������������������������尓�������������212
Broniowski v. Poland, (2004) judgment of 22 June 2004, available at http://www.echr.coe.int ����������� 212
Brumarescu v. Romania (Article 41), ECHR 2001-I 155, (2001) 33 EHRR 35 (23 Jan. 2001)����������� 307
Buchholz v. Germany (1981) Series A No 42 ����������������������������������尓������������������������������������尓�����������360
Bursuc v. Romania (2004) Application No 42066/98����������������������������������尓��������������������������� 257, 412
B. v. United Kingdom (1988) Series A No 136D����������������������������������尓������������������������������������尓�������361
Caffe Roversi S.p.a. v. Italy (1992) Series A No 230G����������������������������������尓�����������������������������������367
Cakici v. Turkey (2001) 31 EHRR 5 ����������������������������������尓������������������������������������尓������� 108, 335, 336
Caleffi v. Italy (1991) Series A No 206����������������������������������尓������������������������������������尓������������� 323, 366
xvi Table of Authorities
Campbell and Cosans v. United Kingdom (1982) Series A No 48������������������������������������� 211, 361, 385
Campbell and Fell (1984) Series A No 80�����������������������������������������������������������������������������������������99
Casciaroli v. Italy (1992) Series A No 229C��������������������������������������������������������������������������� 364, 367
Case of Klass and Others (1978) 28 EHRR�������������������������������������������������������������������������������������243
Case of Varnava and Others v. Turkey [GC] (18 September 2009)������������������������������������������� 192, 287
Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’
(1968) Series A No 6�������������������������������������������������������������������������������������������������������������209
Chember v. Russia (2008) Application No 7188/03��������������������������������������������������������������� 257, 412
Christine Goodwin v. the United Kingdom [GC] (2002) ECHR 2002-VI ���������������������������������������387
Cifola v. Italy (1992) Series A No 231A�����������������������������������������������������������������������������������������366
Colozza and Rubinat v. Italy (1985) Series A No 89������������������������������������������������������� 245, 254, 361
Comingersoll SA v. Portugal (2001) EHRR 772 ��������������������������������������������������������������������� 325, 367
Cooperative Parco Cuma v. Italy (1992) Series A No 231F���������������������������������������������������������������367
Crabtree v. the Czech Republic, (2010) Application No 41116/04������������������������������������������� 257, 412
Cruz Varas and others v. Sweden (1991) Series A No 201�����������������������������������������������������������������211
Cyprus v. Turkey [GC] (Just Satisfaction) (2014) App. No. 25781/94���������������������������������������������244
Cyprus v. Turkey (1) and Cyprus v. Turkey (2), (1975) 2 DR 125 (admissibility),
1976 Commission merits report available on HUDOC��������������������������������������������������������250
Cyprus v. Turkey (3), (1978) 13 DR 85, Commission report published in (1992) 13 HRLJ 154 �����������250
Cyprus v. Turkey (4), (merits) Eur. Ct. H.R. 2001-IV [GC] �����������������������������������������������������������250
Dacia S.R.L. v. Moldova (Just Satisfaction) (2009). 48 EHRR SE17��������������������������������������� 217, 411
De Becker v. Belgium (1962) Series A No 4�������������������������������������������������������������������������������������209
De Cubber v. Belgium, (Just Satisfaction) (1987) Application No 9186/80�������������������������������������217
De Geouffre de la Pradelle v. France (1992) Series A No 253B���������������������������������������������������������361
Delcourt v. Belgium (1970) Series A No 11�������������������������������������������������������������������������������������210
Delta v. France (1990) Series A No 191A������������������������������������������������������������������������������� 258, 361
Demades v. Turkey (2003) App. No. 16219/90�������������������������������������������������������������������������������310
Demir and Baykara v. Turkey [GC] [2008] ECHR 1345 (12 November 2008)�������������������������������192
Deumeland v. Germany (1986) Series A No 100��������������������������������������������������������������������� 103, 254
Devenney v. United Kingdom (2002) 35 EHRR 24�������������������������������������������������������������������������324
Devlin v. United Kingdom (2002) 34 EHRR 43�����������������������������������������������������������������������������324
Deweer v. Belgium (1980) Series A No 35, (1980) 2 EHRR 439������������������������������������� 290, 323, 360
De Wilde, Ooms and Versyp cases (Vagrancy cases) (Article 50) (1972)
Series A No 14 ������������������������������������������������������ 208, 209, 245, 307, 323, 354, 360, 385, 436
Dimitrov and Hamanov v. Bulgaria, (2011) Application Nos 48059/06, 2708/09 �������������������������215
Dobrotinic v. Croatia (2003) App. No. 13848/02���������������������������������������������������������������������������310
Dogan and others v. Turkey (2004) App No 8803-8811/02�������������������������������������������������������������247
Doustaly v. France (1998) 70 Reports of Judgments and Decisions 1998-II 850�����������������������������360
Dudgeon v. United Kingdom (1981) Series A No 45��������������������������������211, 286, 291, 292, 293, 360
Eckle v. Germany (1983) Series A No 65 ����������������������������������������������������������������������� 357, 426, 427
Egmez v. Cyprus (2002) 34 EHRR 29 �������������������������������������������������������������������������������������������108
Ekbatani v. Sweden (1988) Series A No 134�����������������������������������������������������������������������������������291
Elsholz v. Germany [GC] (2000) ECHR. 2000-VIII, 34 EHRR 58 �����������������������������������������������280
Engel and others (1976) Series A No 22 ���������������������������� 99, 211, 289, 290, 322, 323, 360, 413, 436
Erdogdu v. Turkey, 15 June 2000, ECHR. Reports 2000-VI 397, (2002) 34 EHRR 60�������������������322
Ergi v. Turkey (1998) CD 726����������������������������������������������������������������������������������������������� 108, 109
Ernst and Others v. Belgium, (2003) Application No 33400/96, (2003) 39 EHRR 35���������������������217
Estima Jorge v. Velásquez-Rodríguez Portugal (1998) Reports 1998-II, 762 �������������������������������������373
Eugenia Michaelidou Developments Ltd v. Turkey (2003) App. No. 16163/90,
(2003) 39 EHRR 772�����������������������������������������������������������������������������������������������������������310
E. v. Norway (1990) Series A No 181A �����������������������������������������������������������������������������������������330
Foucher v. France (1997) EHRR 1997-II 33�����������������������������������������������������������������������������������107
Fayed v. United Kingdom (1994) Series A No 294B �������������������������������������������������������������������������96
Feldbrugge v. The Netherlands (1986) Series A No 99 ���������������������������������������������������������������������293
F.E. v. France (1998) EHRR 1998-VIII, 29 E.HRR, 591��������������������������������������������������������� 96, 280
Findlay v. United Kingdom (1997) EHRR 1997-I, 281 �����������������������������������������������������������������101
Former King of Greece and others v. Greece [GC] (2001) 33 EHRR 516������������������������������������� 99, 338
 Table of Authorities xvii
Foti and Others v. Italy, (1982) Series A No 56�������������������������������������������������������������������������������262
Fox, Campbell and Hartley v. United Kingdom (1990) Series A No 182��������������������������� 291, 322, 346
France, Norway, Denmark, Sweden and the Netherlands v. Turkey resulted in a friendly
settlement, (1985) 44 DR 31, (1985) 6 HRLJ 331 ���������������������������������������������������������������250
Fressoz & Roire v France, 21 Jan. 1999, EHRR 1999-I 1�����������������������������������������������������������������322
Futro v. Poland (dec.) (2000) App. No. 51832/99 �������������������������������������������������������������������������309
F. v. Switzerland (1987) Series A No 128 ,(1987) 10 EHRR 411 ���������������������������������������������������291
Gana v. Italy (1992) Series A No 230-H ���������������������������������������������������������������������������������������365
Gautrin and others v. France (1998) EHRR 1998–III���������������������������������������������������������������������102
Gaygusuz v. Austria (1996) ECHR 1996-IV, 23 EHRR 364�����������������������������������������������������������410
Gencel v. Turkey (2003) Application No 53431/99 (unpublished) �������������������������������������������������386
Gillow v. United Kingdom (1986) Series A No 109, 11 EHRR 335������������������������� 211, 254, 361, 385
Golder v. United Kingdom (1975) Series A No 18��������������������������������������������������������������� 68, 96, 290
Goodwin v United Kingdom [GC] (2002) 35 EHRR 18�����������������������������������������������������������������346
Gorodnitchev v. Russia (2007) Application No 52058/99������������������������������������������������������� 257, 412
Gratzinger and Gratzingerova v. Czech Republic [GC] (2002) 2002-VII 399��������������������������� 200, 310
Greece v. United Kingdom, (1956) Yb 2, 182, Commission report published in (1997)
18 HRLJ 348�����������������������������������������������������������������������������������������������������������������������250
Greece v. United Kingdom, (1957) 2 Yb 186, Committee of Ministers, Res. DH(2006) 24�������������250
Guerra & Others v. Italy, (GC) (Merits and Just Satisfaction), App No 14967/89, [1998]
ECHR 7, ECHR 1998-I, (1998) 26 EHRR 357�������������������������������������������������������������������241
Guiso-Gallisay v. Italy (Just Satisfaction) (GC) (2009), App No 58858/00����������������� 9, 326, 345, 411
Gülec v. Turkey (1998) 1998-IV, No. 80 ������������������������������������������������������������������������������� 108, 254
Gürbüz v. Turkey (2005) Application No 26050/04 (Judgment of 10 Nov 2005)���������������������������413
Gul v. Turkey (2002) 34 EHRR 28 �����������������������������������������������������������������������������������������������103
Gulec v. Turkey, Reports 1998-IV, (1999) 28 EHRR 121������������������������������������������������������� 108, 254
Gulmez v. Turkey, (2008) Application No 16330/02, not reported�������������������������������������������������215
Guzzardi v. Italy (1980) Series A No 39������������������������������������������������������������������������� 210, 290, 323
Hakkansson and Sturesson v. Sweden (1990) Series A No 171A�������������������������������������������������������357
Hokkanen v. Finland (1994) Series A No 299���������������������������������������������������������������������������������324
Halford, v. the United Kingdom (1997) ECHR 1997-III, 24 EHRR 523��������������������������������� 280, 323
Handyside v. United Kingdom (1976) Series A No 24����������������������������������������������������� 210, 322, 360
Han v. Turkey, (2005) Application No. 50997/99�������������������������������������������������������������������������288
Hartman v. Czech Republic (2002) App. No. 53341/99 Reports 2003-VIII (extracts)���������������������310
Hauschildt v. Denmark (1989) Series A No 154�����������������������������������������������������������������������������291
Hennings v. Germany, (1992) Series A No 251A�������������������������������������������������������������������������������97
Hentrich v. France (1994) Series A No 296-A, 18 EHRR 440����������������������������������������� 307, 324, 339
The Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy)
and Others v. Bulgaria (Just Satisfaction), Application Nos. 412/03 & 35677/04,
(Judgment of 16 September 2010) ���������������������������������������������������������������������������������������210
Hornsby v. Greece (1998) 69 Reports 1998-II 727 �������������������������������������������������������������������������357
Houfova v. Czech Republic (partial dec.) (2003) App. No. 58177/00�����������������������������������������������310
H. v. United Kingdom (1988) Series A No 136B�����������������������������������������������������������������������������361
Ibrahim Aksoy v. Turkey, 10 Oct. 2000, (2002) 34 EHRR 57���������������������������������������������������������322
Idrocalco v. Italy (1992) Series A No 229F�������������������������������������������������������������������������������������367
Igor Ivanov v. Russia (2007) Application No 34000/02����������������������������������������������������������� 257, 412
Ilascu and others v. Moldova and Russia, [GC] (2004) Reports-VII, (2004) 40 EHRR 1030������������212, 438
Ilhan v. Turkey (2002) 34 EHRR 36 ������������������������������������������������������������������������������������� 108, 244
Incal v. Turkey, [GC] (1998) Reports-IV���������������������������������������������������������������������������������������216
Ioannis Anastasiadis and Others v. Greece, (2013) Application No 45823/08�����������������������������������325
Ireland v. United Kingdom (1978) Series A No 25 ��������������������������������������������������������������������� 60, 92
Isayeva v. Russia (2005) App. No. 57950/00 ����������������������������������������������������������������������������� 83, 95
Istrate v. Moldova (2006) Application No 53773/00 ���������������������������������������������������������������������326
Ivanovic v. Slovak Republic (1998) App. No. 37892/97������������������������������������������������������������������310
James v. United Kingdom (1986) Series A No 98��������������������������������������������������������������������� 338, 339
Jelicic v. Bosnia and Herzegovina (2006) App. No. 41183/02���������������������������������������������������������130
Johnston and others v. Ireland (1986) Series A No 112������������������������������������������������������������� 211, 291
xviii Table of Authorities
Jordan v. U.K. (2001) 31 EHRR���������������������������������������������������������������������������������������������������106
Kadikis v. Latvia (no. 2) (2006) Application No 62393/00 �����������������������������������������������������������280
Kakamoukas and Others v. Greece (2006) App No 38311/02 ���������������������������������������������������������249
Kalogeropoulou et al. v. Greece and Germany, App. No. 5902/21/00 �����������������������������������������������183
Karner v. Austria (Judgment of 24 July 2003) 38 EHRR 24 (2004)��������������������������������������� 192, 216
Kaufman v. Belgium (1972) 42 CD 145�����������������������������������������������������������������������������������������105
Kaya v. Turkey, EHRR 1998-I 297, (1998) 28 EHRR 1��������������������������������������������������������� 108, 109
Khashiyev and Akayeva v. Russia (merits and just satisfaction)(2005) App. No. 57942/00�����������������83
Khudyakova v. Russia (2009) Application No 13476/04��������������������������������������������������������� 257, 412
Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976) Series A No 23 �����������������������������������������322
Kilic v. Turkey (2001) 33 EHRR 58�����������������������������������������������������������������������������������������������108
Kingsley v. UK (2002) 33 EHRR 13�����������������������������������������������������������������������������������������������210
Klass and others v. Germany (1979) Series A No 28����������������������������������������������������������� 68, 243, 357
Konig v. Republic of Germany (1979) Series A No 27 ���������������������������������������������������������������������290
Kopecký v. Slovakia (2004) App. No. 44912/98, ECHR 2004-IX, [2004] ECHR 446,
(2005) 41 EHRR 43�������������������������������������������������������������������������������������������������������������309
Korbely v. Hungary, (2008)(GC) App. No. 9174/02, Reports 2008�������������������������������������������������83
Kounov v. Bulgaria (2006) Application No 24379/02 �������������������������������������������������������������������386
Kruslin v. France (1990) Series A No 176A ��������������������������������������������������������������������������� 294, 436
Kurt v. Turkey (1998) Reports 1998-III, p. 1152, (1999) 27 EHRR 373 ����������92, 108, 243, 323, 428
Lastuvkova and Mrazek v. Czech Republic (2002) App. No. 72059/01��������������������������������������������310
Lawless v. Ireland (Merits) (1961) Series A No 1 EHRR 15 ������������������������������������������� 209, 322, 357
Lawless v. Ireland (Preliminary Objections) (1960) Series A no 1�����������������������������������������������������209
Leander v. Sweden (1987) Series A No 116���������������������������������������������������������������������������������������97
Lechner and Hess v. Austria (1987) Series A No 118, 9 EHRR 490����������������������������������������� 279, 362
Le Compte, Van Leuven and De Meyere v. Belgium (1982) Series A No 54, 5 EHRR 183 �������� 245, 357,
360, 385
Lehideuz & Isorni v. France, 23 Sept. 1998, (2000) 30 EHRR 665�������������������������������������������������322
Lestini v. Italy (1992) Series A No 228-E������������������������������������������������������������������������������� 103, 365
Levages Prestations Services v. France, (1997) 24 EHRR 3, 1996–V Reports �������������������������������������96
Lingens v. Austria (1986) Series A No 103�������������������������������������������������������������������������������������324
Loizidou v. Turkey (1996) Reports 1996-V 2216, 23 EHRR 513�����������308, 309, 310, 311, 342, 348,
349, 437
Lopes Gomes da Silva v. Portugal, 28 Sept. 2000, Reports 2000-X 85, (2002) 34 EHRR 56�������������322
López Ostra v. Spain (1994) Series A No 303C�������������������������������������������������������������������������������324
Lo Tufo v. Italy, (2005) Application No 64663/01�������������������������������������������������������������������������217
Luedicke, Belkacem and Koç v. Germany (1980) Series A No 36, 2 EHRR 433����������������� 245, 354, 436
Lukenda v. Slovenia, (2005) Application No 23032/0 ����������������������������������������������������������� 215, 387
Lundevall v. Sweden (2002) Application No 38629/97�������������������������������������������������������������������384
Lungoci v. Romania (2006) Application No. 62710/00 �����������������������������������������������������������������288
Lupsa v. Romania (2006) Reports 2006-VII�����������������������������������������������������������������������������������166
Lustig-Prean and Beckett v. The United Kingdom (1999)
Application Nos. 31417/96 & 32377/96, [1999] ECHR 71 (27 September 1999) ���������������411
L. v. Lithuania, (2007) Application No 27527�������������������������������������������������������������������������������215
Nazarenko v. Ukraine (2003) Application No 39483/98 ������������������������������������������������������� 257, 412
Maestri v. Italy, (2004) ECHR 76�������������������������������������������������������������������������������������������������215
Malone v. United Kingdom (1984) Series A No 82���������������������������������������������������������������������������68
Maltzan v. Germany (2005) App. Nos. 71916/01, 71917/01, 10260/02 ���������������������������������������309
Mamatkulov, App No 46827/99���������������������������������������������������������������������������������������������������192
M. and Others v. Bulgaria (2011) Application No, 41416/08���������������������������������������������������������387
Manifatture v. Italy (1992) Series A No 230B���������������������������������������������������������������������������������367
Manole and Others v. Moldova (2009).Application No 13936/02���������������������������������������������������215
Marckx v. Belgium (1979) Series A No 31, (1979 [1979] ECHR 2, (1980) 2 EHRR�������������� 330, 385
Matos e Silva, Lda., and Others v. Portugal (1997) Series A No 24�����������������������������������������������������53
Matznetter v. Austria (1969) Series A No 10��������������������������������������������������������������������������� 211, 436
Mayzit v. Russia (2005) Application No 63378/00����������������������������������������������������������������� 257, 412
McCann and others v. United Kingdom (1995) Series A No 324 ������������������������������������� 108, 109, 335
 Table of Authorities xix
McGoff v. Sweden (1984) Series A No 83���������������������������������������������������������������������������������������211
McKerr v. U.K. (2002) 34 EHRR 20���������������������������������������������������������������������������������������������108
Megyeri v. Germany (1992) Series A No 237A�������������������������������������������������������������������������������364
Mehemi v. France, (1997) Reports 1997-VI�����������������������������������������������������������������������������������211
Mennitto v. Italy (2000) 2000-X (2002) 34 EHRR 1122���������������������������������������������������������������103
Mentes and others v. Turkey (1997) ECHR Reports 1997-VIII 2693,
(1998) 26 EHRR 595 (28 Nov 1997)��������������������������������������������108, 289, 341, 357, 373, 411
Merit v. Ukraine (2004) Application No 66561/01�����������������������������������������������������������������������279
Migon v. Poland (2002), Application No 24244/94�����������������������������������������������������������������������322
Mikheyev v. Russia, (2006) Application No 77617/01 ����������������������������������������������������������� 217, 326
Minelli v. Switzerland (1983) 5 EHRR 554�����������������������������������������������������������������������������������323
Mokrani v. France (2003) Application No 52206/99 (Judgment of 15 July 2003)���������������������������413
Moreira de Azevedo v. Portugal (Merits) (1990) Series A No 189A; (Art 50) (1991)
Series A No 208C�����������������������������������������������������������������������������������������������������������������358
Mosca v. Italy,(2000) 43 YB No. 60�����������������������������������������������������������������������������������������������103
Multiplex v. Croatia (2002) Application No. 58112/00��������������������������������������������������������� 309, 310
Nachova and others v. Bulgaria (2004) Application Nos 43577/98, 43579/98���������������������������������336
Nada v. Switzerland (2012) Application No. 10593/08�������������������������������������������������������������������51
Nadbiskupija Zagrebacka v. Slovenia (2004) Application No. 60376/00�����������������������������������������310
National Union of Belgian Police v. Belgium (1975) Series A No 19����������������������������������������� 211, 322
Nazarenko v. Ukraine (2003) Application No 39483/98 (Judgment of 29 April 2003)����������� 257, 412
Neumeister v. Austria (Article 50) (1974) Series A No 17 ������������������������������������������������������� 307, 323
Neumeister v. Austria (Merits) (1968) Series A No 8�����������������������������������������������������������������������209
Nibbio v. Italy (1992) Series A No 228A ���������������������������������������������������������������������������������������365
Nielsen v. Denmark (1989) 11 EHRR 175�������������������������������������������������������������������������������������244
Nikolova v. Bulgaria (2001) 30 EHRR 878������������������������������������������������������������������� 210, 322, 346
Nilsen & Johnsen v. Norway (1999) Reports 1999-VIII 57, (2000) 30 EHRR 878 �������������������������322
Norris v. Ireland (1988) Series A No 142, (1988) 13 EHRR 186 ���������������������������������������������������291
OAO Neftyanaya Kompaniya Yukos v. Russia (Just Satisfaction) (2014) App. No. 14902/04�����������247, 343
Obermeier v. Austria (1990) Series A No 179���������������������������������������������������������������������������������103
Ocalan v. Turkey (2003) Application No 46221/99�����������������������������������������������������������������������386
Öztürk v. Germany (Article 50) (1984) Series A No 85�������������������������������������������������������������������428
Oferta Pius SRL v. Moldova (Just Satisfaction) (2008) Application No. 14385/04
(Judgment of 12 February 2008)�������������������������������������������������������������������������������������������411
Ogur v. Turkey (2001) 31 EHRR 912 �������������������������������������������������������������������������������������������108
O’Keeffe v. Ireland [GC] (2014) Application No 35810/09������������������������������������������������������������322
Okyay v. Turkey, Reports 2005-VII (12 July), 43 EHRR 788 (2006) ���������������������������������������������120
Olsson v. Sweden (No. 2) (1990) Series A No 250������������������������������������������������������������������� 324, 426
Onen v. Turkey (2002) Application No 22876/93 �������������������������������������������������������������������������336
Oneryildiz v. Turkey [GC], Application No. 48939/99, 2004-XII (2004) 41 EHRR 20������������14, 108, 335
Open Door and Dublin Well Woman v. Ireland (1993) Series A No 246
(judgment of 29 Oct. 1992).�������������������������������������������������������������������������������������������������324
Ouranio Toxo and Others v. Greece (2005) ECHR 2005-X, 45 EHRR 8�����������������������������������������410
O. v. United Kingdom (1987) Application No 9276/81 Series A No 136A�������������������������������������361
Oyal v. Turkey, (2010) Application No 4864/05 ���������������������������������������������������������������������������325
Pakelli v. Germany (1983) Series A No 64 �������������������������������������������������������������������������������������360
Papamichalopoulos and others v. Greece (Art. 50) (1995)
Series A No 330B���������������������������������������������������� 42, 211, 212, 259, 307, 310, 337, 338, 339
Paudicio v. Italy (2007) Application No. 77606/01 �����������������������������������������������������������������������288
Paul and Audrey Edwards v U.K. (2002) Reports 2002-II���������������������������������������������������������������288
Paulsen-Medalen and Svensson v. Sweden (1998) 26 EHRR 260�����������������������������������������������������322
Perks v. United Kingdom (2000) 30 EHRR 33�������������������������������������������������������������������������������322
Philis v. Greece (1991) Series A No 209�����������������������������������������������������������������������������������������357
Piersack v. Belgium, (1984) Application No 8692/79 Series A No 53, (1982) 5 EHRR 169 �����������217
Pine Valley Developments Ltd and Others v. Ireland (1991) Application No. 12742/87
Series A No 222 14 EHRR 319 (merits); (1993) Series A No 246-B
(just satisfaction) ��������������������������������������������������������������������������������������������������� 53, 259, 330
xx Table of Authorities
Põder v. Estonia (2005) Application No. 67723/01 �����������������������������������������������������������������������310
Poenaru v. Romania (2001) Application No. 51864/99�����������������������������������������������������������������310
Polacek and Polackova v. Czech Republic (Grand Chamber) (2002)
Application No. 38645/97������������������������������������������������������������������������������������������� 310, 311
Popovitsi v. Greece (2010) Application No. 53451/07���������������������������������������������������������������������388
Powell and Rayner v. United Kingdom (1990) Series A No 106���������������������������������������������������������92
Pretty v United Kingdom (2002) Application No 2346/02, [2002] ECHR 423�������������������������������346
Prince Hans-Adam II of Liechtenstein v. Germany, (2001) Reports 2001-VIII 1�������������������������������310
Proszak v. Poland (1997) ECHR 1997-VIII�����������������������������������������������������������������������������������262
Ribitsch v. Austria (1995) 21 EHHR 573���������������������������������������������������������������������������������������348
Richert v. Poland (2011) Application No 54809/07�����������������������������������������������������������������������280
Ridi v. Italy (1992) Series A No 229B �������������������������������������������������������������������������������������������366
Ringeisen v. Austria (1971) Series A No 1, (1971) 1 EHRR 455����������������������������� 209, 290, 360, 436
Ruiz Mateos v. Spain (1993) Series A No 262, 16 EHRR 505������������������������������������������������� 105, 357
Ruotolo v. Italy (1992) Series A No 230-D��������������������������������������������������������������������� 103, 360, 365
Rusu v. Austria (2008) Application No 34082/02 ����������������������������������������������������������������� 257, 412
R. v. United Kingdom (1988) Series A No 136E�����������������������������������������������������������������������������361
Sabeh El Leil v. France (2010) [GC], [2010 ECHR 1055, 54 EHRR 14�����������������������������������������280
Sakik v. Turkey (1998) 26 EHRR 662�������������������������������������������������������������������������������������������324
Salah v. The Netherlands, (2006), Application No 1948/04 �����������������������������������������������������������216
Salesi v. Italy (1993) Series A No 257E������������������������������������������������������������������������������������� 99, 103
Salman v. Turkey (2002) 34 EHRR 17����������������������������������������������������������������������������������� 108, 335
Sara Lind Eggertsdóttir v. Iceland (2007) Application No 31930/04�����������������������������������������������413
Saramati v. France, Germany and Norway (dec. inadm.) (2007) Application No 78166/01���������������50
Savriddin Dzhurayev v. Russia (2013) Application No. 71386/10���������������������������������������������������210
Schouten and Meldrum v. the Netherlands (1994) Series A No 304 �������������������������������������������������103
Schmidt and Dahlstrom v. Sweden (1976) Series A No 21���������������������������������������������������������������322
Schuler-Zgraggen v. Switzerland (1993) Series A No 263�������������������������������������������������������������������99
SC Marolux SRL and Jacobs v. Romania (2008) Application No. 29419/02�������������������������������������288
Scollo v. Italy (1995) Series A No 315���������������������������������������������������������������������������������������������323
Scozzari and Giunta v. Italy (2000) Application Nos. 39221/98 & 41963/98���������������������������������210
Scozzari and Giunta v. Italy (2002) 35 EHRR 12����������������������������������������������������������� 212, 214, 387
Seceleanu and others v. Romania (2010) Application No 2915/02���������������������������������������������������279
Selçuk and Asker v. Turkey (1998) 71 Reports 1998-II 891, (1998) 26 EHRR 477
(Judgment of 24 Apr 1998)����������������������������������������������������������������������93, 108, 341, 357, 410
Selmouni v. France (1997) Series A No 88-B ���������������������������������������������������������������������������������102
Sidiropoulos and others v. Greece (1998) Application No 26695/95�������������������������������������������������348
Silver v. United Kingdom (1983) Series A No 61, (1979-80) 2 EHHR 214��������������� 68, 291, 410, 427
Skarby v. Sweden (1990) Series A No 180B �����������������������������������������������������������������������������������367
Skoogstrom v. Sweden (1984) Series A No 83 ���������������������������������������������������������������������������������258
Slivenko v. Latvia [GC] (2002) Reports 2002-II 467���������������������������������������������������������������������310
S.L. v. Austria (2003) Application No 45330/99 ECHR 2003-I ���������������������������������������������������413
Soering v. United Kingdom (1989) Series A No 161 (1989) 11 EHRR 439�������������������������������������293
Somoggyi v Italy; Sejdovic v. Italy (2004) ECHR 2004-IV 103 �������������������������������������������������������386
SP, DP and T v. UK (2002) 22 EHRR CD 148�����������������������������������������������������������������������������244
Sporrong and Lonnroth v. Sweden (1982) Series A No 52���������������������������������������� 259, 338, 339, 413
Stamoulakatos v. Greece (No. 1) (1993) Series A No 271; 17 EHRR 479�����������������������������������������262
Stitching Mothers of Srebrenica and Others v. The Netherlands (2013) Application no 65542/12���������50
Stork v. Germany (2006) 43 EHRR 96�������������������������������������������������������������������������������������������280
Stran Greek Refineries and Stratis Andreadis v. Greece (1994)
19 EHRR 293 ��������������������������������������������������������������������������������������241, 310, 311, 342, 343
Stubbings v. United Kingdom, (1997) 23 EHRR 213 �����������������������������������������������������������������������97
Styranowski v. Poland (1998) Reports 1998-VIII���������������������������������������������������������������������������262
Sunday Times v. United Kingdom (1979) Series A No 30����������������������������������211, 257, 258, 290, 424
Sutter v. Switzerland (1948) Series A No 74�����������������������������������������������������������������������������������360
Swedish Engine Drivers’ Union v. Sweden (1976) Series A No 20����������������������������� 106, 322, 357, 360
Swierzko v. Poland (2006) Application No 9013/02��������������������������������������������������������������� 289, 326
 Table of Authorities xxi
Tahir Duran v. Turkey (2004) Application No 40997/98����������������������������������尓�����������������������������386
Tanrikulu v. Turkey (2000) 30 EHRR 950����������������������������������尓������������������������������������尓���������������108
Tas v. Turkey (2001) 33 EHRR 15����������������������������������尓������������������������������������尓����������� 108, 114, 232
Teixeira de Castro v. Portugal (1998) Reports 1998-IV, [1999] 28 EHRR 101������������������������� 166, 359
Tekin v. Turkey (2001) 31 EHRR 95����������������������������������尓������������������������������������尓������� 108, 322, 411
Timurtas v. Turkey (2001) 33 EHRR 6 ����������������������������������尓������������������������������������尓�������������������108
Tomasic v. Croatia, (2006) Application No 21753/02 ����������������������������������尓���������������������������������325
Tomasi v. France (1992) Series A No 241A����������������������������������尓������������������������������������尓���������������354
T.P. and K.M. v. the United Kingdom [GC] (2001) ECHR. 2001-V, 34 EHRR 2 ������������������� 280, 288
Trevalec v. Belgium, (Just Satisfaction) (2013) Application No 30812/07����������������������� 325, 411, 412
Triggiani v. Italy (1991) Series A No 197����������������������������������尓������������������������������������尓� 323, 366, 367
Tsirlis and Kouloumpas v. Greece (1998) 25 EHRR 198 ����������������������������������尓�������������������������������346
Tusa v. Italy (1992) Series A No 231-D����������������������������������尓������������������������������������尓�������������������364
Tyrer v. United Kingdom (1978) Series A No 26, (1978) 2 EHRR 1 ����������������������������������尓����� 290, 323
Unterpertinger v. Austria (1986) 15 EHRR 175����������������������������������尓������������������������������������尓�������288
Van Der Leer v. The Netherlands (1990) Series A No 170 ����������������������������������尓�����������������������������324
Van der Mussele v. Belgium (1983) Series A No 70 ����������������������������������尓������������������������������������尓���360
Van Mechelen and others v. The Netherlands (Art. 50) (1997) 56 Reports 1997-VII 2426�����������������359
Van Oosterwijck v. Belgium (1980) Series A No 40����������������������������������尓������������������������������������尓�����93
Varnava and others v. Turkey [GC] (2009) 50 EHRR 21����������������������������������尓���������������������� 192, 287
VC v Slovakia (2011) Application No 18968/07����������������������������������尓������������������������������������尓�����346
Verein Gegen Tierfabriken Schweiz (Vgt) v. Switzerland (2001) ECHR Reports 2001-VI�������������������53
Verein gegen Tierfabriken (Vgt) v. Switzerland (2002) 34 EHRR 4����������������������������������尓�����������������215
Vermeire v. Belgium (1991) Series A No 214C����������������������������������尓������������������������������������尓���������216
Vidal v. Belgium (1992) Series A No 235B����������������������������������尓������������������������������������尓���������������358
Vistins and Perepjolkins v. Latvia [GC] (2012) Application No 71243/01������������������������������� 325, 344
Vocaturo v. Italy (1991) Series A No 206-C ����������������������������������尓������������������������� 103, 323, 365, 366
Volkov v. Ukraine, (2013) Application No 21722/11����������������������������������尓������������������� 211, 215, 217
Weeks v. United Kingdom (Art. 50) (1988) Series A No 145A����������������������������������尓�����������������������358
Welch v. United Kingdom (1995) Series A No 307, (1995) 20 EHRR 247����������������������������������尓�����294
Wemhoff v. Germany (1968) Series A No 7����������������������������������尓������������������������������������尓���������������209
W. v. United Kingdom (1988) Series A No 136-C����������������������������������尓��������������������������������� 324, 361
X and Y v. The Netherlands (1985) Series A No 91 ����������������������������������尓������������������������������������尓���293
Xenides-Arestis v. Turkey (2005) App no 46347/99, (2007) 44 EHRR SE13����������������������������������尓�413
X v. Austria, App. No. 5362/72, 2 CD 145 (1972)����������������������������������尓������������������������������������尓�����99
X. v. Croatia, (2008) Application No 1223/04����������������������������������尓������������������������������������尓���������257
X v. France (1992) Series A No 232����������������������������������尓������������������������������������尓����������������� 103, 323
X v. United Kingdom (1982) Series A No 55����������������������������������尓������������������������� 254, 360, 385, 428
Yagçi and Sargin v. Turkey (1995) Series A No 319A����������������������������������尓������������������������������������尓�386
Yakisan v. Turkey, (2007) Application No 11339/03 ����������������������������������尓�����������������������������������217
Yasa v. Turkey, Reports (1998) Reports 1998-VI, (1999) 28 EHRR 408 ����������������������������������尓�����108
Young, James and Webster (1981) Series A No 44 ����������������������������������尓����������������� 324, 330, 348, 427
Youth Initiative for Human Rights v. Serbia, (2013) Application No 48135/06 �������������������������������217
Zana v. Turkey (1997) ECHR 1997-VII; 27 EHRR 667����������������������������������尓�����������������������������262
Zanghi v. Italy (1991) Series A No 194C����������������������������������尓������������������������������������尓�����������������386
Z. and others v. United Kingdom (2002) 34 EHRR 3 ����������������������������������尓�����������������������������������216

European Court of€Justice

Acciaieria Ferrieradi Roma v. High Authority [1959] ECR 245 ����������������������������������尓���������������������295
Borelli SpA v. Commission, Case C97/91, [1993] ECR I-6313����������������������������������尓���������������������222
Brasserie de Pecheur [1996] ECR I-1029 ����������������������������������尓������������������������������������尓�����������������224
Dekker v. v Stichting Vormingscentrum voor Jong. Volwassenen, Case C-177/88, [1990] ECR I-3941��������221
Francovich and Bonifaci v. Italian Republic [1991] 1 ECR I-5357����������������������������������尓�����������������220
Greenpeace Council and Others v. Commission [1998] ECR I-1651����������������������������������尓���������������222
Grifoni v. EAEC [1994] ECR I-341����������������������������������尓������������������������������������尓�������������������������351
Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, [1980] 3 CMLR 42, (1981) 3, EHRR 140�������������220
Humblet v. Belgium [1960] ECR 559 ����������������������������������尓������������������������������������尓������������� 220, 224
xxii Table of Authorities
Internationale Handelsgesellschaft [1970] ECR 1125 ����������������������������������尓�����������������������������������220
Ireks-Arkady GmbH v. Council and Comm’n, [1979] ECR 29 221����������������������������������尓����������������374
Jego-Quere et Cie SA v. Commission, [2002] ECR II-2365, [2002] 2 CMLR 44�������������������������������223
Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 �������������������������������221
Kurt Kampffmeyer Muhlenvereinigung KG and others v. Commission,
Joined Cases 56–60/74, (1976) ECR 711����������������������������������尓������������������������������������尓�������295
Leussink-Brummeljuis v. Commission, Joined Cases 169/83 and 136/84, [1986] ECR 2801 �����������351
Lesieur, Cotelle et Associés, S.A. v. Commission [1976] ECR 391����������������������������������尓��������������������295
“Les Verts” v. European Parliament, [1988] ECR 1339 ����������������������������������尓���������������������������������222
Louis Worms v. High Authority (1962) ECR 195����������������������������������尓������������������������������������尓�������295
Marshall v. Southampton and Southwest Hampshire Area Health Authority
[1986] ECR 723, [1986] 1 CMLR 688����������������������������������尓������������������������������������尓�����������221
Marshall II [1993] ECR I-4400, [1993] 3 CMLR 293 ����������������������������������尓�������������������������������221
Metallurgique Hainaut-Sambre v. High Authority (1965) ECR 1099����������������������������������尓�������������295
Miss B. v. Commission [1979] ECR 2819����������������������������������尓������������������������������������尓�����������������351
Mrs V. v. Commission [1979] ECR 2093 ����������������������������������尓������������������������������������尓�����������������351
Mulder and others v. Council and Comm’n [1992] ECR I-3061����������������������������������尓���������������������375
Nold v. Commission (Nold II) [1974] ECR 491 ����������������������������������尓������������������������������������尓�������220
P. Dumortier Freres SA v. Council [1979] ECR 3091����������������������������������尓������������������������������������尓�374
P&O European Ferries (Vizcaya) v Commission, Joined Cases T-116/01 and T-18/01,
[2003] ECR����������������������������������尓������������������������������������尓������������������������������������尓���������������222
Philip Morris International Inc. and Others v. Commission, Joined Cases T-377/00,
T-379/00, T-380/00, T-260/01 and T-272/01, [2003] ECR ����������������������������������尓���������������222
Plaumann & Co. V. Commission, [1963] ECR 95����������������������������������尓������������������������������������尓�����222
R. V. Secretary of State for Health ex parte British American Tobacco (Investments) Ltd.
And Imperial Tobacco Ltd., [2002] ECR I-11453; [2003] 1 CMLR 14����������������������������������尓�223
Salamander and Others v. Parliament and Council, [2000] ECR II-2487����������������������������������尓�������223
Sergy v. Commission [1976] ECR 1139 ����������������������������������尓������������������������������������尓�������������������375
Sofrimport v. Commission [1990] ECR I-2477����������������������������������尓������������������������������������尓���������375
The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd.
And Imperial Tobacco Ltd, [2002] ECR I-11453 ����������������������������������尓���������������������������������223
Stauder v. Ulm [1969] ECR 419����������������������������������尓������������������������������������尓�����������������������������220
UNECTEF v. Heylans and others [1987] ECR 4097����������������������������������尓������������������������������������尓�221
Union de Penquenos Agricultores (UPA) v. Council, Case No 1638/98 [2002] 3 CMLR 1�����������������222
Vaneetveld v. Le Foyer SA and Le Foyer SA v. Federation des Mutualites Socialistes et Syndicales
de la Province de Liege, Case C-316/93, [1994] E.C.R. 1-763, [1994] 2 C.M.L.R. 852�����������223
Von Colson and Kamann v. Lord Nordrhein-Westfalen [1984] ECR 1891��������������������������������� 221, 418
Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the
European Union [2008] ECR I-6351����������������������������������尓������������������������������������尓�����������������51

Extraordinary Chambers in€the Courts of€Cambodia

Case 001 (26 July 2010)����������������������������������尓������������������������������������尓������������������������������������尓�����128
Case No. 002 1 (30 Aug 2010)����������������������������������尓������������������������������������尓�������������������������������127

Human Rights Chamber for€Bosnia and Herzegovina

Blentic v. Republika Srpska, CH/97/17 (Dec. 3, 1997)����������������������������������尓���������������������������������130
Bojkovski v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina,
CH/97/73 (Apr. 6, 2001)����������������������������������尓������������������������������������尓�������������������������������131
Damjanovic v. Federation of Bosnia and Herzegovina, CH/96/30 (Oct. 8, 1997)�����������������������������132
E.M. and S.T. v. Federation of Bosnia and Herzegovina, CH/01/69 (2002) ����������������������������������尓���132
Galic v. Federation of Bosnia and Herzegovina, CH/97/40 (June 12, 1998)����������������������������������尓���132
Hermas v. Federation Bosnia and Herzegovina, CH/96/45 (1998)����������������������������������尓��������� 130, 133
Islamic Community in Bosnia and Herzegovina v. Republika Srpska, CH/96/29
(June 1, 1999) ����������������������������������尓������������������������������������尓������������������������������������尓�����������133
Juric v. Federation of Bosnia and Herzegovina, CH/98/394 (Dec. 10, 1999) ����������������������������������尓�131
Malic v. Federation of Bosnia and Herzegovina, CH/97/35 (Dec. 5, 1997)����������������������������������尓�����132
Matanovic v. Republika Srpska, (Decision on Admissibility), CH/96/1 (1997)�������������������������������130
 Table of Authorities xxiii
Medan v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina,
CH/96/8 (Nov. 3, 1997)����������������������������������尓������������������������������������尓���������������������������������131
M.K. v. Federation of Bosnia and Herzegovina, CH/98/565 (Dec. 22, 2003)����������������������������������尓�132
O.K.K. v. Republika Srpska, CH/98/834, at 10 (Mar. 9, 2001)����������������������������������尓���������������������131
Palic v. Republika Srpska, CH99/3196 (2001)����������������������������������尓������������������������������������尓���������132
Poropat v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina,
CH/97/48 (June 9, 2000)����������������������������������尓������������������������������������尓����������������������� 130, 131
Rajic v. Federation of Bosnia and Herzegovina, CH97/50 (Apr. 3, 2000)����������������������������������尓�������132
R.G. & Matkovic v. Federation of Bosnia and Herzegovina, CH/98/1027 and
CH/99/1842 (Sept. 8, 2000) ����������������������������������尓������������������������������������尓�������������������������132
Srebrenica Cases, Case No. CH/01/836 (2003) ����������������������������������尓������������������������������������尓�������116
Todorovic et al., v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina,
CH/97/104 (11 Oct 2002)����������������������������������尓������������������������������������尓�����������������������������131
Unkovic v. Bosnia and Herzegovina, Case No. CH/99/2150 (2002)����������������������������������尓�������������116
Zahirovic v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina,
CH/97/67 (July 8, 1999)����������������������������������尓������������������������������������尓����������������������� 130, 132

Human Rights Committee

A. and H. Sanjuan Arevalo v. Columbia, Comm. No. 181/1984, GAOR, Hum. Rts. Comm.,
45th Session Supp. 40, 31 (vol. 1), UN Doc. A/45/40 (1990)����������������������������������尓���������������198
Antonio Viana Acosta v. Uruguay, Comm. No. 110/1981, GAOR, Hum. Rts. Comm.,
39th Session Supp. 40, 169, UN Doc. A/39/40 (1984)����������������������������������尓����������������� 198, 243
A. Perkins v. Jamaica, Views of 19 Mar. 1998, II Reports 205����������������������������������尓�����������������������200
A.S. Yasseen and N. Thomas v. Guyana, Comm. No. 676/1996, Views of 30 Mar. 1998,
II Reports 151 ����������������������������������尓������������������������������������尓������������������������������������尓�����������200
Atachahua v. Peru, Comm. No. 540/1993 U.N. Doc. CCPR/C/56/D/540/1993 (1996)���������������107
Babkin v. Russian Federation, Comm. No. 1310/2004, UN Doc. CCPR/C/92/D/1310/2004�������200
Baboeram v. Suriname, Comm. Nos. 146/1983 and 148–54/1983,
40 GAOR Supp. (No. 40)����������������������������������尓������������������������������������尓��������������� 107, 198, 243
Bautista de Arellana v. Colombia, Comm. No. 563/1993 UN Doc.
CCPR/C/55/D/563/1993 (1995) ����������������������������������尓������������������������������������尓�����������������107
Bleier v. Uruguay, Comm. No. 30/1978, 37th Sess., GAOR Supp. No. 40 at 130,
UN Doc. A/37/40, Annex X (1982)����������������������������������尓������������������������������������尓������� 198, 243
Brok v. Czech Republic, Comm. No. 774/1997, Views of 31 Oct. 2001,
UN Doc. A/57/40, vol. II, 110����������������������������������尓������������������������������������尓��������������� 198, 306
B. Whyte v. Jamaica, Comm. No. 732/1997, Views of 27 July 1998, II Reports 195�����������������������200
B. Young v. Jamaica, Comm. No. 615/1995, Views of 4 Nov. 1997, II Reports�������������������������������200
Cagas et al. v The Philippines, Comm. No. 788/1997, UN Doc. A/57/40, vol. I��������������������� 198, 306
Carmen Amendola and Graciela Baritussio v. Uruguay, Comm. No. 25/1978, GAOR,
Hum. Rts. Comm., 37th Session Supp. 40, 187, UN Doc. A/37/40 (1982) ���������������������������198
Chira Vargas v. Peru, Comm. No. 906/2000, UN Doc. CCPR/C/75/D/906/2000 ��������������� 198, 306
Chonwe v. Zambia, Comm. 821/1998, UN Doc. CCPR/C/70/D/821/1998���������������������������������107
C. Smart v. Trinidad and Tobago, Comm. No. 672/1995, Views of 29 July 1998,
II Reports, 142����������������������������������尓������������������������������������尓������������������������������������尓��� 199, 200
Deidrick v. Jamaica, Comm. No. 619/1995, U.N. Doc. CCPR/C/62/D/619/1995�����������������������200
Des Fours Walderode v. the Czech Republic, Comm. 747/1997,
UN Doc. A/57/40, vol. II, 88����������������������������������尓������������������������������������尓����������������� 198, 306
Dissanayake v. Sri Lanka, Comm. No. 1373/2005, CCPR/C/93/D/1373/2005 ���������������������������306
D. McTaggart v. Jamaica, Comm. 749/1997, Views of 31 Mar. 1998, II Reports, 221 �������������������200
D. Taylor v. Jamaica, Comm. No. 705/1996, Views of 2 Apr. 1998, II Reports 174 �����������������������200
Elena Beatriz Vasilskis v. Uruguay, Comm. No. No. 80/1980, GAOR,
Hum. Rts. Comm., 38th Session Supp. 40, 173, UN Doc. A/38/40 (1983) ���������������������������198
El Ghar v. Libya, Comm. No. 1107/2002, II Report of the Human Rights Committee,
UN Doc. A/60/40, 166 ����������������������������������尓������������������������������������尓���������������������������������306
Fei v. Colombia, Comm. No. 514/1992, UN Doc. CCPR/C/53/D/514/1992 (1995)�������������������306
Gedumbe v. Congo, Comm. 641/1995, UN Doc. A/57/40, vol. II,
Views of 9 Apr. 1998, II Reports����������������������������������尓������������������������������������尓������������� 198, 306
xxiv Table of Authorities
Gonzalez del Rio v. Peru, Comm. No. 263/1987, U.N. Doc.
CCPR/C/46/D/263/1987 (1992) ����������������������������������������������������������������������������������� 80, 95
Gratzinger v. Czech Republic, Comm. No. 1463/2006����������������������������������������������������������� 200, 310
Guillermo Ignacio Dermit Barbato and Hugo Harold Dermit Barbato v. Uruguay,
Comm. No. 84/1981, GAOR, 38th Session Supp. 40, 124, UN Doc. A/38/40 (1983)�����������198
Gustavo Raul Larrosa Bequio v. Uruguay, Comm. No. 88/1981, Hum. Rts. Comm.,
38th Session Supp. 40, 173, UN Doc. A/38/40 (1983)�����������������������������������������������������������198
Haraldsson and Sveinsson v. Iceland, Comm. No. 1306/2004,
UN Doc. CCPR/C/91/D/1306/200 �����������������������������������������������������������������������������������200
Hendrick Winata et al. v. Australia, Comm. No. 930/2000, UN Doc. A/56/40�������������������������������199
I. Chung v. Jamaica, Comm. No. 591/1994, Views of 9 Apr. 1998, II Reports�������������������������������200
Irene Bleier Lewenhoff and Rosa Valino de Bleier v. Uruguay,
Comm. No. 30/1978, GAOR 37th Session Supp. 40, 130, UN Doc. A/37/40 (1982) �����������198
Jean Miango Muigo v. Zaire, Comm. No. 194/1985, GAOR, Hum. Rts. Comm.,
43rd Session Supp. 40, 218, UN Doc. A/43/40 (1988)�����������������������������������������������������������198
J. Leslie v. Jamaica, Comm. No. 564/1993, Views of 31 July 1998, II Reports �������������������������������200
Joaquin David Herrera Rubio v. Columbia, Comm No. 161/1983, GAOR,
Hum. Rts. Comm., 43rd Session Supp. 40, 190, UN Doc. A/43/40 (1988) ������������������� 198, 199
John Khemraadi Baboeram et al. v. Suriname, Comm. No. 146/1983 and 148–154/1983,
U.N. GAOR, 40th Session Supp. 40, 187, UN Doc. A/40/40 (1985)��������������������� 107, 198, 243
John Lindon v. Australia, Comm. No. 646/1995, CCPR/C/64/D/646/1995
(25 November 1998) ������������������������������������������������������������������������������������������������������� 79, 95
Karakurt v. Austria, Comm. No. 965/2000, UN Doc. CCPR/C/74/D/965/2000�������������������������198
Kohoute v. Czech Republic, Comm No. 1448/2006, UN Doc. CCPR/C/93/D/1448/2006������������200
Lnenikcka Czech Republic, Comm. No. 1484/2006, UN Doc. CCPR/C/92/D/1484/2006�����������200
L. Sudalenko v. Belarus, Comm. No. 1354/2005, U.N. Doc. CCPR/C/100/D/1354/2005�����������306
Moriana Hernandez Valentini de Bazzano et al. v. Uruguay, Comm No 5/1977,
I Selected Decisions of the Human Rights Committee under the Optional Protocol 40���������197
Müller and Engelhard v. Namibia, Comm. No. 919/2000 Views of 26 Mar. 2002,
UN Doc. A/57/40, vol. II, 243���������������������������������������������������������������������������������������������197
Ondracka and Ondracka v. Czech Republic, Comm. No. 1533/2006, U.N. Doc. A/63/40,
Vol. II, at 331 (HRC 2007)���������������������������������������������������������������������������������������������������200
P. Matthews v. Trinidad and Tobago, Comm. No. 569/1993, Views of 31 Mar. 1998,
II Reports 30 �����������������������������������������������������������������������������������������������������������������������200
Polay Campos v. Peru, Comm. No. 577/1994, UN Doc. A/53/40, vol. II, 36������������������������� 198, 306
Preiss v. Czech Republic, Comm. No. 1497/2006, UN Doc. CCPR/C/93/D/1497/2006���������������200
Prochazka v. The Czech Republic, Comm. No. 516/1992, UN Doc.
CCPR/C/54/D/516/1992 (1995) ���������������������������������������������������������������������������������������261
Quinteros Almeida v. Uruguary, Comm. No. 107/1981, 38 GOAR Supp. (No. 40) ��������������� 107, 198
R. Espinoza de Polay v. Peru, Comm. No. 577/1994, Views of 6 Nov. 1997, II Reports 36 �������������200
R. LaVenda v. Trinidad and Tobago, Comm. No. 554/1993, Views of 29 Oct. 1997,
II 30 Reports, 8 �������������������������������������������������������������������������������������������������������������������199
R. Morrison v. Jamaica, Comm. No. 635/1995, Views of 27 July 1998, II Reports 113�������������������199
Rodriguez v. Uruguay, Comm. 322/1998, U.N. Doc. CCPR/C/51/D/322/1988 (1994)���������������107
Suarez de Guerrero v. Colombia, Comm. No. 45/1979, GAOR, Hum. Rts. Comm.,
37th Session Supp. 40, 137, UN Doc. A/37/40 (1982)��������������������������������������������������� 198, 243
Sergio Ruben Lopez Burgos v. Uruguay, Comm. No. R.12/52, UN Doc.
Supp. No. 40 (A/36/40), 176 (1981)���������������������������������������������������������������������������� 199, 306
Susser v. Czech Republic, Comm. No. 1488/2006���������������������������������������������������������������������������200
Thomas v. Jamaica, Comm. No. 532/1993, Views of 3 Nov. 1997, GAOR,
53rd Session Supp. 40, UN Doc. A/53/40�����������������������������������������������������������������������������199
Titiahonjo v. Cameroon, Comm. No. 1186/2003, GAOR, Hum. Rts. Comm.,
63rd Session Supp. 40, UN Doc. A/63/40 (2008)�������������������������������������������������������������������198
Tshiongo v. Zaire, Comm. 366/1989, UN Doc. CCPR/C/49/D/366/1989�����������������������������������107
Uteev v. Uzbekistan, Comm. No. 1150/2003, GAOR, Hum. Rts. Comm.,
63rd Session Supp. 40, UN Doc. A/63/40 (2008)�������������������������������������������������������������������198
Quinteros v. Uruguay, Comm. No. 107/1981, UN Doc. CCPR/C/OP/2 (1983)����������� 114, 198, 243
 Table of Authorities xxv
Raul Sendic Antonaccio v. Uruguay, Comm. No. 63/1979, Views of 28 Oct. 1981,
UN Doc. A/37/40, Annex VIII����������������������������������尓������������������������������������尓�����������������������199
Sahadath v. Trinidad and Tobago, Comm. 684/1996, Views of 2 Apr. 2002,
UN Doc. A/57/40, vol. II����������������������������������尓������������������������������������尓�������������������������������199
Sarifova et al v. Tajikistan, Comm. No. 1209/2003, 1231/2003 and 1241/2004, A/63/40�������������200
Sergio Ruben Lopez Burgos v. Uruguay, Comm. No. 52/1979, I Selected Decisions 88������������� 199, 306
S. Shaw v. Jamaica, Comm. No. 704/1996, Views of 2 Apr. 1998, II Reports 164 �������������������������200
Vladimir Petrovich Laptsevich v. Belarus, Comm No. 790/1997 UN Doc. A/55/40, vol. II, 178��������� 197
Vleck v. Czech Republic, Comm. No. 1485/2006, UN Doc. CCPR/C/93/D/1485/2006���������������200
V.P. Domukovsky, Z. Tsiklauri, P. Gelbakhiani and I. Dokvadze v. Georgia, Comm.
623-624-626-627/1995, Views of 6 Apr. 1998, II Reports 95����������������������������������尓�������������200
Walter Lafuente Penarrieta et al. v. Bolivia, Comm No. 176/1984, GAOR.,
43rd Session Supp. 40, 199, UN Doc. A/43/40 (1988)����������������������������������尓�������������������������198
Williams v. Jamaica, Comm. No. 609/1995, Views of 4 Nov. 1997, II Reports, 63�������������������������200

Inter-American Commission on€Human€Rights

Almeida Calispa v. Ecuador (2001) Inter-Am.Comm’n.H.R. 8, OEA/ser.L/V/II.114,
doc. 5 rev����������������������������������尓������������������������������������尓������������������������������������尓����������� 225, 226
Aluisio Cavalcanti, et al. v. Brazil (2001) Case 11.286, Inter-Am.Comm’n.H.R. 168,
OEA/ser.L/ V/II.111, doc. 20 rev����������������������������������尓������������������������������������尓�������������������227
Andrade Benitez v. Ecuador (2001) Case 12.007, Inter-Am.Comm’n.H.R. 9,
OEA/ser.L/V/II.114, doc. 5 rev.����������������������������������尓������������������������������������尓���������������������225
Ayora Rodriguez v. Ecuador, Case 11.443, Inter-Am.Comm’n.H.R. 7, OEA/ser.L/V/II.114,
doc. 5 rev����������������������������������尓������������������������������������尓������������������������������������尓�������������������225
Carabantes Galleguillos Case, Report No 33/02 ����������������������������������尓������������������������������������尓�������225
Catalan Lincoleo v. Chile (2001) Case 11.771, Inter-Am.Comm’n.H.R. 96,
OEA/ser.L/V/II.111, doc. 20 rev ����������������������������������尓������������������������������������尓�������������������227
Ceferino ul Musicue and Leonel Coicue v. Colombia, Inter-Am.Comm’n.H.R.,
Annual Report 1998, OAS/ser.L/V/II.91 doc. 7����������������������������������尓���������������������������������226
Contreras San Martin et al v. Chile, Report No 32/02, Case 11.715, Report No. 32/02,
Annual Report 2002, OEA/Ser.L/V/II.117, Doc. 1 rev.����������������������������������尓���������������������1225
Ellacuria, S.J., et al. v. El Salvador (1999) Case 10.488, Inter-Am.Comm’n.H.R. 241,
OEA/ser.L/V/II.106, doc. 6 rev.����������������������������������尓������������������������������������尓������������� 113, 227
Extrajudicial Executions and Forced Disappearances v. Peru, Case 10.247, Report 101/01,
Annual Report 2001, OEA/Ser./L/V/II.114, doc. 5 rev., 16 April 2002���������������������������������227
Garay Hermosilla et al., Rep. 36/96, Case 10.843 (Chile), Annual Report of the Inter-Am.
Comm’n.H.R. 1996, OEA/Ser.L/V/II.95, Doc. 7 rev.m 14 March 1997�������������������������������110
Gustavo Carranza v. Argentina, Annual Report 1997, OEA/Ser.L/V/II.98, Doc. 7 rev. (1998)���������97
Manzano v. Ecuador (2001) Inter-Am.Comm’n.H.R. 8, OEA/ser.L/V/II.114,
doc. 5 rev����������������������������������尓������������������������������������尓������������������������������������尓����������� 225, 226
Merciadri de Morini v. Argentina (Friendly Settlement) (2001) Inter-Am.Comm’n.
H.R. Annual Report, Report No. 103/01, OEA/ser.L/V/II.114, doc. 5 rev���������������������������225
Munoz Arcos et al. v. Ecuador (2001) Inter-Am.Comm’n.H.R. 7,
OEA/ser.L/V/II.114, doc. 5 rev.����������������������������������尓������������������������������������尓���������������������225
Preliminary Observations Of The Inter-American Commission On Human Rights On Its Visit To
Honduras, May 15 To 18, OEA/Ser.L/V/II, Doc. 68, 3 June 2010 ����������������������������������尓�������391
Reascos v. Ecuador (2001) Case 11.779, Inter-Am.Comm’n.H.R. 10,
OEA/ser.L/V/II.111, doc. 20 rev ����������������������������������尓������������������������������������尓����������� 225, 226
Segura Hurtado v. Ecuador (2001) Inter-Am.Comm’n. H.R. 9,
OEA/ser.L/V/II.114, doc. 5 rev.����������������������������������尓������������������������������������尓������������� 225, 226
Vega Jimenez v. Ecuador, Case 11.542, Inter-Am.Comm’n.H.R. 7,
OEA/ser.L/V/II.114, doc. 5 rev.����������������������������������尓������������������������������������尓������������� 225, 226

Inter-American Court of€Human€Rights

Acosta-Calderon v. Ecuador (2005) Series C No 129����������������������������������尓����������������������������� 295, 312
Afrodescendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. 
Colombia (2013) Series C No 270����������������������������������尓������������������������������������尓��� 174, 232, 323
xxvi Table of Authorities
Aloeboetoe v. Suriname (Reparations) (1993) Series C No.15 ���������������������������41, 119, 246, 251, 255,
336, 337, 349, 351, 352, 362, 363, 369, 376, 391, 429, 430
Anstraum Villgrán Morales et al. v. Guatemala (Reparations) (2001) Series C No 77��������������������������393
Anzualdo Castro v. Peru (Preliminary Objection, Merits, Reparations and Costs) (2009)
Series C No 202�������������������������������������������������������������������������������������������������������������������115
Apitz Barbera et al. (‘First Court of Administrative Disputes’) v. Venezuela (2008)
Series C No 182�������������������������������������������������������������������������������������������������������������������312
Baena Ricardo et al. et al v. Panama (2001) Series C No 72���������������� 99, 105, 228, 229, 313, 329, 439
Baldeón-García v. Peru (2006) Series C No 147��������������������������������������������������������������������� 115, 329
Bámaca Velásquez Case (2001) Series C No 70���������109, 115, 116, 258, 278, 280, 392, 396, 397, 398
Bámaca Velásquez v. Guatemala (Reparations) (2002) Series C No 91
(Judgement of 22 Feb. 2002) ����������������������������������������������������������������������� 278, 280, 392, 396
Barrios Altos Case (Reparations) (2001) Series C No 87����������������������������������109, 111, 395, 396, 398
Berenson-Mejía v. Peru (2004) Series C No 119��������������������������������������������������������������������� 312, 329
Blake v. Guatemala (Merits) (2000) Series C No 36; (Reparations) (2000)
Series C No 48����������������������������������������������������������������������������������������������� 95, 115, 245, 329
Blake v. Guatemala, (1996) Series C No 27�����������������������������������������������������������������������������������245
Blanco-Romero v. Venezuela (2005) Series C No. 138���������������������������������������������������������������������115
Bulacio v. Argentina (2003) Series C No 100����������������������������������������������������������������� 103, 329, 415
Cabellero Delgado and Santana Case (Merits) (1996) Series C No 22 ������������������������������������� 392, 396
Cantoral Benavides Case (Reparations) (2002) Series C No 88�����������������������109, 231, 248, 312, 329,
350, 395, 396
Carpio Nicolle (2004) Series C No 117 �����������������������������������������������������������������������������������������230
Case of Cantos (2002) Series C No 97 ��������������������������������������������������������������������������������������� 98, 99
Case of the Constitutional Tribunal (Camba Campos et al.) (2013) Series C No 268�������������������������431
Case of the Ituango Massacres (Preliminary Objection, Merits, Reparations and Costs)
(2006) Series C No 148 ��������������������������������������������������������������������������������������� 124, 329, 397
Case of the “Street Children” (Villagran-Morales et al.) v. Guatemala,
Series C No 77.(2001) ����������������������������������������������������������������������������������������� 166, 280, 296
Castillo Paez v. Peru (Reparations) (1998) Series C No 43��������������������������95, 109, 123, 249, 396, 430
Castillo Paez v. Peru (Merits) (1997) Series C No 34 ������������������������������������������������������� 94, 115, 248
Castillo Pertruzzi v. Peru (1999) Series C No 41�����������������������������������������������������������������������������312
Castro Castro Prison v Peru (2008) Series C No 181������������������������������������������������������� 246, 248, 329
Cesar v. Trinidad & Tobago (2005) Series C No 123�����������������������������������������������������������������������230
Chaparro Alvarez and Lapo Iniguez v. Ecuador, Series C No 170������������������������������������� 166, 329, 431
Chitay Nech et al. v. Guatemala (25 May 2010) Series C No 212 ���������������������������������������������������115
Chocrón Chocrón v. Venezuela, (2011) Series C No 227 ��������������������������������������������������������� 102, 312
Claude Reyes et al. v. Chile, (2006) Series C No 151��������������������������������������������������������������� 105, 295
Constitutional Court v. Peru (2001) Series C No 71������������������������������������������������������� 100, 329, 430
De la Cruz-Flores v. Peru (2004) Series C No. 115����������������������������������������������������������������� 329, 395
Del Caracazo v. Venezuela (Reparations) (2002) Series C No 95����������������������������� 123, 281, 395, 396
Durand and Ugarte Case (2001) Series C No 89��������������������������������������������������������������������� 109, 396
El Amparo v. Venezuela (Reparations) (1996) Series C No 22�������������������������296, 337, 351, 352, 370,
392, 429, 430, 439
Enforceability of the Right to Reply or Correction (Articles 14(1), 1(1) and 2,American
Convention on Human Rights) (Advisory Opinion) No. OC–7/86 (1986) Series C No 7���������296
Escué-Zapata v. Colombia (2007) Series C No. 165 ��������������������������������������������������������������� 279, 396
Fermín-Ramírez v. Guatemala (2005) Series C No 126���������������������������������������������������������� 312, 329
Fernández-Ortega et al. v. Mexico (2010) Series C No. 215
( Judgment of 30 August 2010)��������������������������������������������������������������������� 279, 328, 396, 399
Furlan and family members v. Argentina (Preliminary objections, merits, reparations and costs)
(2012) Series C No 246 �������������������������������������������������������������������������������������������������������394
Gangaram Panday v. Suriname (1994) Series C No 16��������������������������������������������������� 229, 363, 370
García-Asto v. Perú (2005) Series C No. 137 ������������������������������������������������������������������������� 329, 395
Garrido v. Argentina (1998) Series C No 39�����������������������������������������������������������������������������������313
Genie Lacayo Case (1998) Series C No 30 ��������������������������������������������������������������������� 102, 109, 229
Goiburú et al. v. Paraguay (Condor) (22 September 2006) Series C No. 153 ��������������������������� 115, 230
 Table of Authorities xxvii
Godínez-Cruz v. Honduras (Compensatory Damages) (1989) Series C No 8������������������ 326, 349, 352,
369, 370, 391, 414, 429, 438, 439
Gómez-Palomino v. Perú (2005) Series C No. 136 ����������������������������������������������������������������� 329, 395
Gudiel Álvarez (Military Journal) v. Guatemala (2012) Series C No 253�����������������������������������������328
Gutierrez Soler v. Colombia (2005) Series C No 132��������������������������������������������������������������� 278, 329
Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) ACHR)
(Advisory Opinion) (1987) Series C No 8�������������������������������������������������������������������������������95
Hilaire v. Trinidad & Tobago (2002) Series C No 94��������������������������������������������������������������� 312, 398
Ituango Massacres v. Colombia (2006) Series C No. 148������������������������������������������������� 124, 329, 397
Ivcher Bronstein v. Peru (2001) Series C No 74��������������������������������������������������������������� 100, 105, 314
Juan Humberto Sanchez v. Honduras (2003) Series C No 99��������������������������������������������������� 103, 415
Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) ACHR)
(Advisory Opinion) (1987) Series C No 9������������������������������������������������������������������������� 82, 95
‘Juvenile Re-education Institute’ v. Paraguay (2004) Series C No 112�����������������������������������������������250
Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and reparations
(2012) Series C No 245 ����������������������������������������������������������������������������������������������� 296, 328
La Cantuta v. Perú (2006) Series C No 162 (Judgment of 9 November 2006) ��������������� 115, 230, 246
Las Dos Erres Massacre v. Guatemala (Preliminary Objections, Merits,
Reparations and Costs) (2009) Series C No 211 (Judgment of 24 Nov 2009) ������� 103, 115, 116
Las Palmeras v. Colombia (2001) Series C No 67 ���������������������������������������������������������������������������246
Last Temptation of Christ (Olmedo Bustas et al) v. Chile (2001) Series C No 73 ����������������������� 146, 397
Loayza Tamayo v. Peru (Reparations) (2000), Series C No. 42, 116 ILR
(Judgment of 27 Nov 1998)������������������������������������� 20, 95, 142, 230, 245, 278, 305, 312, 329,
350, 363, 370, 394, 395, 396, 398, 430
López-Álvarez v. Honduras (2006) Series C No. 141 (Judgement of 1 Feb. 2006).���������������������������399
Mack Chang v. Guatemala (2003) Series C No 101 �������� 103, 115, 123, 230, 231, 397, 415, 416, 430
Manuel Cepeda Vargas v. Colombia (2010) Series C No 213 (Judgment of 26 May 2010)���������������115
Mapiripán Massacre v. Columbia (2005) Series C No. 134������������������������������������� 115, 246, 252, 329
Massacre of Santo Domingo v. Colombia (2012) Series C No 259�����������������������������������������������������280
Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua,(2001) Series C No 79����������������������� 251, 252, 398
Mémoli v. Argentina (Preliminary objections, merits, reparations and costs) (2013)
Series C No 265����������������������������������������������������������������������������������������������������������� 280, 430
Mendoza et. al v. Argentina (2013) Series C No 260����������������������������������������������� 228, 229, 295, 399
Mohamed v. Argentina (2012) Series C No 255�����������������������������������������������������������������������������295
Moiwana Village v. Suriname (2005) Series C No 124����������������������������������������������������������� 230, 253
Molina-Theissen v. Guatemala, (2004) Series C No 108������������������������������������������������� 231, 329, 397
Montero-Aranguren et al v. Venezuela (Detention Center of Catia) (2006) Series C No 150������� 115, 398
Myrna Mack-Chang Case (2003) Series C No 10������������ 103, 115, 123, 230, 231, 397, 415, 416, 430
Nadege Dorzema et al. v. Dominican Republic (Merits, Reparations and Costs)
Series C No 251�������������������������������������������������������������������������������������������������������������������280
Neira Alegría et al. v. Peru. (Reparations and costs) (1996) Series C No 29������������ 248, 295, 337, 352,
363, 370, 392, 396, 397, 430
Omedo Bustos et al. v. Chile (Last Temptation of Christ Case) (2001) Series C No 73
(Judgment of 5 Feb. 2001) 73��������������������������������������������������������������������������������������� 146, 397
Other Treaties Subject to the Advisory Jurisdiction of the Court (Article 64 ACHR)
(1982) Series C No 1 �������������������������������������������������������������������������������������������������������������59
Nineteen Tradesmen v. Colombia (2004) Series C No 109��������������������������������������� 100, 102, 329, 397
Palamara-Iribarne v. Chile (2005) Series C No. 135��������������������������������������������������������������� 314, 398
Paniagua Morales and others v. Guatemala (1998) Series C No 37�����������������������������������������������������95
Plan de Sánchez Massacre v. Guatemala (Reparations and Costs) (2004)
Series C No 116������������������������������������������������������������ 252, 253, 327, 328, 329, 330, 396, 430
Plan de Sánchez Massacre v. Guatemala (2004) Series C No. 105 ���������������������������������������������������231
Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica
(Advisory Opinion) No. OC-4/84, (1984) Series C No 4 �����������������������������������������������������296
Pueblo Bello Massacre v. Columbia (31 January 2006) Series C No. 140 ������������������������� 115, 246, 329
Radilla Pacheco v. Mexico (2009) Series C No 209�������������������������������������������������������������������������100
Raxcacó-Reyes v. Guatemala (2005) Series C No. 133���������������������������������������������������������������������329
xxviii Table of Authorities
Restrictions to the Death Penalty (Articles 4(2) and 4(4) American Convention on Human Rights),
Advisory Opinion OC–3/83 (1983) Series C No 3 ����������������������������������尓�������������������������������297
Reverón Trujillo v. Venezuela (2009) Series C No 197����������������������������������尓��������������������������� 102, 312
Ricardo Baena Case (2001) Series C No 72����������������������������������尓������������������������������������尓���������������312
Ricardo Canese v. Paraguay (2004) Series C No 111����������������������������������尓������������������������������������尓�328
Rio Negro Massacres v. Guatemala (Preliminary objection, merits, reparations and costs)
(2012) Series C No 250 ����������������������������������尓������������������������������������尓����������������� 253, 254, 262
Rochela Massacre v. Colombia (2007) Series C No 163����������������������������������尓������������������������� 246, 330
Rosendo-Cantú v. Mexico (2010) Series C No. 216 (Judgement of
31 August 2010)����������������������������������尓������������������������������������尓��������������������� 279, 328, 396, 399
Salvador-Chiriboga v. Ecuador (2008) Series C No 179 ����������������������������������尓�������������������������������345
Saramaka People v. Suriname (2008) Series C No 185 ����������������������������������尓��������� 251, 312, 328, 345
Sawohaymaxa Indigenous Community v. Paraguay (2006) Series C No 146����������������������������������尓���246
Serrano-Cruz Sisters v. El Salvador (2005) Series C No. 120����������������������������������尓����������������� 232, 329
Suárez Rosero Case (Reparations) (Article 63(1) ACHR), 1999, Series C No. 44
(Judgment of 20 January 1999)����������������������������������尓������������������������������������尓�����������������������312
Suarez Peralta v. Ecuador, (2013) Series C No 261����������������������������������尓����������97, 103, 104, 228, 280
Suárez Rosero v. Ecuador (Merits) (1998) Series C No 35 ����������������������������������尓����������������������� 95, 229
Suarez Rosero v. Ecuador (Reparations) (1999) Series C No 44
(Judgment of 20 Jan. 1999) ����������������������������������尓������������������������166, 230, 231, 245, 312, 393
Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (2013) Series C No 266��������������� 229, 312
The Effect of Reservations on the Entry into Force of the ACHR (Articles 74 and 75) 
(1982) Series C No 2 ����������������������������������尓������������������������������������尓������������������������������������尓���59
The Girls Yean and Bosico (2005) Series C No 130 ����������������������������������尓��������������������������������� 99, 105
The Right to Information on Consular Assistance in the Framework of the Guarantees of
the Due Process of Law (Advisory Opinion) (1999) Series A No 16����������������������������������尓�������105
Tibi v. Ecuador (2004) Series C No 114����������������������������������尓������������������������������������尓�������������������115
Ticona Estrada v. Bolivia (Merits, Reparations and Costs) Series C No 191
(Judgment of November 27, 2008)����������������������������������尓������������������������������������尓��������� 229, 280
Trujillo Oroza Case (2002) Series C No 92����������������������������������尓������������������������������������尓������� 109, 396
Valle Jaramillo v. Colombia, (2008) Series C No 192 ����������������������������������尓�����������������������������������104
Velasquez Rodrigues v. Honduras (Compensatory Damages) (1990) Series C No 7���������������������������245
Velasquez Rodriguez v. Honduras (1988) Series C No. 28, ILM 291 1����������������������������������尓��� 229, 278
Velásquez-Rodríguez Case (Preliminary Exceptions) (1987) Series C No 1����������������������������������尓�������72
Velez Restrepo and family members v. Colombia, (2012) Series C No 248����������������������������������尓���������97
Villagrán Morales et al. Case (Reparations) (2001) Series C No 77 ����������109, 280, 296, 396, 397, 398
Xákmok Kásek Indigenous Community v. Paraguay (2010) Series C No. 214 ��������������������������� 251, 313
Ximenes-Lopez v. Brazil, (2006) Series C No 149����������������������������������尓������������������������������������尓�������96
Yakye Axa v. Paraguay (2006) Series C No 142����������������������������������尓������������������������������������尓���������246
Yatama v. Nicaragua (2005) Series C No 127����������������������������������尓������������������������������� 232, 254, 398
Zambrano Velez et al. v. Ecuador, (2007) Series C No 166����������������������������������尓�����������������������������103
19 Tradesmen v. Colombia (2004) Series C No 109����������������������������������尓��������������� 100, 102, 329, 397

International Arbitration€Awards
Aminoil: American Independent Oil Co. Arbitration (1982) 21 ILM 976����������������������������������尓�������334
British Petroleum v. Libya, (1973) 53 ILR 297����������������������������������尓������������������������������������尓��� 40, 146
Claims against Iraq (Category ‘B’ Claims) (14 Apr. 1994) UNCC S/AC.26/1994/1�������������������������39
Computer Sciences Corporation and Islamic Republic of Iran (1986-I) 10 CTR 269 �������������������������155
France v. Italy (1913) 11 RIAA, 460 ����������������������������������尓������������������������������������尓�����������������������159
The I’m Alone (Canada v. U.S.) (1935) 3 RIAA 1609����������������������������������尓������������������������������������尓�42
Island of Palmas Case (United States v. the Netherlands), 1928 2 RIAA 829����������������������������������尓�260
Janes Case (U.S. v. Mexico) (1926) 4 RIAA 82 ����������������������������������尓������������������������������������尓��� 35, 148
Liamco, Libyan American Oil Company (LIAMCO) v. Government of the
Libyan Arab Republic (1981) 62 ILR 140����������������������������������尓������������������������������������尓���������334
Lighthouses Arbitration (France v. Greece) (Perm.Ct. Arb.) (1956) 23 ILR 299���������������������������������145
Lusitania Cases (1923) 7 RIAA 35����������������������������������尓��������������������������41, 143, 144, 146, 157, 161
Martini Case (Italy v. Venezuela) (1930) 2 RIAA 977����������������������������������尓��������������������������� 145, 146
 Table of Authorities xxix
Naulilaa Arbitration (Portugal v. Germany) (1928) 2 RIAA 1013����������������������������������尓�������������������33
Norwegian Shipowners Claims (Nor. v. U.S.) (Perm.Ct. Arb.) (1922) 1 RIAA 307���������������������������145
Orinoco Steamship Company Case, United States–Venezuela (1909) 9 RIAA 421�����������������������������156
Rainbow Warrior Case, (France v. N.Z.) (1990) 82 ILR����������������������������������尓��������38, 42, 43, 161, 168
Religious Properties Case, France, U.K. and Spain–Portugal (1920) 1 RIAA 7����������������������������������尓�156
Stephens Case (1927) 4 RIAA, 266����������������������������������尓������������������������������������尓���������������������������159
Topco v. Libya (1977) 53 ILR 389����������������������������������尓������������������������������������尓��������������������� 40, 146
Trail Smelter Arbitration (United States v Canada) (1938,1941) 3 RIAA 1905����������������������������������尓39
United States v. Venezuela,(1903) 9 RIAA 225����������������������������������尓������������������������������������尓���������160
Well Blowout Claim, (15 Nov. 1996) S/AC.26/1996/5����������������������������������尓�����������������������������������39
William McNeil (1931) 5 RIAA 164����������������������������������尓������������������������������������尓�������������������������41
The Zafiro, (1925) 6 RIAA 160����������������������������������尓������������������������������������尓���������������������������������40

International Criminal€Court
Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor’s Application for a
Warrant of Arrest, Article 58, Case N0. ICC-01/04-01/06 (10 Feb. 2006)��������������������� 168, 171
Situation in the Democratic Republic of the Congo: In the Case of the Prosecutor v. Thomas
Lubanga Dyilo, ICC-01/04-01/06, August 7, 2012����������������������������������尓�����������������������������171
Prosecutor v. Thomas Lubanga, Dyilo, Decision on Victims’ Participation,
ICC-01/04-01/06/1119 (Trial Chamber I, 18 Jan. 2008)����������������������������������尓����������� 171, 242
Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and
The Defence against Trial Chamber I’s Decision on Victim Participation of
18 January 2008, ICC-01/04-01/06-1432, A.Ch., (11 July 2008)��������������������������������� 171, 242

International Court of€Justice

Advisory Opinion on the Western Sahara [1975] ICJ Rep. 12����������������������������������尓�������������������������302
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)
(Merits) [2010] ICJ Rep. 639����������������������������������尓������������������������������������尓����������������� 162, 164
Application for Review of Judgment No. 158 of the UNAT (Advisory Opinion)
[1973] ICJ Rep. ����������������������������������尓������������������������������������尓������������������������������������尓�����197–8
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 (I), 233-234 �������������������165
Armed Activities on the Territory of the Congo (Congo v. Uganda; Congo v. Rwanda;
Congo v. Burundi), Gen. List No. 116, 82 (ICJ Dec. 19, 2005����������������������������������尓�������������162
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)
[2002] ICJ Rep. 3����������������������������������尓������������������������������������尓����������������������������� 43, 146, 162
Avena and 41 Mexican Nationals (Mexico v. USA) [2004] 43 ILM 581����������������������������������尓�����������76
Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) [1970] ICJ Rep. 4 ����������� 44, 59
Case Concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia)
[1997] ICJ 7����������������������������������尓������������������������������������尓������������������38, 40, 41, 162, 163, 260
Corfu Channel Case, (U.K. v. Albania) (Merits) [1949] ICJ Rep. 1, 4�������������������33, 35, 41, 142, 157,
159, 162, 188, 279
Effects of Awards of Compensation made by the UN Administrative Tribunal
(Advisory Opinion of 13 July 1954) [1954] ICJ Rep. 47����������������������������������尓�����������������������46
Factory at Chorzów Case (Germany v. Poland) (Merits) [1928] PCIJ
Rep. Series A No 17 ����������������������������������尓�������������������������������� 33, 40, 142, 163, 327, 338, 377
Fisheries Jurisdiction (FRG v. Iceland) (Merits) [1974] ICJ Rep. 175����������������������������������尓�������������142
LaGrand (Germany v. United States) [2001] ICJ (Judgment of 27 June)������������������� 76, 142, 162, 163
LaGrand (Germany v. United States) (Provisional Measures) [1999] ICJ Rep. 9���������������������������������42
Legal Consequences of Construction of Wall in Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep. 136����������������������������������尓������������������������������������尓�������163
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa), notwithstanding Security Council Resolution 276
(1970) (Advisory Opinion) 1971 ICJ Rep. 16����������������������������������尓������������������������������������尓�260
Mavrommatis Palestine Concessions Case [1924] PCIJ 2 ����������������������������������尓������������������������� 35, 146
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States)
(Merits) [1986] ICJ Rep. 14����������������������������������尓������������������������������������尓������������������� 142, 159
xxx Table of Authorities
New Zealand v. France [1974] ICJ Rep. 253 ����������������������������������尓������������������������������������尓�����������155
Oscar Chinn Case (1934) PCIJ Series A/B No. 63 ����������������������������������尓������������������������������������尓�����42
South-West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa) (Second Phase)
[1966] ICJ Rep. 6����������������������������������尓������������������������������������尓������������������������������������尓���������44
The S.S. ‘Wimbledon’ [1923] PCIJ Series A No 1 ����������������������������������尓����������������������������������� 42, 162
Temple of Preah Vihear (Cambodia v. Thailand) [1962] ICJ Rep. 6����������������������������������尓��������� 40, 166
U.S. Diplomatic and Consular Staff in Teheran (United States v Iran) [1980] ICJ Rep. 3������������� 38, 162
Vienna Convention on Consular Relations (Paraguay v. United States) (Provisional Measures)
[1998] ICJ Rep. 248����������������������������������尓������������������������������������尓������������������������������������尓�����42

International Tribunal for€the Law of€the€Sea

The M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines v. Guinea) (1999)����������������������������������尓���42

Iran-United States Claims Tribunal

Amoco International Finance Corp. and Islamic Republic of Iran (Partial Award) (1987-II)
15 CTR 189 at 244–7, reprinted in (1987) 27 ILM 1314 and (1990) 83 ILR 502�����������������154
Grimm v. Iran, Case No. 71, 18 Feb. 1983, 2 Iran–US CTR 78 (1983-I)����������������������������������尓�����162
Haddadi v. United States, Case No. 763, 31 Jan. 1985, 8 Iran–US CTR 20 (1985-I) ���������������������162
International Finance Corporation v. Iran, Interlocutory Award of 14 July 1987, Iran–U.S.
Claims Tribunal Reports 1987-II ����������������������������������尓������������������������������������尓�������������������338
Islamic Republic of Iran v. United States of America (28 December 1998) Cases No. A15(IV)
and A24, Award No. 590-A15/A24-FT����������������������������������尓������������������������������������尓�������������39
Islamic Republic of Iran v. United States of America (Case A-19) (1987) 16 Iran–USCTR 285�����������42
Khosrowshahi and Islamic Republic of Iran, Award No. 558-178-2 (30 June 1994)
Petrolane, Inc. and Islamic Republic of Iran (1991-II) 27 CTR 64����������������������������������尓�����������������155
Starrett Housing (Final Award) (1987-III) 16 CTR 112����������������������������������尓�������������������������������155

United Nations Committees

Committee against Torture, Comm. 59/1996 Blanco Abad v. Spain, UN Doc.
CAT/C/20/D/59/1996 (1998)����������������������������������尓������������������������������������尓�����������������������108
Committee against Torture, Comm. 60/1996 MBarek v. Tunisia, UN Doc.
CAT/C/23/D/60/1996 (2000)����������������������������������尓������������������������������������尓�����������������������108
Committee against Torture, Comm. No. 113/1998, Ristic v. Yugoslavia, UN Doc.
CAT/C/26/D/113/ 1998 (2001), (May 11, 2001) ����������������������������������尓�����������������������������167
Committee against Torture, K.H. v. Denmark Decision adopted by the Committee, 49th
Session,, Oct. 29-Nov. 23, 2012, Comm. No. 464/2011,
UN Doc. CAT/C/49/D/464/2011 (Nov. 23, 2012)����������������������������������尓���������������������������193
Committee on the Elimination of Racial Discrimination, L.K. v. The Netherlands,
Comm. No. 4/1991, Decision of 16 Mar. 1993, UN Doc. CERD/C/42/D/4/1993 �������������202

United States€– Mexican General Claims Commission

United Mexican States (Salome Lerma de Galvan) v. U.S.A., Opinions of Commissioners, 1927 �����148
United Mexican States (Thodoro Garcia) v. U.S.A., Opinions of Commissioners, 1927 �������������������149
U.S.A. (Agnes Connelly) v. United Mexican States, Opinions of Commissioners, 1927���������������������149
U.S.A. (Charles S. Stephens) v. United Mexican States, Opinions of Commissioners, 1927���������������149
U.S.A. (Clyde Dyches) v. United Mexican States, Opinions of Commissioners, 1929�����������������������152
U.S.A. (Daniel Dillon) v. United Mexican States, Opinions of Commissioners, 1929 ���������������������152
U.S.A. (Elvira Almaguer) v. United Mexican States, Opinion of Commissioners, 1929 �������������������149
U.S.A. (Ethel Morton) v. United Mexican States, Opinions of Commissioners, 1929�����������������������148
U.S.A. (Fannie P. Dujay) v. United Mexican States, Opinions of Commissioners, 1929�������������������152
U.S.A. (F.R. West) v. United Mexican States, Opinions of Commissioners, 1927�����������������������������148
U.S.A. (George Adams Kennedy) v. United Mexican States, Opinions of Commissioners, 1927���������149
U.S.A. (George M. Waterhouse) v. United Mexican States, Opinions of Commissioners, 1929 ���������149
U.S.A. (Gertrude Parker Massey) v. United Mexican States, Opinions of Commissioners, 1927 �������148
U.S.A. (Harry Roberts) v. United Mexican States, Opinions of Commissioners, 1927�����������������������152
U.S.A. (Hazel M. Corcoran) v. United Mexican States, Opinions of Commissioners, 1929���������������149
U.S.A. (Helen O. Mead) v. United Mexican States, Opinions of Commissioners, 1931 �������������������148
 Table of Authorities xxxi
U.S.A. (Ida R.S. Putnam) v. United Mexican States, Opinions of Commissioners, 1927 �����������������149
U.S.A. (Illinois Central R.R. Co.) v. United Mexican States, Opinions of
Commissioners 1927����������������������������������尓������������������������������������尓������������������������������������尓�156
U.S.A. (J.J. Boyd) v. United Mexican States, Opinions of Commissioners, 1929 �����������������������������149
U.S.A. (John B. Okie) v. United Mexican States, Opinions of Commissioners, 1927 �����������������������156
U.S.A. (John D. Chase) v. United Mexican States, Opinions of Commissioners, 1929 ���������������������149
U.S.A. (J. Parker Kirlin) v. United Mexican States, Opinions of Commissioners, 1927 �������������������156
U.S.A. (J.W. and N.L. Swinney) v. United Mexican States, Opinion of Commissioners, 1927 ���������149
U.S.A. (Lillian Greenlaw Sewell) v. United Mexican States, Opinion of Commissioners, 1931���������149
U.S.A. (Lillie S. Kling) v. United Mexican States, Opinions of Commissioners, 1931�����������������������149
U.S.A. (Louis Chazen) v. United Mexican States, Opinions of Commissioners, 1931�����������������������152
U.S.A. (Louise O. Canahl) v. United Mexican States, Opinions of Commissioners, 1929�����������������149
U.S.A. (Mamie Brown) v. United Mexican States, Opinions of Commissioners, 1927���������������������149
U.S.A. (Margaret Roper) v. United Mexican States, Opinions of Commissioners, 1927 �������������������149
U.S.A. (Martha Ann Austin) v. United Mexican States, Opinions of Commissioners, 1931 �������������149
U.S.A. (Mary Ann Turner) v. United Mexican States, Opinions of Commissioners, 1927�����������������152
U.S.A. (Mary E.A. Munroe) v. United Mexican States, Opinions of Commissioners, 1929���������������149
U.S.A. (Minnie East) v. United Mexican States, Opinion of Commissioners, 1931 �������������������������149
U.S.A. (Norman T. Connolly) v. United Mexican States, Opinions of Commissioners, 1929�������������149
U.S.A. (Richard A. Newman) v. United Mexican States, Opinions of Commissioners, 1929�������������149
U.S.A. (Rosetta Small) v. United Mexican States, Opinions of Commissioners, 1927�����������������������149
U.S.A. (Russell Strother) v. United Mexican States, Opinions of Commissioners 1927���������������������152
U.S.A. (Sarah Ann Gorham) v. United Mexican States, Opinions of Commissioners, 1931 �������������149
U.S.A. (Thomas A. Youmans) v. United Mexican States, Opinions of Commissioners, 1927�������������149
U.S.A. (Walter H. Faulkner) v. United Mexican States, Opinions of Commissioners, 1927 ���������������41
U.S.A. (William A. Parker) v. United Mexican States, Opinions of Commissioners, 1927 ���������������156
U.S.A. (William E. Chapman) v. United Mexican States, Opinions of Commissioners, 1927�����������148

DOMESTIC€COURTS
Australia
Cubillo and Gunner v. Commonwealth [2001] FCA 1213����������������������������������尓�����������������������������270
Kruger & Ors v. The Commonewealth of Australia; Bray & Ors v. The Commonwealth of Australia,
High Ct. Aus., [1995] 146 ALR 126����������������������������������尓������������������������������������尓���������������270
Mabo v. Queensland (No. 2) (1992) 175 CLR 1����������������������������������尓������������������������������������尓�������302
Williams v. Minister Aboriginal Land Rights Act 1983 and Anor. [1999] NSWSC 843���������������������270

Bahamas
Tynes v. Barr, Supreme Court, 28 Mar. 1994, [1996] 1CHRD 116����������������������������������尓�������������320

Botswana
Attorney Gen. v. Dow, Court of Appeal No. 4/91 (Ct. App. 1992) (Bots.)����������������������������������尓�����287
In re Dow v. Attorney Gen. of Bots., Case No. Misc. A.124/90 (High Ct. 1991) (Bots.) �������������������287

Canada
Calder v. A-G of British Colombia [1973] SCR 313 ����������������������������������尓������������������������������������尓�302
Delgamuuk v. R. [1997] 3 SCR 1010����������������������������������尓������������������������������������尓�����������������������302
Vorvis v. I.C.B.D., 58 DLR 4th 193, 208 (1989) (Can.SC).����������������������������������尓�������������������������405

Colombia
Constitutional Court, Case C-228 (2002)����������������������������������尓������������������������������������尓��������������116
Constitutional Court, Case T-249/03 (2002) ����������������������������������尓������������������������������������尓���������116

Germany
Distomo Massacre Case, BGH-III ZR 245/98 (26 June 2003) (2003) 42
ILM 1030����������������������������������尓������������������������������������尓������������������������������������尓�� 179, 183, 275
xxxii Table of Authorities
India
Bhim Singh v. State of Jammu and Kashmir (1984) Supp. SCC 504 and 4 SCC 677 (1985)�������������404
M.C. Mehta case, AIR (SC) 1086 (1987)����������������������������������尓������������������������������������尓�������������������91
Nilabati Behera v. State of Orissa and others, 2 LRC 99 (1994) ����������������������������������尓���������������������404
People’s Union for Democratic Rights v. Police Commissioner Delhi Police 1983–4 S.C.C. 730 �����������320
People’s Union for Democratic Rights v. State of Bihar, 1987-1 S.C.C. 265 A.I.R. (S.C.) 355�������������320
Saheli v. Commissioner of Police, Delhi 1990–1 S.C.C. 422, A.I.R. (S.C.) 513 (1990)���������������������320
State of Madras v. G.G. Menon, AIR (SC) 517 (1954) ����������������������������������尓�����������������������������������89
State of Maharashtra v. Ravikant S. Patil, A.I.R. (S.C.) 871 (1991)����������������������������������尓���������������320
Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, 1 SCC 339 (1984); 3 SCC 81�����������404

Peru
Constitutional Tribunal of Peru, Case 2488-2002-HC/TC (2004) ����������������������������������尓�������������116

Uganda
Kanike v. Att. General of Uganda, Civil Case No. 196 (1967)����������������������������������尓�����������������������403
Kiwanuka v. Att. General of Uganda, Civil Case No. 159 (1964)����������������������������������尓�������������������403

United Kingdom
Anonymous, 87 Eng. Rep. 791 (Q.B. 1703����������������������������������尓������������������������������������尓���������������378
Ashby v. White, 92 Eng. Rep. 126 (K.B. 1703)����������������������������������尓����������������������� 89, 141, 356, 377
Broome v. Cassell & Co [1972] A.C. 1027 ����������������������������������尓������������������������������������尓���������������409
Mutua and Others v. The Foreign and Commonwealth Office, [2012] EWHC 2678 (QB)�����������������270
North v. Musgrave, 82 Eng. Rep. 410 (K.B. 1639)����������������������������������尓������������������������������������尓���378
Rookes v. Barnard [1964] AC 1129 ����������������������������������尓������������������������������������尓��������� 405, 409, 410
Rowning v. Goodchild, 96 Eng. Rep. 536 (K.B. 1773) ����������������������������������尓���������������������������������378
Spring v. Guardian Assurance plc [1994] 3 All ER 129 ����������������������������������尓�����������������������������������30
Turner v. Sterling, 86 Eng. Rep. 287 (K.B. 1683)����������������������������������尓������������������������������������尓�����378
Wright v. British Railways Board, [1983] 2 AC 773 (HL)����������������������������������尓�����������������������������347

United€States
Abebe-Jiri v. Negewo 72 F.3d 844 (11th Cir. 1996)����������������������������������尓������������������������������������尓���137
Altmann v. Republic of Austria, 317 F.3d 954 (9th Cir. 2002)����������������������������������尓�����������������������277
Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 1 L.Ed. 613 (1796)����������������������������������尓�������������������421
Autocephalous Greek Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc.,
717 F.Supp. 1373 (S.D. Ind. 1989), aff’d 917 F.2d 270 (7th Cir. 1990)������������������������� 301, 341
Baca v. Suarez-Mason, No. C-87-2057-SC, slip op. at 1 (N.D. Cal. 22 Apr. 1988)�������������������������139
Baker v. Carr, 369 U.S. 186 (1962)����������������������������������尓������������������������������������尓���������������������������97
Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967) ����������������������������������尓����������������������������������� 379, 380
Brown v. Board of Educ., 349 U.S. 294 (1955)����������������������������������尓������������������������������������尓����� 62, 63
Burger-Fischer v. Degussa A.G., 65 F. Supp. 2d 248 (D.N.J. 1999) ����������������������������������尓���������������183
Burlington N., Inc. v. Boxberger, 29 F.2d 284 (9th Cir. 1975)����������������������������������尓�������������������������90
Carey v. Piphus, 435 U.S. 247 (1978) ����������������������������������尓������������������������������������尓����� 320, 355, 406
Cato v. United States, 70 F.3d 1103 1105 (9th Cir. 1995)����������������������������������尓�����������������������������274
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)����������������������������������尓�����������������������������������302
Chesapeake and O Ry. V. Kelly, 241 U.S. 485 (1916)����������������������������������尓������������������������������������尓�371
Christian County Court v. Rankin & Tharp, 63 Ky. (2 Duv.) 502 (1866)����������������������������������尓�������179
Cobell v. Norton, 240 F.3d 1081 (C.A.D.C., 2001) (23 Feb. 2001)����������������������������������尓���������������269
Davis v. Board of School Comm’rs, 402 U.S. 33 (1971) ����������������������������������尓�����������������������������������62
Edwards v. United States, 552 F.Supp. 635 (M.D. Ala. 1982)����������������������������������尓�����������������������331
Filartiga, No. C-87-2057-SC, slip op. at 4 (N.D. Cal. 22 Apr. 1988)����������������������������������尓�����������137
Filartiga v. Pena-Irala, 577 F.Supp. 860 (1980)����������������������������������尓����������������������������������� 418, 419
First Nat’l Bank v. National Airlines, Inc., 171 F.Supp. 528 (S.D.N.Y. 1958),
aff’d 288 F.2d 261 (2d. Cir.), cert. denied, 368 U.S. 859 (1961)����������������������������������尓�����������332
Fishel v. BASF Group, U.S. Dist. LEXIS 21230 at 14 (S.D. Iowa 1998)����������������������������������尓�������179
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404,
18 L.Ed.2d 475 (1967)����������������������������������尓������������������������������������尓�����������������������������������421
 Table of Authorities xxxiii
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)���������������������������������������������������������������������������������89
Forti v. Suarez-Mason, No. 87-2058-DLJ (N.D. Cal. 25 Apr. 1990)�����������������������������������������������137
Giles v. Harris, 189 U.S. 475, 487–8 (1903) ���������������������������������������������������������������������������������400
Hereros et al. v. Deutsche Afrika-Linien GmbH & Co., (3rd Cir., 10 Apr 2007)
Hostrop v. Board of Junior College Dist. No. 515 F.2d 569 (7th Cir. 1975) cert. denied,
425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976)�����������������������������������������������������������141
Hudgins v. Serrano, 453 A.2d 218 (N.J. Super. Ct.App.Div. 1982). �����������������������������������������������332
Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)����������������������������������� 378, 379
Hwang Geum Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003)����������������������������������������������������� 264, 274
Inmates of Allegheny County Jail v. Wecht, 573 F. Supp. 454 (W.D. Penn. 1983) �������������������������������62
In Re Holocaust Era German Industry, Bank and Insurance Litigation, No. 1337,
2000 US LEXIS 11650 (4 Aug. 2000)�����������������������������������������������������������������������������������183
Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999)�������������������������������������������������������183
Johnson v. Baker, 11 Kan.App. 2d, 719 P.2d 752 (1986)�����������������������������������������������������������������355
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823) ���������������������������������������������������������������������303
Kadic v. Karadzíc, 70 F.3d 232 (C.A.2 1995)�����������������������������������������������������������������������������������56
Kansas City Southern R. Co. v. Guardian Trust Co., 281 U.S. 11, 50 S.Ct. 194,
74 L.Ed. 659 (1930)�������������������������������������������������������������������������������������������������������������421
Kewin v. Massachusetts Mutual Life Ins. Co., 295 N.W. 2d 50, 55 (Mich. 1980) �����������������������������403
Kiobel v. v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013)���������������������������������������������������������57
Korematsu v. United States, 323 U.S. 214 (1944)���������������������������������������������������������������������������274
Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994)�����������������������������������������������������������������261
Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wash.2d 712, 845 P.2d 987 (1993)�����������������������355
Lone Wolf v. Hitchcok, 187 U.S. 553 (1903)�����������������������������������������������������������������������������������302
Marbury v. Madison, 5 U.S. (1 Cranch) 137 ����������������������������������������������������������������������������� 18, 89
Martin v. Hunter’s Lessee, 13 U.S. (1 Wheat.) 304 (1816)�����������������������������������������������������������������62
Martin v. Johns-Manville Corp. 469 A.2d 655, 666–7 (Pa. 1983)���������������������������������������������������408
McKesson Corp. v. Iran, 116 F.Supp. 12, 41 (D.D.C. 2000)�������������������������������������������������������������42
Mehinovic et al. v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. GA, 2002)���������������������������������������������137
Michigan Central Railroad v. Vreeland, 277 U.S. 59 (1913) �����������������������������������������������������������332
Milliken v. Bradley, 433 U.S. 267 (1977)�����������������������������������������������������������������������������������������62
Moore-McCormack Lines v. Richardson, 295 F.2d 583, 593 n. 9A (2d Cir. 191),
cert. denied, 479 U.S. 989 and cert. denied, 70 U.S. 937 (192)���������������������������������������������332
Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996)������������������������� 137, 138
Newman v. Alabama, 559 F.2d 283, rev’d in part on other grounds, 438 U.S. 781 (1978)���������������380
Ogden v. Saunders, 25 U.S. (Wheat.) 213 (1827)�����������������������������������������������������������������������������89
Olmstead v. United States, 277 U.S. 438 (1928)�������������������������������������������������������������������������������60
Ortiz v. Gramajo, 886 F. Supp. 162 (D. Ct Mass 1995)�����������������������������������������������������������������137
Owen v. City of Independence, 445 U.S. 622 (1980)�����������������������������������������������������������������������378
Peisner v. Detroit Free Press, 376 N.W.2d 600 (Mich. 1985)�����������������������������������������������������������403
Presbyterian Church of Sudan v. Talisman Energy Inc., 244 F.Supp.2d 289 (S.D.N.Y.2003)���������������57
Provincial Gov’t Of Marinduque v.Placer Dome, Inc. v. Barrick Gold Corp., 582 F.3d 1083
(9th Cir. 2009)�����������������������������������������������������������������������������������������������������������������������56
Quiros de Rapaport v. Suarez-Mason, No. C87-2266 JPV (N.D. Cal. 11 Apr. 1989)�����������������������137
Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)���������������������������������������������380
Sherrod v. Berry, 629 F.Supp. 159, 162–3 (N.D. Ill. 1985), aff’d 827 F.2d 195 (7th Cir. 1987),
rev’d on other grounds, 856 F.2d 802 (7th Cir. 1988) (en banc)���������������������������������������������331
Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718(2004).���������������������������56
Steffel v. Thompson, 415 U.S. 451 (1974)������������������������������������������������������������������������������� 286, 287
Stephens v. Cherokee Nation, 174 U.S. 445 (1899)�������������������������������������������������������������������������302
Tachiona v. Mugabe et al., 216 F.Supp. 2d 262 (S.D.N.Y. 2002)��������������������������������������������� 138, 139
Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)�������������������������������������������������������������302
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (C.A.D.C.1984)�����������������������������������������������������56
The Herero People’s Reparations Corporation, et al. v. Deutsche Bank, A.G. and Woermann Line,
d/b/a Deutsche Afrika–Linien GmbH & Co., (D.C. Cir. 11 Jun 2004)�������������������������������������266
The Mariana Flora, 24 U.S. (11 Wheat.) 1, 6 L.Ed. 405 (1826)�����������������������������������������������������160
Todd v. Panjaitan, No. CV-92-12255-PBS (D. Mass. 26 Oct. 1994)���������������������������������������������137
xxxiv Table of Authorities
TXO Production Corp. v. Alliance Resources Corp., 113 S.Ct. 2711 (1993)������������������������������� 405, 410
Underhill v. Hernandez, 168 U.S. 250 (1897)����������������������������������尓������������������������������������尓�����������56
United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) ����������������������������������尓���������������������302
United States v. White Mountain Apace Tribe, 123 S.Ct. 1126 (4 Mar. 2003)����������������������������������尓�269
Vargas v. Calabrese, 634 F.Supp. 910, 913 (D.N.J. 1986)����������������������������������尓�����������������������������356
Wangen v. Ford Motor Co., 294 N.W.2d 437, 453–4 (Wis. 1980)����������������������������������尓�����������������408
Wayne v. Venable, 260 F.63 (8th Cir. 1919)����������������������������������尓������������������������������������尓�������������141
Wilkes v. Woods, 98 Eng.Rep. 489 (C.P. 1763)����������������������������������尓������������������������������������尓���������409
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)����������������������������������尓����������������������������������� 62, 302
W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400 (1990)���������������������������������56
Xuncax v. Gramajo, 886 F.Supp. 162 (D. Ct Mass.1995)����������������������������������尓��������������������� 137, 419
Zepeda v. United States Immigration & Naturalization Serv., 703 F.2d 719 (8th Cir. 1985) ���������������62

Netherlands
Mothers of Srebrenica v. Netherlands and United Nations (judgment of 13 April 2012) 
International Law in Domestic Courts (ILDC) 1760 (NL 2012)����������������������������������尓�����������50

New Zealand
Manga v. Attorney-General [2000] 2 NZLR 65 ����������������������������������尓������������������������������������尓�������347
Sahay & Anor v. Proceedings Commissioner (1999) 5 NZELC 98.567 (HC) ����������������������������������尓�347

South€Africa
Minister of Health et al. v. Treatment Action Campaign, (2002) 5 SA 721 (CC)�������������������������������380

Zimbabwe
Granger v. Minister of State (Security) [1985] 1 Z.L.R. 153 (HC)����������������������������������尓�����������������406
Makomboredze v. Minister of State (Security) [1986] 1 Z.L.R. 73 (HC)����������������������������������尓���������406
Minister of Home Affairs v. Allen [1986] 1 Z.L.R. 263 (SC) ����������������������������������尓�������������������������406
Rashid bin Abdulla v. Major Cartwright, 1 Z.L.R. 407����������������������������������尓���������������������������������406

CONVENTIONS, DECL ARATIONS, TREATIES AND

LEGISL ATIVE MATERIALS
African Charter on Human and Peoples’ Rights, (adopted 27 June 1981, entered into force
21 Oct. 1986) OAU Doc. CAB/LEG/67/3 Rev. 5, (1982) 21 ILM 58����������������������������� 66, 232
Agreement of the International Bank for Reconstruction and Development, opened for signature
(27 Dec. 1945) 60 Stat. 1440 TIAS No 1502, 2 UNTS 134, as amended, 16 Dec. 1965,
16 UST 1942, TIAS N. 5929����������������������������������尓������������������������������������尓���������������������������47
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis
Powers and Charter of the International Military Tribunal, London, 8 Aug. 1945, 59 Stat.
1544, 82 UNTS 279 ����������������������������������尓������������������������������������尓������������������������������������尓�274
Alaska Native Claims Settlement Act of 1971, 43 USC §§ 1601–29 (1988)����������������������������������尓���302
American Convention on Human Rights (22 November 1969), Art. 33, 1144 UNTS 123,
OASTS No 36����������������������������������尓������������������������������������尓������������������������������������尓��� 191, 431
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Violations of International Human Rights and Humanitarian Law, A/RES/60/147 (2006)������242
Convencion relativa a los derechos de extrajeria, Actas y documentos de la Segunda Conferencia
Pan-Americana (Mexico City, 29 Jan. 1902), reprinted in Consol. T.S. 445�����������������������������36
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
(10 Dec. 1984, in force 26 June 1987) G.A. Res. 39/46, 39 UN GAOR,
Supp. No. 51, UN Doc. A/39/51����������������������������������尓������������������������������������尓���������������������64
Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the
American Nations (Organization of American States Convention of San Salvador),
June 16, 1976, OAS TS No 47 (1976), (1976) 15 ILM 1350����������������������������������尓���������������299
Convention for the Protection of Cultural Property in the Event of Armed Conflict,
14 May 1954, 249 UNTS 240–88����������������������������������尓������������������������������������尓�����������������299
 Table of Authorities xxxv
Convention of the Non-Applicability of Statutory Limitations to War Crimes and Crimes
against Humanity, UNGA Res. 2391, GAOR, 23rd Sess., UN Doc. A/7218 (1968) �������������301
Convention on the Elimination of All Forms of Discrimination of Women
(adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13���������������45
Convention on the Elimination of All Forms of Racial Discrimination
(adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195������������� 45, 63
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property, Nov. 14, 1970 (UNESCO), 823 UNTS 231,
(1971) 10 ILM 289 �������������������������������������������������������������������������������������������������������������299
Convention on the Prevention and Punishment of the Crime of Genocide,
78 UNTS 277 ��������������������������������������������������������������������������������������������������� 44, 54, 63, 274
Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families (adopted 18 Dec 1990, entered into force 1 July 2003) UNGA Res. 45/158���������������64
Convention on the Rights of the Child (20 Nov. 1989, in force 2 Sept. 1990) 
UNGGA Res. 44/25, Annex, 44 UN. GAOR Supp. No. 49 ��������������������54, 64, 65, 66, 80, 394
Convention to Suppress the Slave Trade and Slavery (1926) 46 Stat. 2183, 60 LNTS 253 ��������� 264, 267
European Convention for the Peaceful Settlement of Disputes (adopted 28 April 1949,
entered into force 20 September 1950) 320 UNTS. 243���������������������������������������������������������43
European Convention on the Compensation of Victims of Violent Crimes (24 Nov 1983) 
ETS No 116����������������������������������������������������������������������������������������������������� 84, 85, 295, 330
European Convention on the Non-Applicability of Statutory Limitations to Crimes
against Humanity and War Crimes, E 7582, 13 ILM 540 �������������������������������������������������������301
European Convention on The Protection of Human Rights and Fundamental Freedoms
(adopted 1950, entered into force 1953) 213
UNTS 221�������������������������������������������������������������������������� 66, 67, 71, 191, 220, 222, 364, 414
Federal Declaratory Judgment Act, 28 U.S.C.A. § 2201 (West 1988) �������������������������������������������286
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
(1949) 75 UNTS 287�������������������������������������������������������������������������������������������������������������54
Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949) 75 UNTS 135���������������54
International Agreement for the Suppression of the White Slave Traffic (1904) 35 Stat. 1979,
1 LNTS 83���������������������������������������������������������������������������������������������������������������������������264
Hague Convention II with Respect to the Laws and Customs of War by Land, 29 July 1899�����������������265
Indian Claims Commission Act of 1946, Pub. L. No. 726, ch. 959, 60 Stat. 1049 (1999)�����������������302
International Convention for the Suppression of the Traffic in Women and Children
(1921) 9 LNTS 415�������������������������������������������������������������������������������������������������������������264
International Convention for the Suppression of the White Slave Traffic of 1910,
211 Consol. T.S. 45 �������������������������������������������������������������������������������������������������������������264
International Covenant on Civil and Political Rights, UNGA Res. 2200A (XXI)
21 GAOR Supp. 16, 52, UN Doc. A/6316 (1966),
999 UNTS 171 ������������������������������������� 45, 52, 57, 59, 63, 64, 66, 80, 107, 125, 164, 188, 194
International Convention for the Protection of All Persons from Enforced Disappearance (2006)
2716 UNTS 3������������������������������������������������������������������������������������������������� 65, 100, 113, 241
Optional Protocol to the American Convention on Human Rights to Abolish the Death Penalty
(adopted 8 June 1990, entered into force 28 Aug 1991) OASTS 73�����������������������������������������71
Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure
(19 December 2011) UN Doc. A/RES/66/138���������������������������������������������������������������������191
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography (adopted 25 May 2000) A/RES/54/263������������� 45, 65
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(10 December 2008) UN Doc. A/RES/63/117������������������������������������������������������������� 191, 433
Protocol on the Rights of Women in Africa (2000) OAU Doc. No. CAB/LEG/66.6�����������������������������72
Revised General Act for the Pacific Settlement of Disputes, (23 Apr. 1949) 72 UNTS 101���������������������43
Rome Statute of the International Criminal Court (17 July 1998) UN Doc. A/CONF.183/9,
17 ILM 999��������������������������������������������� 8, 18, 45, 84, 168, 169, 170, 171, 175, 242, 152, 301
State Treaty for the Re-establishment of an Independent and Democratic Austria (15 May 1955) 
217 UNTS 2949 �������������������������������������������������������������������������������������������������������������������82
Treaty between the Federal Republic of Germany and Israel, 162 UNTS 265�������������������������������������182
xxxvi Table of Authorities
Treaty for the Settlement of Disputes that May Occur Between the United States and Chile,
1914, U.S. T.S. 621, 39 Stat. 1645, T.S. No. 621�������������������������������������������������������������������149
Treaty for the Suppression of the African Slave Trade (7 Apr. 1862), U.S.–Gr. Brit,
12 Stat. 1225, T.S. No. 126���������������������������������������������������������������������������������������������������266
Treaty of Peace, 24 Dec. 1814, Gr. Brit.–U.S., Art. 10, 8 Stat. 218, 63 Consol. T.S. 421�����������������266
Treaty of Peace at Versailles, 28 June 1919, Ger.-Allies, 225 Consol. T.S. 188�����������������������������������181
Treaty of Peace with Japan (ratified 8 September 1951, entered into force 28 April 1952) ������� 179, 264
Treaty on the Final Settlement with Respect to Germany, 12 Sept. 1990, 1696 UNTS 124�����������������182
United Nations Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, GA. Res. 40/34, GAOR, 40th Sess., 96th plenary mtg., Annex,
UN Doc. A/RES/40/34, 1 (1985)������������������������������������������������������������������� 85, 122, 241, 464
Universal Declaration of Human Rights, GA Res. 217A (III), U.N.
Doc. A/810 (1948)�������������������������������������������������������������������� 53, 63, 64, 66, 71, 80, 194, 440
Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331���������������������������������������������������38
 1
Introduction

The protection of human rights is generally recognized to be a fundamental aim of

modern international law. In recent decades, almost every international organization,
regional and global, has adopted human rights norms and responded to human rights
violations by opening avenues of redress for individuals whose rights have been violated
without remedy in domestic law. Consideration of human rights issues has reached into
all organs and bodies of the United Nations, including the Security Council, which has
identified serious human rights violations as threats to international peace and security.
As a result, international human rights law has reduced the content of the reserved
domain of state sovereignty. Today, no state can credibly claim that its treatment of those
within its territory or jurisdiction is exclusively an internal matter.
For all its revolutionary advances, however, human rights law only recently began to
develop a coherent theory and still lacks a consistent practice in providing remedies to
victims of human rights violations. In general, the law is more advanced and consistent
on the issue of the remedies states must provide in domestic law than it is on the role
of international human rights bodies when domestic remedies are unavailing or have
been exhausted without affording adequate relief. Domestic relief is often not forth-
coming, as demonstrated by the rising caseload of all international tribunals. National
procedures may be inadequate, or ineffective, or bypassed because the government in
question claims that priority must be given to ‘reconciliation’ following a period of
conflict or oppression. Governments also continue to claim with some frequency that
lack of resources precludes redress in instances of massive or systematic violation. The
resulting tragedy is that, in general, the greater the number and seriousness of the viola-
tions, the less likely it is that the victims and survivors will achieve the redress required by
human rights law. Fortunately, widespread grants of amnesty to violators have become
less frequent in recent years, although prosecution of the principal authors of violations
remains rare.
Despite the lack of domestic remedies that stimulate international petitions or
complaints, international human rights bodies deciding these matters frequently limit
themselves to finding facts and issuing declaratory judgments, or recommend that
compensation of an unspecified amount be paid to the claimants. Compensatory dam-
ages for both pecuniary and non-pecuniary injury can be, and are, afforded by regional
human rights courts, but non-monetary remedies, such as restitution or measures of
rehabilitation, are less frequently awarded. The Inter-American Court is an exception.
It places reparations at the centre of the entire human rights project, based on its under-
standing that ‘the objective of international human rights law is . . . to protect the victims
and to provide for the reparation of damages’.1
In contrast, other human rights tribunals appear to remain unsure about the scope
of their power to design and award remedies. They have additional concerns about their

1
  Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras (1988) Series C, 28,
ILM 291, para. 134.
2 Introduction

rising caseloads, the proper administration of justice, and the willingness of states to comply
with their decisions and judgments. As a foundational matter, many human rights tribunals
tend to see their primary role as forward-looking, that is, as bringing the state into compli-
ance with its obligations. This view leads to a focus on cessation and non-repetition of the
violation, rather than a retrospective analysis aimed at redressing the harm suffered by the
applicant. A certain reticence and incoherence on the issue of remedies may also stem from
the fact that most members of international human rights bodies lack the national judicial
experience that could lead to a broader understanding of the tribunal’s essential role in
redressing injury.
The most significant factors limiting international remedies may stem from the
sudden development and unprecedented nature of international human rights law.
Emerging hesitatingly following the Second World War but expanding rapidly in recent
years, this law now consists of complex rights and obligations and a wide variety of
international monitoring mechanisms and techniques. During the early decades, states
deliberately chose to refrain from conferring on any international human rights body
compulsory jurisdiction to hear complaints about human rights violations. Regional
bodies now have such competence, but nearly all UN procedures remain optional for
states that are parties to the treaties. Further, nearly all UN agreements omit any explicit
authority for treaty bodies to afford remedies at the end of monitoring procedures, other
than specifying that a treaty body may transmit and publish its ‘views’ about the viola-
tions alleged in admissible communications. In sum, the complaints procedures are
barely outlined in treaty provisions, creating uncertainty about the functions and powers
the treaty bodies can exercise.
Nonetheless, over time, human rights tribunals have developed a law of remedies
drawn from the traditional law of state responsibility, domestic legal systems, and the
different views of judges and committee members about the role of international bod-
ies in affording relief to victims of state abuse. Remedies range from declaratory judg-
ments to awards of widely differing amounts of compensatory damages, to orders for
specific state action. It still remains rare to find a reasoned decision articulating the
principles on which a non-monetary remedy or specific amount of compensation is
afforded, although there has been a decided shift towards more analysis in recent years.
It is no longer clear that, as one former judge of the European Court of Human Rights
privately stated in 1998: ‘We have no principles’, to which another judge responded,
‘We have principles, we just do not apply them’. Indeed, the European Court has now
unpublished written standards on compensation for some violations, but the fixed
amounts these standards recommend are confidential, leaving clarity on the issue of
remedies rather elusive.
The remainder of this introduction sets the stage for the analysis that follows by, first,
providing a brief overview of the evolution of the law of remedies in domestic legal sys-
tems and international practice. It then turns to the development of international human
rights law.

1.1  Evolution of the Law of Remedies

Early legal systems unified the goals of redress, deterrence, and punishment and failed
to distinguish between public and private law when an individual committed a wrong.
Punishment of the perpetrator and justice for the victim were usually merged through
victim self-help, encouraged or regulated by law. Retaliation, a form of negative resti-
tution by equivalence, was permitted by several ancient codes, including the Code of
 Introduction 3

Hammurabi,2 Mosaic,3 and Roman law.4 Mesopotamian legal systems allowed the vic-
tim to choose revenge or compensation, both of which were regulated by courts, which
set the permissible level of revenge or amount of compensation.5
The ancient Near East, a major source of western legal systems, developed common
fundamental juridical concepts and both customary and written rules on remedies over
the space of three millennia.6 Law codes of Mesopotamia, including that of Hammurabi,
and other evidence from societies of the region over this period show that monarchical
legitimacy rested on two aspects of justice: upholding the legal order and correcting
abuses.7 The king’s divine mandate in Babylon was ‘to make equity prevail in the land,
to destroy the wicked and the evil, to prevent the strong from oppressing the weak’.8
‘Although this mandate was subject to divine justice alone, the king’s malfeasance could
in practice provide retroactive justification for rebellion or usurpation of the throne’.9
The state’s responsibility to assure justice included providing compensation for vic-
tims of crime and their families when the wrongdoer could not be prosecuted.10 Where
the victim was a foreign national, ‘there were rules of international law imposing liability
on a state to investigate . . . to pursue the culprits, and if not found, to pay compensation,
as in internal law’.11 In some cases, treaties regulated the modalities of compensation.12
While most of the ancient texts refer to compensation for private wrongs, some also
indicate redress for official misconduct. In the Middle Kingdom of Egypt, a dishonest
official could have his possessions confiscated and presented to the victim.13 Hammurabi
ordered restitution of wrongfully expropriated property.14
It has been suggested that the law of remedies developed in legal systems to replace private
revenge.15 Roman law came to permit wrongdoers in certain cases to pay compensation

2
  The Code of Hammurabi proclaimed: ‘If you cause the loss of an eye, your eye shall be taken. If
you shatter a limb, your limb shall be shattered, but if it is a poor man’s eye or limb you may pay money.
If you cause loss of a tooth, your tooth comes out’: Code of Laws promulgated by Hammurabi, King
of Babylon (2285–2242) b.c. in C.H.W. Johns, The Oldest Code of Laws in the World (Edinburgh,
1903), 43.
3
  In Mosaic law the penalties for wrongs under the lex talonis are based on a return for what has been
done: death for death, eye for eye, tooth for tooth, hand for hand: Exodus 21: 23–5.
4
  The Roman Twelve Tables provided compensation for unintentional killing, but for homicide
‘the killer, once the fact of killing had been determined by a court, was left to the revenge of the vic-
tim’s kinsmen’. The penalty of retaliation (talio) was exacted for serious physical injury while a fixed
financial penalty was imposed for less serious harm; the amount depended on the nature of the injury:
G. MacCormack, ‘Revenge and Compensation in Early Law’ (1973) 21 Am. J. Comp. L. 69, 72. In
cases not covered by a statutory amount, compensation was provided with the amount depending on
the nature of the injury, the character of the injured, and the general surrounding circumstances: see
R.W. Leage, Roman Private Law (London, 1937), 377. Medical expenses and loss of employment
were also considered in cases not involving death, ibid, 381. Vicarious liability of employers for acts
of their employees also existed.
5
  Raymond Westbrook, ‘Introduction’, in Raymond Westbrook (ed.), A History of Ancient Near
Eastern Law (Leiden, 2003), 78.
6
  See, generally, Westbrook (ed.), A History, supra n. 5. 7
 Ibid, 26.
8
  J. Finkelstein, ‘Ammisaduqa’s Edict and the Babylonian Law Codes’ (1961) 15 JCS 91.
9
  Westbrook (ed.), A History, supra n. 5. 10
 Ibid, 72.
11
 Ibid, 73.   12 Ibid, 86.
13
  Richard Jasnow, ‘Egypt: Middle Kingdom and Second Intermediate Period’ in ibid, 255, 281.
14
  Raymond Westbrook, ‘Old Babylonian Period’, in ibid, 361, 364.
15
  For a study of this thesis, see G. MacCormack, supra n. 4. The author uses two approaches to early
law: evaluation of archaic society from recorded history and the study of contemporary primitive socie-
ties. Contra D. Daube, Studies in Biblical Law (Naples, 1948), 102 et seq., 116 et seq., 128, who argues
that revenge and compensation are equal in age and that the principle of revenge is itself incorporated
as an element of compensation. It has been suggested that Islamic decision-makers in Africa turned
to compensation because of difficulty in determining the exact retribution due in applying the law of
4 Introduction

in money or in kind. The offer of the appropriate amount excluded the right to take
revenge.16 Similarly, traditional Islamic law established alternative remedies for causing
grievous bodily harm: diya (monetary compensation) or qisas (retaliation by inflicting
the exact harm on the offender).17 Other legal systems merged punishment of wrongdo-
ers and compensation of victims in penal law.18 The Chinese Tang Code (AD 619–906)19
allowed ‘redemption’ of a wrongdoer through the payment of compensation.20
Some African Bantu societies redressed by compensation instead of retaliation because
‘all blood belongs to the chief ’.21
As legal systems developed, they came to separate the private action for redress from
criminal prosecution on behalf of society as a whole, which claimed the exclusive right
to punish wrongdoers.22 All modern societies distinguish in theory between those acts

retaliation: J.N.D. Andersen, Islamic Law in Africa (London, 1970), 201. The concept of restitution by
equivalent can be seen in such early local customs as the Nigerian requirement that a deliberate killer
had to supply a boy to serve as son to the parents of the deceased. The accidental killer need only supply
a goat for sacrifice: ibid, 203. Maliki law had a tariff for wounds, determined by asking how the injury
would affect the market value of a slave with like damage. Tables were used in some cases, with values
for damage to different parts of the body. Certain grave losses of faculties were valued as equivalent to
death: F.H. Ruxton, Maliki Law (London, 1916), 312. According to Ruxton, at least one Islamic school
of jurisprudence holds that the state entered the picture to ensure that the injury to the wrongdoer did
not exceed that inflicted by him: ibid.
16
 MacCormack, supra n. 4 at 74. Money as a remedy was established by the end of the twelfth cen-
tury in English law, derived from German customary law.
17
  The basis can be found in the Koran: ‘O ye who believe! The law of equality is prescribed to you
in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any
remission is made by the brother of the slain, then grant any reasonable demand, and compensate
him with handsome gratitude. This is a concession and mercy from your Lord. After this whoever
exceeds the limits shall be in grave penalty’: Koran 2:178 quoted in M. Lippman, S. McConville, and
M. Yerushalmi, Islamic Criminal Law and Procedure (New York, 1988), 87. See also A. A. An-Na’im,
‘The Right to Reparation for Human Rights Violations and Islamic Culture(s)’, in Seminar on the
Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and
Fundamental Freedoms (SIM Special Pub. No. 12), 174, 180.
18
  P. Catala and J.A. Weir, ‘Delict and Torts: A Study in Parallel’ (1963) 37 Tul. L. Rev. 573, 582.
In Indonesia, Adat legal institutions included compensation of victims as part of the punishment:
C. Fasseur, ‘Colonial Dilemma: Van Vollenhoven and the Struggle Between Adat Law and Western Law
in Indonesia’ in W.J. Mommsen and J.A. DeMoor (eds.), European Expansion and the Law (New York,
1992), 245.
19
  The Tang Code, trans. W.C. Johnson (Princeton: 1979).
20
 If the person was killed, the redemption money generally went to the government, but an
injured party received the redemption money personally: ibid, 55, 60. During the Qing dynasty (AD
1644–1911), the Great Qing Code added other remedies. A serious disability inflicted on another led
to the wrongdoer’s property being confiscated and given to the victim’s family: The Great Qing Code,
trans. W.C. Jones (Oxford, 1994), 224. Redemption money also became designed to cover burial and
medical expenses: ibid, 279.
21
  Compensation for the murder went to the chief, who could compensate the victim’s family as he saw
fit: T.O. Elias, ‘The Nature of African Customary Law’, in E. Cotran and N.N. Rubin (eds.), Readings
in African Law (London, 1969), 106. Among the Tswana also, certain crimes against bodily security are
crimes that also provide civil remedies. For assault, the chief levied a fine, which belonged to the chief and
part, if not all, was awarded to the victim. The aspect which wronged the individual was seen to merit
restitution/redress; the aspect which wronged the society was seen to merit punishment: I. Schapera,
‘A Handbook of Tswana Law and Custom’, in Readings in African Law, supra in this note, at 112. The
Basuto assessed damages for assault based on whether or not blood was shed, the gravity of the injury,
the nature of the assault, the degree of provocation, the relative status of the parties, the willfulness of the
offender, and the nature of the weapon used. Amounts assessed could aim both to compensate the victim
and punish the wrongdoer: H. Ashton, ‘The Basuto’, in Readings in African Law, supra in this note, at 141.
22
  According to MacCormack, retaliation still plays a role in a few societies today and serves the same
purpose as other remedies: it ‘imports an element of compensation . . . it is not positive compensation.
But it may be described as negative compensation in the sense that the loss is made good through the
infliction of a similar loss on the killer’s group’: MacCormack, supra n. 4 at 81.
 Introduction 5

that necessitate redress between individuals from those that are prohibited and punished
by the penal law. In general, national legal systems provide compensatory justice to
redress individual wrongs through judicially awarded and enforceable remedies.23 However,
the distinction that punishment pertains to crime and that compensation pertains to tort/
obligation is not uniformly applied in legal systems even today. Many national systems per-
mit the award of punitive or exemplary damages in civil actions to punish and deter those
who have committed particularly egregious wrongs. The desire to punish the wrongdoer as
part of redress expresses a view of retributive justice or fairness. Penalties are seen as deserved,
whether or not they act to deter others from similar misconduct, because other remedies do
not sufficiently indicate the blameworthiness of the act that caused the injury.
The specific elements of redress are often set forth by statute.24 A general principle
found in all legal systems is that a wrongdoer has an obligation to make good the injury
caused, reflecting the aim of compensatory justice.25 Nearly all legal systems therefore
call for restitution of property wrongfully taken and full compensation for the material
and non-material harm resulting from physical or emotional injury.26 The advent of
modern social security legislation has shifted some of the emphasis in remedies from
compensation to risk allocation and deterrence. Many states today provide a public
system of compensation to victims of crime.27 In turn, if social security or insurance

23
  These purposes are specified in the United States Restatement (Second) of Torts, s. 901, which states
that the rules for determining the measure of damages are based upon the purposes for which actions of
tort are maintainable: (a) to give compensation, indemnity, or restitution for harms; (b) to determine
rights; (c) to punish wrongdoers and deter wrongful conduct; (d) to vindicate parties and deter retali-
ation or violent and unlawful self-help. A leading authority on tort law in Portugal points out that ‘the
obligation to pay compensation in Portuguese law is not only reparative in character, but also puni-
tive’: Ricardo Ben-Oliel, ‘New Guidelines in Tort Law in the Portuguese Civil Code’, in J. Spier (ed.),
Limits of Liability: Keeping the Floodgates Shut (The Hague, 1996), 343.
24
  Art. 134 of the Chinese Civil Code, for example, lists the forms of remedies available separately or
in combination when civil liability is established: cessation of infringement; elimination of obstructions;
elimination of danger; return of property; restoration of original condition; repair, reconstruction, or
replacement; payment of compensation; payment of (agreed) contract breach money; elimination of
effects and restoration of reputation; apology. The People’s Court in civil cases may, in addition to using
the above provisions, issue admonitions, order repentance, or confiscate property used for illegal activi-
ties or things obtained illegally, and may also in accordance with law impose fines or detention: Chinese
Civil Code, Art. 134 (trans. H.R. Zheng) (1986) 34 Am. J. Comp. L. 715.
25
  Morocco’s Code of Obligations is typical. It sets forth the principle of compensation for victims
of wrongdoing in Art. 77 which provides: ‘Any act whatsoever perpetrated by a person who, without
being authorized by law, knowingly and intentionally causes material or moral injury to another person
obliges its perpetrator to redress that injury, once it has been established that the act is the direct cause of
the injury. Any stipulation to the contrary is void’: ‘Morocco’ in Report of the Secretary-General, ‘Right
to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights
and Fundamental Freedoms’ (1996) E/CN.4/1996/29/Add.1, 5. Art. 78 specifies that every individual
is responsible for any moral or material injury he may have caused. Art. 105 of the Penal Code provides
that during criminal proceedings a decision imposing a penalty or measure may rule on restitution
and the award of damages to the victim. The award of damages ‘shall ensure that the victim obtains
full redress for the personal, current and established injury he has been directly caused by the offence’.
26
  In Israel, the aim of compensation is restitutio in integrum or ‘putting the injured party back in the
position he was in, or would have been in, had the tort not been committed’: Israel Gilead, ‘Tort Law’,
in I. Zamir and S. Colombo (eds.), The Law of Israel: General Surveys (Jerusalem, 1995), 475. Similarly,
in Portugal, a new civil code adopted in 1966 and drawing on the German and Italian codes, includes
the principle of restitution.
27
  All Scandinavian penal codes contain provisions governing indemnification for criminal acts,
e.g.: Finland, Law on compensation out of public funds for damages caused by crime of 21 Dec. 1973;
Norway, Regulations on compensation by the State for personal injuries caused by punishable ‘acts’ of
11 Mar. 1976; Sweden, Law on damage caused by crime of 18 May 1978. France adopted the Law of 3 Jan.
1977 providing compensation to certain victims of bodily injury resulting from criminal acts. Austria
similarly has enacted the Act for payment of assistance to victims of crime of 9 July 1972. Germany pro-
vides public indemnification for victims of violent crime through the Law on compensation of victims
6 Introduction

pays the victim’s losses, the state or insurance company may be able to claim from the
wrongdoer the amount paid to the victim.28
On the international level, remedies have undergone similar evolution. For centuries,
‘the idea that aliens must be accorded justice was associated with the idea of reprisals in
the sense that where justice was denied to an alien the latter had a right to take reprisals
against the judge who so denied it or against his co-nationals’.29 The right of reprisal is
found in numerous treaties from the early Middle Ages30 to the thirteenth and four-
teenth centuries.31 It was accepted that denial of justice was a serious injury to an alien.
Some authors trace the importance of according justice to all, including aliens, back to
Scandinavia and through the Visigoths to Spain.32 In England, the practice of restricting
reprisals to the case of denial of justice was laid down in a statute passed in 1353.33
The notion of communal responsibility eventually emerged to replace the liability of
individual judges for denial of justice.34 In a monograph on reprisals, written by Bartolus
in 1354, reprisals were identified as permissible only when there is a just cause and the
‘most legitimate cause is that based upon the default of the community in dispensing
justice’.35 Giovanni da Legnano, in his treatise of 1360, agreed that denial of justice
resulted from the failure of the judge to remedy a prior wrong, and similarly asserted that
it becomes a fault of the community if no appeal is possible.36 The theoretical justifica-
tion for collective responsibility is that the judge has a mandate from, and is an agent of,
the community. If the judge denies justice, the community is liable for his failings and

of crime of 11 May 1976, as does the Netherlands. The European Convention on the Compensation
of Victims of Violent Crime, 24 Nov. 1983, E.T.S. No. 116, discussed infra in Chapter 4, establishes
regional norms on this issue.
28
  In Europe, the liable party generally must reimburse the welfare service for welfare or social
security payments made to the injured. Denmark is an exception, where the state pays for all medi-
cal expenses and does not claim recoupment from awards. Perhaps because of this, damages awards
are very low in Denmark. See D. Mcintosh and M. Holmes, Personal Injury Awards in EU and EFTA
Countries: An Industry Report, (2nd edn, London, 1994). For German law, see generally, B.S. Markesinis,
A Comparative Introduction to the German Law of Torts (3rd edn, Oxford, 1994).
29
  Hans W. Spiegel, ‘Origin and Development of Denial of Justice’, 32 Am.J. Int’l L. 63 (1938), 64.
30
  From the end of the eighth century, laws allowed reprisal against the property of a bishop who
denied justice. Visigoth law allowed direct action to be taken against a judge who denied justice: ibid.
31
  For example, under the Treaty of 836 between Sicard of Benevent and the Neapolitans, denial of
justice suffered by a subject of one party within the territory of the other gave rise to a right of reprisals,
but reprisals against merchants were entirely prohibited: ibid. The Treaty concluded in 840 between
Emperor Lotar I on behalf of several cities in what is now Italy with Doge Petrus Tradenicus of Venice
included the right to take reprisals against judges of one territory who denied justice to the subjects of
another: ibid, 65.
32
  The law of the Visigoths sanctioned reprisals against a judge who denied justice to individuals not
domiciled within the jurisdiction. Roman law was similar. See the Codex Theodosianus, II, 1, 6: Spiegel,
supra n. 29.
33
  27 Edw. III, stat. 2, c. 17. In the early case of Wynand Morant v. Andrew Papyng and Partners, an
English plaintiff and defendants from Groningen, liability was based on denial of justice by the lord who
possessed jurisdiction and not on the default of the individuals who repudiated a debt owed the plaintiff.
Wynand Morant v. Andrew Papyng and Partners in H. Hall, Select Cases Concerning the Law of Merchant
(London, 1930), XII, 81–3.
34
 See James Brown Scott, The Spanish Origin of International Law (Oxford, 1933), I, cxxiii.
Covarruvias (1512–77) stressed that the state must suffer if it fails to punish wrongs committed by
its nationals: Covarruvias, Opera Omnia, (Antwerp, 1638), I, 492; II, 148. Gentili and others distin-
guished deni and defi de justice, the latter concerning wrongs originally committed by the state, the
former being a denial of justice for an individual wrong: Gentili, De Juri Belli Libri (ed. James Brown
Scott (1933)) (1598), III, bk. I, ch. XXI, trans. John C. Rolfe.
35
  Quoted in Spiegel, supra n. 29 at 77.
36
  Giovanni da Legnano, Tractatus de bello, de represaliis et de duello (James Brown Scott, ed.1917).
 Introduction 7

reprisals serve to replace a non-existent appeal. As such, Spanish writers asserted that
reprisals were limited to restitution, to restore the status quo after the failure of a state to
remedy a wrong.37
Later writers, like Vattel, continued to maintain that denial of justice is limited to the
failure to redress a prior wrong. That failure, in turn, creates a new wrong, attributable to
the state,38 a notion carried forward in the modern law of state responsibility, discussed
in Chapter 3. Linked to this concept is the requirement of exhaustion of local remedies,
which remains a vital part of the doctrine of diplomatic protection as well as human
rights law, as does the doctrine that failure to afford access to justice and redress for the
injury caused by an illegal act constitutes the separate wrong of denial of justice.

1.2  The Innovations of Human Rights Law

International concern for human rights is not a new subject entirely. As the prior section
discussed, international custom has long held that when a citizen of one state is mis-
treated by an act or omission attributed to another state, the claim of the injured citizen
who has exhausted local remedies in the mistreating state can be and often is espoused
by the state of nationality, which itself is deemed to be injured under international law.
Such claims generally have been settled by negotiation or by submission of the matter to
an international claims commission or arbitral tribunal.39 In contrast, a state’s treatment
of its own nationals escaped international scrutiny, with limited exceptions, until the
latter half of the twentieth century.40
The atrocities perpetrated during the Second World War brought about a funda-
mental change in the law. Today, concern for the promotion and protection of human
rights is woven throughout the United Nations Charter, beginning with the preamble,
which ‘reaffirm[s]‌faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women and of nations large and small’.41
One of the basic purposes of the United Nations is to achieve international cooperation
in promoting and encouraging respect for human rights and fundamental freedoms.42
To achieve these purposes, the Charter imposes obligations on the Organization and all
member states. Article 55 calls on the United Nations to promote ‘universal respect for,
and observance of, human rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion’. In Article 56, ‘all members pledge themselves to
take joint and separate action in cooperation with the Organization for the achievement
of the purposes set forth in Article 55’. The United Nations has determined that states
that engage in a consistent pattern of violating internationally guaranteed human rights
breach this Charter obligation.
International law is weak or lacking in two of the most common procedures existing
in domestic legal systems to remedy and deter wrongdoing: criminal sanctions and civil

37
 Spiegel, supra n. 29 at 72.
38
  Em. De Vattel, The Law of Nations, Bk. II, ch. XVIII, sec. 349.
39
  See Chapter 5.1 infra.
40
  For a discussion of the exceptions, see L. Sohn, ‘The New International Law: Protection of the
Rights of Individuals Rather than States’ (1982) 32 Am.U.L.Rev. 1; L. Sohn and T. Buergenthal,
International Protection of Human Rights (Indianapolis, 1973), 1–337; D. Shelton, (ed.), Handbook of
International Human Rights Law (Oxford, 2014), Pt. II.
41
  United Nations Charter, 26 June 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153.
42
  Ibid, Art. 1(3).
8 Introduction

remedies against the individual perpetrator. The International Criminal Court’s jurisdic-
tion is confined to a short list of international crimes and its ability to arrest and prosecute
has proved to be limited.43 Only states have standing to bring cases to the International
Court of Justice, although they are increasingly doing so in human rights cases.44 The
international law of state responsibility is an inadequate model because it derives from
inter-state cases between juridically equal parties, where diplomatic concerns and
broader issues of cooperation or conflict affect the results.45 International human rights
law is the first area of international law where individuals may bring actions against
states in international tribunals,46 but the imbalance in respective power and juridical
status between states and individuals affects the procedures and the perceived role of the
human rights institutions in affording remedies. Further, unlike injured aliens and their
states, most human rights complainants remain within the jurisdiction and subject to
the power of the offending state, generally long after the proceedings are terminated.
Human rights cases differ from private actions in tort as well. Although international
wrongs are committed by individuals and not by abstract entities (as was pointed out
at Nuremberg),47 it is the state itself, not the person or persons who inflicted the harm,
which is generally held responsible. No international procedure exists today for bring-
ing an international civil action against an individual human rights violator.48 Rather
than leave the victim without a remedy, the state is held responsible, a just and rational
outcome in many instances, even if individuals could be sued, given that human rights
violations often result from the enactment of public laws or the adoption of governmen-
tal policies. Where the violations derive from the operation of the normal democratic
process, it is appropriate to hold the state liable, despite the fact that any compensation
awarded will come from the public treasury, the revenues of which may be derived at

43
  See the Rome Statute of the International Criminal Court, A/CONF.183/9, adopted 17 July
1998, in force 1 July 2002. Previously, the United Nations created an ad hoc International Criminal
Tribunal for the former Yugoslavia (ICTY) by Security Council Resolution 808 (1993) and adopted
the statute of the tribunal in UNSC Res. 827 (1993) SCOR, 48th Sess., 3217th mtg, UN Doc.
S/RES/827. It established the International Criminal Tribunal for Rwanda (ICTR) sixteen months
later. The ICTY was created ‘for the prosecution of persons responsible for serious violations of inter-
national humanitarian law committed in the territory of the former Yugoslavia since 1991’: UNSC
Res. 808 (1993) S/RES/808. The ICTR has concurrent jurisdiction with national courts over crimes
of genocide, war crimes, and crimes against humanity. For the statute of the ICTR, see UNSC Res.
955 (1994) SCOR 49th Sess., 3453rd mtg, Annex, art. 6, UN Doc. S/RES 955. See Chapter 3.4 infra.
44
  See Chapter 5.3 infra.
45
  It is nonetheless evident that the 2001 ILC Articles on State Responsibility have had an impact on
human rights tribunals, in emphasizing cessation of the breach as an ongoing obligation and expressing
a preference for restitution as a remedy when it is possible to achieve it. See further Chapter 3, infra.
46
  Other developments in international law are increasing the standing of non-state actors; e.g. the
Convention on the Settlement of Investment Disputes between States and Nationals of Other States,
17 UST 1270, TIAS No. 6090, 575 UNTS 159 the Seabed Dispute Chamber of the Law of the Sea
Tribunal (UNCLOS, Arts. 186–7), UN Doc. A/CONF.62/122, reprinted in (1982) 21 ILM 1261, the
North American Agreement on Environmental Cooperation (1993) 32 ILM 1480, and the Rotterdam
Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides
in International Trade (1999) 30 ILM 1, permit non-state actors to bring complaints against states in
certain circumstances.
47
  1 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg 1946
(transcript of proceedings) (1947) 41 Am.J. Int’l L. 172, 223.
48
  The Rome Statute of the International Criminal Court, supra n. 43, foresees such a possibility in
the context of criminal prosecutions. Article 75 mandates the Court to establish principles relating to
reparations to or in respect of victims of crimes within the jurisdiction of the Court. The Court may
order reparations from the person convicted or from an international trust fund for victims of crime,
established pursuant to Article 79. See Chapter 5.4, infra.
 Introduction 9

least in part from the victims of the violations. The corporate body is responsible for the
policies of the officers it has chosen.
The closest analogy to international human rights cases is found in domestic legal
procedures against the state or state officials who violate the international, constitu-
tional, or statutory rights of citizens. It is not a perfect analogy. In domestic legal systems,
the individual victim bringing an action primarily aims to obtain redress for harm done.
Further, in some jurisdictions, such actions can be brought only against named individ-
uals or agencies within the government, not against the government or state as a whole.
In contrast, human rights proceedings are often viewed more as a means to monitor and
induce compliance with treaty regimes in the interest of the international community
than as a mechanism of redress for the individuals who have been harmed.49 From this
perspective, petitioners serve mainly as means to bring attention to the violations, akin
to a citizen action.
In sum, precedents from international and domestic law can be used only with the
appropriate consideration being given to the unique characteristics of international
human rights cases. Many questions arise. Who is entitled to remedies? What distinctions
should be made between individual cases and situations of gross or systematic violations
of human rights? Should compensation be favoured as a remedy or are non-monetary
remedies more important? What criteria should be applied to determine amounts of
compensation and methods of payment? When does remedial justice demand the pros-
ecution and punishment of those responsible for the violations? What part should the
gravity of the offence play in the remedies afforded? This book examines human rights
law on the duty of states to afford adequate and effective remedies as a consequence of
breaching their human rights obligations. It also reviews the jurisprudence of interna-
tional tribunals that have jurisdiction and competence to afford remedies to individuals
and groups whose human rights have been violated. It includes a brief examination of
the comparative law of remedies, especially as reflected in national judicial decisions and
the decisions of international arbitral and criminal tribunals, based on international
human rights law.
The central concern is with the relationship between victims and the state causing
injury, as well as with the powers and functions of the various international and national
tribunals that hear human rights cases. The book attempts to assess the merits of widely
heard criticisms of remedies afforded by human rights bodies. Commentators, as well as
litigants, criticize some of this practice for arbitrariness and a lack of coherence, transpar-
ency, predictability, and justice.50
The aim of this work is not simply to criticize, but to propose a coherent foundation
for human rights remedies, together with standards and principles on which future rem-
edies may be based. To provide context, Chapter 2 discusses the concepts and theories,
the nature and purpose of remedies. Chapter 3 presents the sources and general content
of the law of remedies and Chapter 4 considers domestic remedies. Chapter 5 then turns

49
  See D. Shelton, ‘Form, Function and the Powers of International Courts’, (2009) 9 Chi. J. Int’l
L. 537.
50
  J.-F. Flauss and E. Lambert Abdelgawad (eds.), La Pratique d’indemnisation par la Cour européenne
des droits de l’homme (Brussels, 2011); P. Tavernier, ‘La contribution de la Cour européenne des droits
de l’homme relative au droit de la responsabilité internationale en matière de réparation—Une remise
en cause nécessaire’, (2007) Revue trimestrielle des droits de l’homme 72, 945, 952. Separate opinions of
judges agree. In Guiso-Gallisay v. Italy, Judge Spielmann interpreted the practice of the European Court
of Human Rights under Article 41 as ‘arbitrary’. Dissenting Opinion of Judge Spielmann, Guiso-Gallisay
v. Italy (just satisfaction), App. No. 58858/00 (ECtHR, 22 December 2009) para. 16.
10 Introduction

to the decisions of international arbitral and claims tribunals; it also looks at remedies
claims presented to the International Court of Justice and the International Criminal
Court. Chapter 6 looks at the remedial jurisdiction and approaches of human rights
tribunals. Part III addresses procedural issues in presenting claims for remedies before
international tribunals and Part IV looks at the various forms of redress awarded by
human rights tribunals and the enforcement of such awards.
 PA RT  I
T H E C O N C E P T U A L F R A M E WO R K
 2
Meanings and Purposes of Remedies

In most legal systems, including the international legal system, the aims of compensa-
tory justice and deterrence are most often cited as the foundation for the law of rem-
edies. Restorative justice, retribution, and economic analysis have provided additional
theoretical models to approach the issue of responding to human rights violations. This
chapter discusses the theoretical foundations for remedies and the differences between
private law and public law cases.

2.1  Preconditions to a Claim

A remedy is owed only to certain persons and only under certain conditions. This section
describes the essential requisites to remedies.

2.1.1 Breach of an obligation

In national legal systems, the breach of a legal obligation owed to another gives rise to a
duty to repair the harm caused by the breach. Similarly, in the international law of state
responsibility, an act or omission attributable to a state and in breach of an international
obligation of that state gives rise to a new obligation to make reparations for any injury
caused, as well as a continuing obligation to cease the breach and conform to the norm
that was violated. The sources of human rights obligations include treaties, custom,
general principles of law, and national constitutional and statutory guarantees owed to
individuals at the time of any harmful act.
Human rights law imposes a complex set of binding obligations on states. Global and
regional instruments variously call for states parties to ‘respect’, ‘ensure’, ‘secure’, ‘pre-
vent and punish’, ‘adopt measures’, ‘guarantee’, and, often, ‘cooperate with each other’
to achieve the full enjoyment by everyone of the rights set forth in the instruments. The
language adopted in the texts makes clear that in many instances it is not enough for the
state to abstain from directly infringing rights; authorities must also take positive action
to secure the exercise of the rights. In addition, certain human rights obligations demand
results without exception, for example, to end torture or abolish the death penalty. In
contrast, other rules impose binding obligations of conduct, such as to exercise due dili-
gence over the actions of non-state actors.
Human rights obligations fall on all state actors, irrespective of the level or branch of
government in which they serve. State actors must conduct themselves so as effectively
to ensure the free and full exercise of human rights. Any impairment of guaranteed rights
which can be attributed under the rules of international law to the action or omission of
a public authority constitutes an act imputable to the state and the state thereby becomes
responsible for the conduct. Thus, whenever a state organ, official, or public entity violates a
guaranteed right, this constitutes a failure of the state’s obligation, even if the organ or official
has contravened provisions of internal law or exceeded its scope of authority. That violation
may be cured, however, by the provision of timely and effective remedies and redress.
14 The Conceptual Framework

The duty to ensure rights has raised difficult issues concerning the standard of care,
attribution of conduct to the state, and evidence. In the case of Oneryildiz v. Turkey,
the European Court of Human Rights (ECtHR) explained that European Convention
Article 2 (right to life) ‘must be construed as applying in the context of any activity,
whether public or not, in which the right to life may be at stake, and a fortiori in the case
of industrial activities, which by their very nature are dangerous, such as the operation of
waste–collection sites’.1 Article 2 thus imposes obligations on the state whether the activ-
ity is conducted by the state or by a private company. The resulting duty of care depends
on several factors: the harmfulness of the phenomena inherent in the activity; the con-
tingency of a risk of death to the applicant; the status of those involved in creating the
risk; and whether or not the conduct was deliberate. In Oneryildiz, the European Court
found that the authorities must have known of the risk to life and of the need to take pre-
ventive measures.2 The state therefore breached its obligation under Convention Article 2
to take such preventive measures as were necessary and sufficient to protect lives.

2.1.2 Resulting harm
There must be a direct causal link between the victim and the harm suffered; only when
this link exists and is proved does the right to a remedy arise. The term ‘harm’ can be
understood as the negative outcome evaluated by comparing the person’s situation with
and without the causative event. Identifying the harm caused by human rights violations
requires assessing multiple factors, including: the right that was violated; the gravity of
the violation; and whether it was part of a pattern or practice. The individual charac-
teristics of those whose rights were violated are also important, including the existence
of pre-existing conditions or injuries, gender, age, personality and experience, wealth,
family, culture, social position, and community reaction (stigma).3
Harm can be collective as well as individual. Targeting leaders of traditional or indig-
enous communities, for example, can have a direct and negative impact on the entire
community. Society as a whole may be harmed. Even if wrongful conduct does not cause
provable material injury, it nonetheless concerns the public because it attacks core values
by which the society defines itself.4 In this sense, criminal prosecution and punishment
can be seen as a form of reparation for society as a whole. Such action announces publicly
that these wrongs are prohibited and will not be tolerated. Tort law and remedies also
serve the purpose of constituting an expression of condemnation.
The dignitary harm occasioned by human rights violations is a recognized injury. This
recognition importantly serves to indicate that society understands and acknowledges
the pain and humiliation experienced by victims,5 as well as their sense of injustice.6 It
involves extending to victims the concern and respect due to them by virtue of what they

1
  Oneryildiz v. Turkey [GC], App. No. 48939/99, 2004-XII (ECtHR, 2004) 41 EHRR 20.
2
  Ibid, para. 101.
3
  Amnesty International, Victim Focused Human Rights: Ensuring Effective Remedies for Violations
(n.p. 2008).
4
  R.A. Duff, ‘Theories of Criminal Law’, in Stanford Encyclopedia of Philosophy (Winter 2002). See
also Brigitte Bollecker-Stern, Le prejudice dans la theorie de la responsabilite internationale (Paris, 1973),
referring to ‘prejudice juridique’ as a type of public injury.
5
 Frank Haldnmann, ‘Another Kind of Justice:  Transitional Justice as Recognition’, (2008) 41
Cornell International Law Journal 675, 678.
6
  Judith Shklar writes: ‘No theory of either justice or injustice can be complete if it does not take
account of the subjective sense of injustice and the sentiments that make us cry out for revenge’. Judith
N. Shklar, The Faces of Injustice (New Haven and London,1990).
 Meanings and Purposes of Remedies 15

have suffered. In many cases this requires reaching beyond compensation to investigate
the full dimension of injustice and the sense of victimization it arouses. Violations such
as torture or rape cause more than physical suffering, because they involve a negation
or devaluation of the person. Any justice system responding to such acts must therefore
recognize the significance of moral recognition of the victims:
…[E]‌very human subject is dependent, in an elementary way, on a context of social forms of
interaction that are regulated by normative principles of mutual recognition; and the absence of
such recognition relations will be followed by experience of disrespect or humiliation that cannot
be without damaging consequences for the single individual’s identity formation.7
Some authors suggest that the value of investigating phenomena of disrespect and injury
stems from the fact that moral injury always involves an experience of denial of recog-
nition; investigation, in contrast, demonstrates the moral significance of recognition,8
which is vital for becoming a fully autonomous individual.9
Another way of considering non-monetary injury emerges from the human rights
concept of the equal dignity of all human beings. This legal framework considers that
all persons are morally responsible agents whose lives are meaningful and significant.
Systematic patterns of exclusion and denigration undermine this framework and the
social conditions for self-realization.10 A good society is one in which everyone is free
from being denigrated and is given the chance to be recognized and valued by society for
individual accomplishments and abilities.11
Humiliation, in contrast, is an injury to the ‘respect a human being deserves for the
very fact of being human’.12 It is something not done by a good or ‘decent’ society,13
because a sense of self does not emerge in isolation but in interaction with other people.14
Human beings need the validation or approval of others. Practices and institutions that
express attitudes of denial and denigration threaten a sense of self-worth. Wrongful acts
convey a message of moral insignificance, treating the victims as if they do not matter
and need not be taken into account.15 The trauma of humiliation is countered by a prin-
cipled commitment to improving human dignity and redressing humiliation to ensure
a minimally decent order.

2.1.3 Identified or identifiable injured parties

The variety of procedures that may be instituted to obtain redress for human rights vio-
lations gives rise to different terms for the person who files a claim: plaintiff, applicant,
complainant, petitioner. In this volume, the terms ‘victim’ or ‘injured party’ are used to
refer to one whose rights have been violated, although some survivors of human rights

7
 Haldnmann, supra n. 5; Axel Honneth, ‘Recognition and Justice: Outline of a Plural Theory of
Justice’, (2004) 47 Acta Sociologica 351, 354.
8
  Axel Honneth, Kampf um Anerkennung: Zur moralischen Grammatik sozialer Konflikte (Frankfurt,
1992), trans. Joel Anderson as The Struggle for Recognition:  The Moral Grammar of Social Conflicts
(Cambridge, 1995), 160–179.
9
 Ibid, 174. 10
 Ibid, 134. 11
 Ibid, 130.
12
  Avishai Margalit, The Decent Society, trans. Naomi Goldblum (Cambridge, 1996) 19. A slightly
different formulation sees humiliation in terms of acts that reduce or impair self-respect. See Anthony
Quinton, ‘Humiliation’, (1997) 64 Soc. Res. 77, 95–97.
13
  Margalit, preceding note, 4.
14
  See Honneth, n. 8 at 92–130, 138; Margalit, n. 12, at 124.
15
  See Jean Hampton, ‘Forgiveness, Resentment and Hatred’, in Jeffrie G. Murphy & Jean Hampton
(eds.), Forgiveness and Mercy (Cambridge, 1988), 35, 60.
16 The Conceptual Framework

abuse prefer not to be characterized as such.16 The term victim remains a useful one
because it acknowledges the suffering caused by human rights violations and the need to
address it. It also allows inclusion of deceased persons, who clearly are not ‘survivors’ of
human rights violations.
The notion of victim is premised on the understanding that each violation of a
human right causes unique harm requiring individualized remedies as a consequence. It
includes recognizing family members who suffer grief, anguish, fear, and, often, finan-
cial hardship when someone in the family is a direct target of a violation.17 Children
of victims are included because they have been found to suffer ‘sleep disturbances and
nightmares about death, murders, and kidnapping, their parents being the victims,
and soldiers the persecutors and perpetrators’.18 Governmental separation of children
and parents has been found to result in long-term, multigenerational harm.19 The juris-
prudence of human rights bodies gives further guidance on the meaning and scope of
the term victim, as discussed in Chapter 7.

2.2  The Dual Meaning of Remedies

The word ‘remedies’ contains two separate concepts, the first being procedural and
the second substantive. In the first sense, remedies are the processes by which arguable
claims of human rights violations are heard and decided, whether by courts, administra-
tive agencies, or other competent bodies. The second notion of remedies refers to the
outcome of the proceedings, the relief afforded the successful claimant.20
In international and national law, other terms are often used to address the two
aspects of remedies, in part because ‘remedies’ has no exact equivalent in other offi-
cial UN languages. The various terms that are selected may be interpreted differently
by international bodies, national judges, and authors.21 In the law of state responsibil-
ity, ‘reparation’ is most frequently used in the context of inter-state claims. Reparation
generally refers to the various means by which a state may repair the consequences of
a breach of international law for which it is responsible. Reparation may include all of
the acts which also serve to redress individual harm from human rights violations: res-
titution, compensation, satisfaction, and guarantees of non-repetition, although some
authors exclude satisfaction from measures of reparation.22 Reparation is also sometimes
used to refer only to monetary compensation.

16
  The word derives from the Latin word ‘victima’, designating a living sacrifice to the gods. See, gen-
erally, R. Elias, The Politics of Victimization: Victims, Victimology and Human Rights (New York, 1986).
17
  Yael Danieli, International Legacies for Multigenerational Legacies of Trauma (New York, 1998).
18
 Lone Jacobsen & Knud Smidt-Nielsen, Torture Survivors—Trauma and Rehabilitation,
International Rehabilitation Council for Torture Victims (New Delhi, 1997), 76–77.
19
 Aust. Hum. Rts Comm., ‘Chapter  11:  The Effects’, in Bringing Them Home:  Report of the
National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families
(Sydney, 1997).
20
  Remedies are ‘the means by which a right is enforced or the violation of a right is prevented,
redressed or compensated’: Black’s Law Dictionary, (10th edn, n.p. 2014), 1085.
21
  See S. Haasduk, ‘The Lack of Uniformity in the Terminology of the International Law of Remedies’
(1992) 5 Leiden J. Int’l L. 245. Reparations can mean either the act or process of providing a remedy or
the remedy itself. There is a tendency to use ‘reparations’ as the generic term for ‘the various methods
available to a State for discharging or releasing itself ’ from international responsibility: J. de Arechaga,
‘International Responsibility’, in M. Sørenson (ed.), Manual of Public International Law (New York,
1968), 564. See also I. Brownlie, System of the Law of Nations, State Responsibility (Oxford, 1983),
pt. I, 199.
22
  E.g. Bollecker-Stern, supra n. 4 at 10.
 Meanings and Purposes of Remedies 17

Human rights instruments generally refer to the obligation of states to provide effec-
tive remedies for human rights violations. Redress is the term most commonly applied
in the literature and national law to refer to the substantive remedies afforded victims of
violations. In this book, the terms ‘remedies’ and ‘redress’ refer to the range of measures
that may be taken in response to an actual or threatened violation of human rights. They
thus embrace the substance of relief as well as the procedures through which relief may
be obtained. Remedies may include an award of damages, declaratory relief, injunctions
or orders, and attorney’s fees and costs.
Both the right of access to justice and to substantive redress are now widely recognized.
Manfred Nowak comments that ‘the right of victims of (gross) human rights violations
to adequate reparation . . . is already fairly well established under present international
law’.23 Kamminga correctly acknowledges, however, that ‘whether the individual victim
can actually enforce these entitlements is of course an entirely different matter’.24 Not
everyone agrees, however, that substantive redress is a requirement of human rights law.
Tomuschat criticizes the UN Basic Principles for claiming the existence of an individual
right of reparation under international law,25 but the jurisprudence of international tri-
bunals indicates that such a right exists today. As discussed throughout this volume,
human rights tribunals insist on remedies that are real, adequate and effective. It is less
clear that ‘full’ or ‘integral’ reparations are always required.

2.2.1 Access to justice
The obligation to afford remedies for human rights violations requires, in the first place,
the existence of remedial institutions and procedures to which victims may have access.
Refusal of access to the tribunals of a country is considered a primary manifestation of
the concept of denial of justice.26 Most legal systems today recognize the importance of
safeguarding the right of access to independent bodies that can afford a fair hearing to
claimants who assert an arguable claim that their rights have been infringed. Indeed,
many writers include the element of enforceability in their definition of legal rights,27
because the notion of rights entails a correlative duty on the part of others to act or refrain
from acting for the benefit of the rights-holder.28 Unless a duty is somehow enforced, it
risks being seen as a voluntary obligation that can be fulfilled or ignored at will.

23
  M. Nowak, ‘The right of victims of gross human rights violations to reparation’ in Coomans et al.,
(eds.), Rendering Justice to the Vulnerable—Liber amicorum in honour of Theo van Boven (Boston, 2000).
24
  M.T. Kamminga, ‘Legal consequences of an internationally wrongful act of a state against an indi-
vidual’, in T. Barkhuysen, M. van Emmeerik, and P. H. van Kempen (eds.) The Execution of Strasbourg
and General Human Rights Decisions in the National Legal Order (The Hague, 1999), 74.
25
 Christian Tomuschat, ‘Individual Reparation Claims in Instances of Grave Human Rights
Violations: The Position under General International Law’, in A. Randelzhofer and C. Tomuschat (eds.)
State Responsibility and the Individual—Reparation in Instances of Grave Violations of Human Rights (The
Hague, 1999), 173. See also J. Verhoeven and R. Pisillo Mazzeschi D’Argent, ‘Reparation Claims by
Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview’ (2003), 1 J. Int’l
Crim. Justice 338, 347.
26
  In 1758, Vattel wrote that justice may be refused in several ways: (1) by denial of justice or by
refusal to hear the complaints of a state or its subjects or to allow the subjects to assert their rights before
ordinary tribunals; (2) by pretended delays; (3) by a decision manifestly unjust and one-sided. Similar
formulations followed from the Institut de Droit International and the 1930 Hague codification confer-
ence. See infra Chapter 3 at nn. 40–41.
27
  See M. Ginsberg, On Justice in Society (London, 1965), 74; I. Jenkins, Social Order and the Limits
of Law (Princeton, 1980), 247.
28
  W. Hohfeld, Fundamental Legal Conceptions, ed. W. Cook (New Haven, 1919), 38.
18 The Conceptual Framework

The notion of access to justice has undergone expansion with the development of
international criminal law and the recognition by human rights tribunals that certain
violations of human rights should be penalized under national law. This implies access to
procedures that will investigate, prosecute, and punish violators and includes the right of
victims to participate in the investigative process and the criminal proceedings in some
manner.29 Human rights law establishes that states have a duty to the public to prosecute
crimes against individuals’ right to life and personal integrity and to impose penalties
that consider the grave nature of the crimes. There is an increasing move towards includ-
ing victims in criminal proceedings, as seen in the provisions of the Rome Statute of the
International Criminal Court. Prosecution has become an essential component of the
remedy owed victims of certain grave human rights violations. International tribunals
have sometimes declared that other forms of reparations, such as compensation or disci-
plinary sanctions, are insufficient to remedy the harm caused by these violations.
Access to justice implies that the procedures are effective, i.e. capable of redressing
the harm that was inflicted. In a seminal case of constitutional jurisprudence, citing
Blackstone’s Commentaries, the United States Supreme Court declared that ‘[t]‌he very
essence of civil liberty certainly consists in the right of every individual to claim the pro-
tection of the laws, whenever he receives an injury’.30 In 1961, Justice Guha Roy of India
wrote: ‘That a wrong done to an individual must be redressed by the offender himself or
by someone else against whom the sanction of the community may be directed is one of
those timeless axioms of justice without which social life is unthinkable’.31 Chapter 4.1
discusses the international jurisprudence detailing the requisite elements of access to
justice.

2.2.2 Substantive redress
The Oxford English Dictionary defines reparation as ‘the action of restoring something
to a proper or former state’ and adds that it also includes ‘the action of making amends
for a wrong or loss, compensation’.32 It is intended to mend the injury and provide the
basis for ethical relationships among members of society. Reparation is thus the part of
justice that provides redress for the consequences of human rights and humanitarian
law violations.33 It is a legal remedy, which can be claimed, enforced or even waived
by its legitimate holders, those individuals who suffered directly or indirectly from
the wrongful acts committed. Individual reparations as stated by Magarrell ‘[…] are
important because . . . [they] underscore the value of each human being and their place
as rights-holders’.34

29
  Raquel Aldana-Pindell, ‘In Vindication of Justiciable Victims’ Rights to Truth and Justice for
State-Sponsored Crimes’ (2002) 35 Vand. J. Transnat’l L. 1399. On the duty to prosecute, see infra
Chapters 4.4, 10 and 13.3.
30
  Marbury v. Madison, 5 U.S. (1 Cranch) 137.
31
  Justice Roy, ‘Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal
International Law?’ (1961) 55 Am. J. Int’l L. 863.
32
  Oxford English Dictionary (3rd edn, Oxford, 2009).
33
 See the UN Women and UNDP Report ‘Reparations, Development and Gender’ (2010),
http://www.unrol.org/files/Kampala%20workshop%202011-%20Reparations,%20Development%
20and%20Gender.pdf.
34
  See L. Magarrell, International Center for Transitional Justice (2007) ‘Reparations in Theory and
Practice’, http://ictj.org/sites/default/files/ICTJ-Global-Reparations-Practice-2007-English.pdf, last
accessed June 2011.
 Meanings and Purposes of Remedies 19

As the following section discusses, substantive redress can have several aims,
from victim-oriented restitutio in integrum and full compensation for pecuniary and
non-pecuniary losses to deterrence of violations for the benefit of all members of society.
The types of remedies will depend upon the nature of the case, but a growing consensus
on minimum standards includes restitution where possible, compensation where not,
and a right to the truth for the benefit of the injured parties and society as a whole.

2.3  The Purposes of Remedies

2.3.1 Compensatory or remedial justice
The primary function of corrective or remedial justice is to rectify the wrong done to
a victim, that is, to correct injustice.35 As such remedies serve moral goals. Law and its
institutions are the instruments through which fault is determined and its consequences
are assessed in order to redress harm caused.
Aristotle described the conceptual framework for compensatory justice on which
much of the modern law of remedies is based:
What the judge aims at doing is to make the parties equal by the penalty he imposes, whereby he
takes from the aggressor any gain he may have secured. The equal, then, is a mean between the
more and the less. But gain and loss are each of them more or less in opposite ways, more good and
less evil being gain, the more evil and the less good being loss. The equal, which we hold to be just,
is now seen to be intermediate between them. Hence we conclude that corrective justice must be
the mean between loss and gain. This explains why the disputants have recourse to a judge; for to
go to a judge is to do justice . . . What the judge does is to restore equality.36
Remedies aim to place an aggrieved party in the same position as he or she would have
been had no injury occurred. Even rights-violating conduct that causes no compensable
harm or that brings an economic benefit to the victim is cause for complaint because
it creates a moral imbalance between the victim and the wrongdoer and a moral claim
concerning a wrong done.37 In effect, all rights-infringing conduct assaults the dignity
and equality of the victim.
Aristotle’s compensatory justice ideal pertains to acts between individuals, not to
unjust acts committed by ‘society’ against a group or a government against an individual.
Nevertheless, the approach can also provide a basis for public law remedies. Violations
of human rights are wrongs committed against the individual victim and against the
social order, and may be considered particularly serious wrongs because human rights
are ‘maximally weighty moral claims’,38 powerful enough to block utility-maximizing
actions by others. Individuals, being committed to maximizing their own values, have
projects that give directive force—i.e. meaning—to their lives. With each individual
having distinct projects and goals, the potential for conflict is clear, but as one expert has
commented, ‘[a]‌lthough neither you nor I has reason to be impartial between advance-
ment of his own ends and advancement of the other person’s ends, we each have reason

35
  On corrective justice as the basis for tort litigation, see E. Weinrib, ‘Understanding Tort Law’
(1989) 23 Val. U.L. Rev. 485.
36
 Aristotle, Ἡθικὰ Νικομάχεια’, trans. J.A.K. Thompson as The Ethics (London, 1955), 148–9.
37
 Of course, some actions have broader import and may be punished as a crime against the
general order.
38
  L. Lomasky, ‘Compensation and the Bounds of Rights’, in J. Chapman (ed.), Compensatory Justice
(New York, 1991), 13, 24.
20 The Conceptual Framework

to acknowledge the rationality from the perspective of each person of lending special
weight to the values constituted by that individual’s personal projects’.39 Everyone thus
can have a reciprocal reason to value non-interference, and, consequently, accept a moral
order that is characterized by mutual restraint. Non-interference with rights is not only
valuable instrumentally, it is indicative of respect for the inherent dignity of all persons.
Human rights law is based on such a minimal order of forbearance, or moral base-
line, in order to allow personal development through the pursuit of individual goals and
projects. When rights are violated, the ability of the victim to pursue self-determination
is impaired because of an unwarranted act of interference. As the Inter-American Court
indicated in the Loayza Tamayo (Reparations) decision, individuals lack true freedom if
they cannot design life according to their own goals and strive to achieve their desires.40
Life’s options have a very high existential value and their denial or impairment gives rise
to a sense of injustice and demands for rectification or compensation, either restoring
precisely what was lost or something equivalent in value. A morally adequate response
addresses itself in the first instance to restoring the position of the victim. The moral
adequacy of a substitute remedy, usually money, will vary considerably but may allow
the victim to further his or her legitimate projects or goals. In sum, rectification and
compensation within the framework of basic rights serve to restore to individuals, to the
extent possible, their capacity to achieve the ends that they personally value. As such,
compensation may have an important rehabilitative effect, alleviate suffering, and pro-
vide for material needs.41 A climate of impunity, in contrast, can leave serious negative
consequences for individual survivors and ultimately for society as a whole.42

2.3.2 Condemnation or retribution
While justice is primarily about the vindication of the victim and not about the punish-
ment of the perpetrator, the wrongdoer is held responsible for providing a remedy in
order to serve a moral need: on a practical level, collective insurance can as easily make
the victim whole. The wrong is an essential element; it is the rights-infringing wrong-
ful conduct that is the source of a claim. Otherwise a person’s losses due to a falling tree
would be legally equivalent to injury resulting from torture. Compensation restores
the victim’s welfare and affirms his or her rights, but it also enforces the moral and
legal duties owed by the wrongdoer to the victims. Thus, compensation is also about

39
 Ibid, 25.
40
 Inter-American Court of Human Rights Loayza Tamayo v.  Peru (Reparations), judgment of
27 Nov. 1998, (2000), Series C, No. 42, 116 ILR, para. 147. See also the separate opinions of Judges
Cancado Trindade and Abreu Burelli, who emphasize the human needs and aspirations that go beyond
economic worth. They point to affirmation in the Preamble of the American Declaration of the Rights
and Duties of Man that ‘the spiritual development is the supreme end of human existence and the
highest expression thereof ’. In their view, the determination of reparations in human rights law should
take into account the totality of the human person and the impact of human rights violation on the
individual’s life.
41
  Those who work with torture survivors are quick to note, however, that no reparation of any
kind can remove all the harm done. See the studies cited in Redress, Survivors’ Perceptions of Reparation
(London, 2001), 26–9.
42
  ‘Impunity interrupts the normal process of healing of the survivor of repression, the grief of the
families of disappeared victims, and the process of social reparation. Impunity prolongs the psycho-
pathological consequences of repression, both in the individual and in the society’. See R. Gurr and
J. Quiroga, ‘Approaches to Torture Rehabilitation: A Desk Study Covering Effects, Cost-Effectiveness,
Participation, and Sustainability’ (2001) 11 Torture, Supp. No. 1, 3.
 Meanings and Purposes of Remedies 21

retribution, making the wrongdoer pay and deterring further wrongs by forcing the
perpetrator to internalize the costs of their misconduct.43
Remedies express opprobrium to the wrongdoer and to society. This is usually incor-
porated in the application of punishment, sometimes as a vindication of society’s inter-
est in retribution, or it can take the form of fines or exemplary or punitive damages.
Sanctions express the social conviction that disrespect for the rights of others impairs the
wrongdoer’s status as a moral claimant. Remedies and sanctions thus affirm, reinforce,
and reify the fundamental values of society.44 They may also act as ‘potent restraints’ on
any repetition of violations.45
Certain human rights violations are deemed to be so serious that society labels them
criminal. Criminal punishment is seen as optimal because ‘lesser sanctions do not cor-
respond to the severity of gross human rights violations’.46 Punishment of these offences
does not constitute restitution to the victim, who cannot be ‘un-tortured’ but imposes
a penalty on the perpetrator, as well as restraints to avoid a repetition of the offence. It
also places society on the side of the victim in condemning the wrong and honouring the
victim’s moral claims.47
Human rights law, and some theorists,48 posit that victims have ceded to the state
their right to retribution in return for the state’s protection and enforcement of criminal
law. In this construct, the exact role of retribution in the system remains debated, par-
ticularly when the victims seek a role in exacting it. Those emphasizing forgiveness and
reconciliation see the desire for revenge as inappropriate, but survivors of human rights
abuses often experience deep emotions of anger or even hatred, and have a desire to see
the abusers punished, if only to prevent others from suffering as they have. Such emo-
tions can be seen as normal, indicating that victims take their rights seriously. Anger is
an appropriate response to immorality and injustice and represents a normal desire to see
the wrong defeated. Retribution, like restitution, seeks restoration of moral autonomy
between wrongdoer and victim and between wrongdoer and the community.
In sum, the commission of a criminal human rights violation conveys a message
that the victim’s rights are not sufficiently important to refrain from violating them in
pursuit of another goal. Punishment has the expressive function of annulling this mes-
sage. Retribution, like restitution, imposes punishment to negate the wrong and reassert
the right. It thus has both symbolic and norm-creating qualities for both the victim and
larger society, affirming values and establishing structures that create or sustain behav-
iour consistent with those values.49

43
  See ‘Reparations Symposium’, (2004) 84 Boston University Law Review 1456.
44
  Jean Hampton, ‘The Retributive Idea’, in Forgiveness and Mercy, supra n.  15, 111, 122–147
explains retribution as a means of affirming the value of the victim. Moral indignation is a form of
righteous anger directed towards a wrongful act and the immoral values that inspired it; it is therefore
an important means to reaffirm basic values.
45
  W. Soyinka, The Burden of Memory: The Muse of Forgiveness (Oxford, 1999).
46
  Reparations Symposium, supra n. 43 at 1470.
47
  Cf. Allison Marston Danner, ‘Constructing a Hierarchy of Crimes in International Criminal
Law Sentencing’ (2000) 87 Va. L. Rev. 415, 426; Andrew N. Keller, ‘Punishment for Violations of
International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR’ (2001) 12 Ind. In’tl &
Comp. L. Rev. 53, 65. See also George P. Fletcher, ‘The Place of Victims in the Theory of Retribution’
(1999) 3 Buff. Crim. L. Rev. 51, 54 (exploring theory that the purpose of punishment is to defeat the
wrong).
48
  See Aldana-Pindell, supra n. 29 and authors cited therein.
49
  N. Roht-Arriaza, Impunity and Human Rights in International Law and Practice (Oxford, 1995).
22 The Conceptual Framework

2.3.3 General and individual deterrence

Deterrence—which seeks to influence the behaviour of all potential actors, not just the
future conduct of a particular defendant—is assumed to work because rational actors
weigh the anticipated costs of transgressions against the anticipated benefits. Guido
Calebresi distinguishes between general and specific deterrence.50 The former seeks to
measure the costs imposed by an activity without evaluating the moral value of the activ-
ity or the generator of it. It assumes that individuals decide how to behave by calculat-
ing the personal benefits of engaging in activities and balancing them against the costs
that liability (general deterrence) will impose. It contemplates that different actors will
respond to a liability rule in different ways. Specific deterrence, in contrast, evaluates
particular activities, deciding which are wrongful or undesirable. These it prohibits ex
ante and punishes ex post. As the prospect of punishment may affect future conduct, the
question becomes one of how much deterrence is desired. If the ‘price’ of violations is set
high enough, if anticipated damages accurately reflect the true cost of the violations and
the sanction is certain,51 the ‘product’ will be priced off the market. This requires full and
accurate compensation for each victim of each incident.
Like remedies in private law cases, human rights remedies must aim to deter wrongful
behaviour.52 Prevention of violations is a major focus of all human rights institutions.
To achieve this, it may be necessary to augment the level of the remedy when there is
corporate or institutional rather than individual responsibility. The level of award that
would serve to deter an individual is unlikely to be adequate when the state is the defend-
ant, because any compensation awarded will be paid from the public treasury which has
resources far beyond those of individual wrongdoers.
Not only the level of the award, but the nature of the remedy must be such that state
actors are deterred and not permitted to purchase an option to continue violating human
rights. The theory of reintegrative shaming, for example, posits that properly designed
expressions of community disapproval can reduce illegal behaviour.53 Community dis-
approval of the acts can be powerful when offenders are shamed and then reintegrated
into the community, through the provision of redress to the victims.

2.3.4 Restorative or transitional justice

The restorative justice movement originated in innovative crime prevention techniques
designed to find alternatives to punishment, recidivism, and lack of attention to the
needs of victims.54 Research suggesting that such programs actually reduce crime55 led

50
  G. Calabresi and A. D. Melamed, ‘Property Rules, Liability Rules and Inalienability: One View of
the Cathedral’ (1972) 85 Harv. L. Rev. 1089–1128.
51
  Deterrence literature shows a correlation between the certainty of consequences and the reduction
of offences, and less correlation between the severity of punishment and reduced incidence of wrongdo-
ing. Nigel Biggar (ed.), Burying the Past: Making Peace and Doing Justice after Civil Conflict (Washington,
DC, 2003) 69.
52
  C. Gregory, H. Kalven, and R. Epstein, Cases and Materials on Torts, (3rd edn, Brooklyn, 1977),
xxii–xxiii; R. Posner, Economic Analysis of Law, 2nd edn. (Boston, 1977), s. 6.16, 154–7.
53
  John Braithwaite, Crime, Shame and Reintegration (Cambridge, 1989).
54
  See Heather Strang, ‘The Crime Victim Movement as a Force in Civil Society’, in H. Strang and
J. Braithwaite (eds.), Restorative Justice and Civil Society (Cambridge, 2003) [hereinafter Strang and
Braithwaite].
55
  L. Forsythe, ‘An Analysis of Juvenile Apprehension Characteristics and Reapprehension Rates’, in
D. Moore et al. (eds.), A New Approach to Juvenile Justice (n.p. 1995); Wai Yin Chan, ‘Family Conferences
in the Juvenile Justice Process’ in Subordinate Courts Statistics and Planning Unit Research Bulletin
 Meanings and Purposes of Remedies 23

to interest in the application of restorative justice concepts to dealing with human rights
violations.
Like compensatory justice, restorative justice seeks to repair the harm caused by the
commission of a wrong,56 but restorative justice embraces a broader notion of the harm
that needs to be repaired by addressing the larger community. Restorative justice ‘can be
traced to many religious and spiritual traditions and to aboriginal practices and customs
around the globe’57 which focus less on the outcome of redress claims than on ‘[a]‌process
whereby all the parties with a stake in a particular offense come together to resolve collec-
tively how to deal with the aftermath of the offense and its implications for the future’.58
In this way, restorative justice puts its focus not only on the needs of the victim, but also
on those of the offender and the community.59
To be effective, restorative justice needs to remain victim-centred and the victim
should decide the contours of justice.60 Truth commissions and trials can be forms of
reparations61 if done right, which necessarily involves consulting victims62 as stakehold-
ers throughout the ongoing process.63 Substantive restorative justice has a focus on
redress of victims and reintegrating offenders,64 associated with atonement, reconcili-
ation, forgiveness, and reintegration. Apologies and expressions of remorse are seen as
especially important to this process.
Restorative justice has emerged in human rights law in the context of widespread
human rights violations, where it is seen to have value in taking into consideration
the larger societal interest in healing and stability.65 Widespread and serious violations
leave political, psychological, and sociological impacts on society as a whole and social
reparation may be needed in addition to measures to avoid impunity.66 In this context,

(n.p. 1996); John Braithwaite, ‘Restorative Justice: Assessing Optimistic and Pessimistic Accounts’, in
M. Tonry (ed.), Crime and Justice, A Review of Research (Chicago, 1999), 25, 27–35; G. Burford and
J. Pennell, Family Group Decision-Making Project, Outcome Report, I, (Newfoundland, 1998); L.
Sherman et  al., Experiments in Restorative Policing:  A  Progress Report on the Canberra Reintegrative
Shaming Experiments (1998); L. Sherman et  al., Recidivism Patterns in the Canberra Reintegrative
Shaming Experiments (Canberra, 2000).
56
  Heather Strang & Lawrence W. Sherman, ‘Repairing the Harm: Victims and Restorative Justice’
(2003) 15 Utah L. Rev. 15 [hereinafter, Strang & Sherman]. For a pioneering work on restorative justice,
see Howard J. Zehr, Changing Lenses: A New Focus for Crime and Justice 27 (Scottsdale, 2005).
57
  Sarah Eschholz, ‘Restorative Justice: Social Movement, Theory, and Practice’ (2003) 28 Crim.
Just. Rev. 147.
58
  Tony F. Marshall, Restorative Justice: An Overview (London, 1999) 5.
59
 Chris Cunneen, ‘Exploring the Relationship Between Reparations, the Gross Violation of
Human Rights, and Restorative Justice’ in Dennis Sullivan & Larry Tifft (eds.) Handbook of Restorative
Justice: A Global Perspective (London, 2006).
60
  For a discussion of how international tribunals are trying to bring a victim focus to their adjudica-
tions, see Thomas M. Antkowiak, ‘An Emerging Mandate for International Courts: Victim-Centered
Remedies and Restorative Justice’ (2011) 47 Stan. J. Int’l L. 279.
61
 Tristan Anne Borer, Telling The Truths (Notre Dame, 2006); Christopher Kutz, ‘Justice in
Reparations: The Cost of Memory and the Value of Talk’ (2004) 32 Phil. & Pub. Aff. 277, 312.
62
  John Braithwaite, Restorative Justice & Responsive Regulation (Oxford 2002) 11. See also Ellen
Waldman, ‘Restorative Justice and the Pre-Conditions for Grace: Taking Victim’s Needs Seriously’
(2007) 9 Cardozo J. Conflict Resol. 91.
63
  Raymond Koen, ‘The Antinomies of Restorative Justice, Restorative Justice: Politics, Policies and
Prospects’ (2007) Acta Juridica 247, 254.
64
  Strang and Braithwaite, supra n. 54 at 1.
65
  Report of the Secretary-General to the Security Council, ‘The Rule of Law and Transitional Justice
in Conflict and Post-Conflict Societies’ (12 October 2011) S/2011/634, at para. 26.
66
  I. Agger and S.B. Jensen, Trauma and Healing Under State Terrorism (London, 1996); N. Sveass
and N.J. Lavik, ‘Psychological Aspects of Human Rights Violations: The Importance of Justice and
Reconciliation’ (2000) 69 Nordic J. Int’l L. 35.
24 The Conceptual Framework

proponents see a potential use of restorative justice at the community level, where a
restoration process can help identify the origins of past conflicts and seek ideas and pro-
grams to overcome past atrocities. The ever-present risk is that the community majority
may deny rights and remedies to those in the minority in order to achieve a theoretical
reconciliation.
The main argument presented for restorative justice is that the severe impact of wide-
spread gross violations of human rights law and humanitarian law leaves the aims of
compensatory justice almost impossible to fulfil. Naomi Roht-Arrianza refers to this as
the ‘basic paradox at the heart of reparation’, that is, the disconnect that exists between
a promised return to the status quo ante and the knowledge that such a status cannot be
achieved.67 Some observers argue that a focus on ‘restorative justice’ (e.g. social healing,
economic repairs, institution building) can provide adequate long-term solutions after
massive violations. The emphasis is placed on participation (procedural justice) even if
(or because) substantive individualized justice is lacking. This should suggest restorative
justice is an appropriate approach only in situations of gross and systematic violations,
where individualized redress is not possible because conflicts and repression have under-
mined or destroyed the rule of law and functioning institutions.
To apply the theory of restorative justice in the aftermath of widespread gross viola-
tions, programs of ‘transitional justice’ have become popular. These programs encom-
pass a range of mechanisms that aim to come to terms with a legacy of large-scale abuses
through ensuring accountability and achieving reconciliation.68 Frank Haldnmann
describes it as justice caught between the past and the future, between looking backward
and looking forward.69 Not everyone agrees with this approach. Eric A. Posner and
Adrian Vermeule have argued that transitional justice does not raise different issues from
‘ordinary’ justice; that liberal democracies regularly manage change, even radical change,
during their ‘ordinary’ lives, and the issues that they confront in managing this change
are not different in kind to those of transitional justice.70
One difficulty is that the ‘between’ is often framed in the alternative: retributive and
compensatory justice (the past) or restorative justice (the future). Restorative justice,
with its focus on reconciliation and social harmony, was exemplified by South Africa’s
Truth and Reconciliation Commission (TRC) with the power to grant amnesty to perpe-
trators who fully disclosed their acts and the fate of those who they killed or abducted.71
There was obvious initial relief that the process largely avoided social violence, but the
lack of remedies for victims and the grant of amnesties has produced some long-term

67
  N. Roht-Arriaza, ‘Reparations in the Aftermath of Repression and Mass Violence’, in E. Stover
and H. M. Weinstein (eds.), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass
Atrocity (Cambridge, 2004), 122.
68
  Among the vast literature on transitional justice, see e.g., Neil J. Kritz (ed.), Transitional Justice: How
Emerging Democracies Reckon with Former Regimes (Washington, DC, 1995); A. James McAdams (ed.)
Transitional Justice and the Rule of Law in New Democracies (Notre Dame, 1997); Carol A.L. Prager
& Trudy Govier (eds.) Dilemmas of Reconciliation: Cases and Concepts (Waterloo, 2003); Jon Elster,
Closing the Books: Transitional Justice in Historical Perspective (Cambridge, 2004); Rama Mani, Beyond
Retribution: Seeking Justice in the Shadow of War (Cambridge, 2002); Martha Minow, Between Vengeance
and Forgiveness: Facing History After Genocide and Mass Violence (Princeton, 1998); Steven R. Ratner &
Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg
Legacy (2nd edn, Oxford, 2001); Ruti G. Teitel, Transitional Justice (Oxford, 2000); Robert I. Rotberg
& Dennis Thompson (eds.) Truth v. Justice: The Morality of Truth Commissions (Princeton, 2000).
69
  Frank Haldnmann, supra n. 5 at 675.
70
  Eric A. Posner & Adrian Vermeule, ‘Transitional Justice as Ordinary Justice’, (2004) 117 Harv.
L. Rev. 761, 783–792 (2004).
71
  See Robert I. Rotberg, ‘Truth Commissions and the Provision of Truth, Justice, and Reconciliation’,
in Truth v. Justice: The Morality of Truth Commissions, supra n. 68 at 1, 6.
 Meanings and Purposes of Remedies 25

resentment and conflict,72 as the process appeared to sacrifice the victims’ suffering for
the sake of reconciliation.73 The victims of violation cannot be ignored, even with the
aim of reconciliation: ‘if justice is not addressed, it will be difficult to consolidate peace,
as the process will lack credibility and popular trust; if injustice continues to prevail, it
may re-ignite conflict, as unmet grievances continue to fester’.74
Former UN Secretary-General Kofi Annan issued a report to the Security Council on
transitional justice75 and a subsequent note in which he advised that those administer-
ing transitional justice projects must resort to ‘the full range of processes and mecha-
nisms associated with a society’s attempts to come to terms with a legacy of large-scale
past abuses, in order to ensure accountability, serve justice and achieve reconciliation’.76
Much of his focus and that of other observers has been on violations that occur in the
context of armed conflict, reflecting the fact in the last half century most conflicts
have been internal armed struggles in which as many as 90 per cent of the fatalities are
non-combatant civilians, that is, victims of human rights and humanitarian law viola-
tions. The breakdown of the rule of law and institutions forecloses the possibility of
quick redress, despite the needs of the survivors.77
In such a context, social discourse that can produce a common narrative of the past
and present causes and consequences of human rights violations may be constructed
through participatory programs, such as truth commissions or prosecutions.78 This may
be particularly important when societies are divided by ideology or by ethnicity, reli-
gion, language or race. The dominant majority may prefer amnesty, but prosecutions,
truth commissions and commissions of inquiry can produce recognition and acknowl-
edgment of past injustices, through a participatory process, with full disclosure and
consequences.79
In addition to constructing a common understanding of events, proponents see
transitional justice as contributing to social healing by enabling the reintegration and
rehabilitation of the victims.80 Those who have suffered governmental abuse are often
mistrusted or avoided because of their experiences. Bystanders’ guilt may also lead to
rejecting the victims. Even when victims are not overtly avoided or shunned, they may
encounter indifference and silence. Rehabilitation and reintegration is crucial. The

72
  Sam Garkawe, ‘The South African Truth and Reconciliation Commission:  A  Suitable Model
to Enhance the Role and Rights of the Victims of Gross Violations of Human Rights?’ (2003) 27
Melb. U. L. Rev. 334, 353; Raquel Aldana, ‘A Victim-Centered Reflection on Truth Commissions and
Prosecutions as a Response to Mass Atrocities’ (2006) 5 J. Hum. Rts 107, 108.
73
  As Raquel Aldana remarks, the trade of truth for amnesty is likely to undermine ‘the condemna-
tory message that states must send to perpetrators and the public about the nature of the crimes, thereby
disparaging the victims’ plight’. Ibid at 108. See also Haldnmann supra n. 5 at 714.
74
  Rama Mani, ‘Restoring Justice in the Aftermath of Conflict: Bridging the Gap between Theory
and Practice’, in Tony Coates (ed.), International Justice (Aldershot, 2000), 264.
75
 Report of the Secretary-General, ‘The Rule of Law and Transitional Justice in Conflict and
Post-Conflict Societies’ (2004) UN Doc. S/2004/616.
76
 Guidance Note of the Secretary-General, ‘United Nations Approach to Transitional Justice’
(2010), §8.
77
  See Jamal Benomar, ‘Justice after Transitions’, in Kritz, supra n. 68.
78
  Erin Daly, ‘Reparations in South Africa: A Cautionary Tale’ (2003) 33 U. Mem. L. Rev. 367, 403,
citing the Canadian Royal Commission on Aboriginal Peoples. Others criticize the fact that such reports
may move the majority to reconsider past actions, but fall far short of reparations for those harmed.
79
  Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge, 2001).
80
  On the psychological impact of human rights violations, see Y. Danieli in Seminar on the Right
to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and
Fundamental Freedoms (SIM Special Pub. No. 12), at 196; Y. Danieli, ‘On the Achievement of Integration
in Aging Survivors of the Nazi Holocaust’ (1981) 14 J. of Geriatric Psychiatry 191; E. Nicoletti & R.C.
Bozzolo, Psychological Effects of Political Repression, trans. Diana R. Kordon, et al. (Buenos Aires, 1988).
26 The Conceptual Framework

Latin American Institute of Mental Health and Human Rights emphasizes that indi-
vidual therapy is not enough, that victims ‘need to know that their society as a whole
acknowledges what has happened to them . . . Social reparation is thus . . . simultaneously
a socio-political and a psychological process. It aims to establish the truth of political
repression and demands justice for the victims . . . both through the judicial process and
through the availability of health and mental health services’.81
Compensation and other forms of remedy are important to this goal, including
symbolic reparations through rituals and commemorations of the victims. Transitional
justice may facilitate this and allow the introduction of collective forms of reparations,
including health and education programs funded by the state to rebuild lives and com-
munities. Transitional justice proponents claim that it is the best model to redress
pre-existing inequalities and injustices, for example, with respect to issues of gendered
violence,82 where programs can focus on distributive justice.83 In practice, however, these
goals are often subordinated to other policies, such as general economic development.
Importantly, restorative or transitional justice can emphasize that gross and sys-
tematic violations, such as massacres and genocide, are often rooted in the policies or
ideology of the government and therefore involve widespread participation. A purely
individual-based approach to prosecution or redress will not normally reveal the web of
societal interactions and institutions responsible for widespread collective violence. The
fact that systematic violations collectively express society’s devaluing of some of its mem-
bers or groups84 means that a new democratic regime acting to repair the injuries of the
past needs to acknowledge the wrong, including through symbolic and compensatory
measures, in order to express its and society’s commitment to fully integrate into society
those persons previously abused or oppressed.
Critics claim that the practical effect of implementing most transitional justice pro-
grams has been to subordinate the individual victims to the desire of the majority to
ignore the past. Most reparations programs have not been satisfactory from the perspec-
tive of victims and some have been accused of re-victimizing the survivors. Administrative
reparations programs, for example, often lack modes of equitable distribution and fail
to reach those most in need.85 Attempts to achieve reconciliation and forgiveness seem
to be based on an unquestioned but questionable premise that victims, like society as a
whole, prefer to move forward. Victims desire to hear the truth and participate in telling
it. They also deserve and should be awarded meaningful individualized redress,86 even
when lump sum awards or access to services are the preferred mode of reparation.87
In periods of transition many members of society may seek to turn away from the
past and move on, especially those members who benefitted from or were bystanders to

81
  D. Becker, E. Lira, M.I. Castillo, E. Gomez, and J. Kovalskys, ‘Therapy with Victims of Political
Repression in Chile: The Challenge of Social Reparation’ (1990) 40 J. of Social Issues 133, 147–8.
82
  See Anne Saris and Katherine Lofts, ‘Reparations Programs: A Gendered Perspective’ in Carla
Ferstman et al. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity: Systems
in Place and systems in the Making, (Leiden, 2009) [hereinafter Ferstman], 80.
83
  See Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation (2007), calling
for holistic, specialized, integrated, and multidisciplinary approaches to remedies that include: mental
and physical health services; compensation, rehabilitation and restitution; justice initiatives including
guarantees of non-repetition; symbolic programs including apologies; truth telling, recognition and
acknowledgement of suffering; educational programs; reform of discriminatory laws and customs.
84
 Haldnmann, supra n. 5 at 715–716. 85
 Ibid, 1069.
86
 M. McGuire, ‘Victims’ Needs and Victim Services:  Indications from Research’ (1985) 10
Victimology: An Int’l J. 539.
87
  See generally, Ferstman, supra n. 82.
 Meanings and Purposes of Remedies 27

the abuses. This willingness to ignore past wrongs exacerbates the victims’ trauma88 as it
reinforces the sense that people condone the wrongs and do not care about the victims.89
Overlooking the individual victims represents a failure to acknowledge the severe vio-
lence and persecution they suffered and their unhealed wounds, and in effect constitutes
a type of re-victimization. The communicative process of revealing the truth, on the
other hand, conveys a moral message validating the worth of the victims of wrongdoing.
Establishing a public record of what occurred, and why, serves to make the many private
experiences of injustice ‘part of the public cognitive scene’.90
Beyond revealing the truth and acknowledging the wrongs done, societies that
have endured massive violations need to make amends and restore victims of the
wrongdoing.91 Reparations express a clear public recognition that injustice occurred.92
The aim of pecuniary compensation, then, is not only to pay victims for financial or
material losses, but also to provide symbolic expression of guilt and regret and to offer
an apology to those who suffered the injustice. Compensation without acknowledg-
ment of wrongdoing fails to address the moral indignation arising when one’s rights are
violated.93 As Martha Minow notes, ‘no market measures exist for the value of living an
ordinary life, without nightmares or survivor guilt’.94 Official recognition through pub-
lic statements, remembrance days, and other memorials may help to build confidence in
governing institutions among members of society.

2.4  Economic Analysis of Remedies

The impact of ‘law and economics’ theories has been considerable in western legal sys-
tems, from the common law systems of the USA, England, and Canada to civil law
jurisdictions including Germany, the Netherlands, and Italy.95 The creation of a Latin
American Association of Law and Economics indicates the spread of the approach,96
which uses economic models as theoretical constructs for analysing the laws and legal
doctrines of society.97 Although not universally accepted in all areas of the law, neoclassi-
cal economic theories provide a widely used alternative approach to assessing the nature
and purpose of remedies.

88
 See Martha Minow, ‘The Hope for Healing:  What Can Truth Commissions Do?’ in Truth
v. Justice: The Morality of Truth Commissions, supra n. 68 at 235, 242.
89
 See Trudy Govier, ‘What is Acknowledgment and Why is it Important?’, in Dilemmas of
Reconciliation: Cases and Concepts (Waterloo, 2003), 85.
90
  Lawrence Weschler, A Miracle, a Universe: Settling Accounts with Torturers (Chicago, 1990), 4
(quoting Thomas Nagel).
91
  See generally Roy L. Brooks ,‘The Age of Apology’ in Roy L. Brooks, When Sorry Isn’t Enough: The
Controversy Over Apologies and Reparations for Human Injustice (New York, 1999), 3–12.
92
  Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (Princeton, 1970), 76
(‘Reparation can express sympathy, benevolence, and concern, but, in addition, it is always the acknowl-
edgment of past wrong, a “repayment of debt,” and hence, like an apology, the redressing of moral bal-
ance or the restoring of the status quo ante culpum’).
93
  See John Torpey, ‘Introduction’, in John Torpey (ed.), Politics and the Past (Lanham, 2003), 22–23.
94
 Minow, supra n. 68 at 104.
95
  Although traditionally distinct, the common law and civil law have seen convergence and trans-
plants. The growth of European law may hasten this phenomenon. Thus, ‘western legal system’ is more
recently used by comparative law scholars. B.S. Markesinis, A Comparative Introduction to the German
Law of Torts, (3rd edn, Oxford, 1994), 1.1.
96
  In Mexico and some other Latin American countries, the legal tradition is civil law in the private
sphere, while public law doctrines have been influenced by United States common law.
97
  Robin Paul Malloy, Law and Economics: A Comparative Approach to Theory and Practice (Minnesota,
1990), 3.
28 The Conceptual Framework

Law and economics theory holds that the law should always be efficient. Economists
have contributed to understanding the preventive and regulatory functions of liability,
which may be as important to society as compensation is to the victim.98 An activity that
is profitable even after payment of all the costs it imposes on others is said to be efficient
or economical. Therefore, unlike the corrective justice model, which primarily deter-
mines the consequences of a wrongful act, economic theory is said to help to define the
substance of what constitutes the wrong.99 The economic reasoning behind the theory is
based on at least three fundamental assumptions: (1) that conditions of scarcity preclude
the fulfilment of every human desire; (2) that in a condition of scarcity most individuals
behave rationally most of the time to maximize the achievement of their various goals
and desires; (3) that individuals are the best, even the only, judges of their own prefer-
ences, acting in their own self interest. These assumptions, together with an assumption
of negligible transaction costs, lead economic analysts to conclude that individuals tend
to bargain efficient results between themselves. As a result, a cost-benefit analysis can
be used to predict whether a change in the law will lead to the desired response in those
subject to it. An increase in costs will discourage behaviour that is undesirable.
The deterrence rationale seems inherent in the market model and its cost-benefit
analysis: damages are warranted as long as the cost to society of paying them will deter
possible wrongdoers from imposing greater costs in the future. In this framework, com-
pensatory damages, like criminal penalties, compel law violators to take account of the
harm they inflict.100 The amount of damages need not be compensatory in fact, if that
term denotes some direct relationship between the damages paid and the victim’s loss
and its magnitude. Instead, damages are set at the appropriate level to deter the miscon-
duct, a level that may be higher or lower than the actual losses of the victim. In most
cases, however, economic analysis equates the value of damages with the value of harm.
If deterrence is the basis of an award of damages, an accurate assessment of the
amounts due is important in inducing wrongdoers to exercise levels of precaution that
reflect the magnitude of the harm they may generate. Damage liability that is less than
the harm inflicted may encourage potential defendants to violate the law, assuming the
law itself has insufficient ‘compliance pull’. On the other hand, damage liability in excess
of the harm inflicted will cause potential defendants to obey the law when it is ineffi-
cient to do so. A further factor also must be considered: not every wrongdoer expects to
be caught and held liable for every incident. According to economic analysis, to make
liability an effective market deterrent, it is necessary to inflate compensatory damages
to correct the expectation of wrongdoers that they might escape from paying the full
costs in every case. The proper deterrence measure thus may exceed the compensatory
measure. In any event, a proper measure of one is not necessarily a proper measure for
the other. Accuracy in damage awards alters the level of precautions based on the amount
of the potential damage award.101
Economic analysis in general is open to criticism for its lack of a moral dimension,
treating human rights as merely another form of social bargaining and trade. Social

98
  See J.P. Brown, ‘Towards an Economic Theory of Liability’ (1973) 2 J. Leg. St. 323.
99
  See R. Posner, ‘The Concept of Corrective Justice in Recent Theories of Tort Law’ (1981) 10
J. Leg. St. 187, 193 (‘the Aristotelian concept of corrective justice does not tell us who is a wrongdoer or
who has vested rights; all it tells us is that a wrongful injury is not excused by the moral superiority of
the injurer to the victim’).
100
 Ibid, 194.
101
  See L. Kaplow and S. Shavell, ‘Accuracy in the Assessment of Damages’ (1996) 39 J. Law &
Econ. 191.
 Meanings and Purposes of Remedies 29

utility, its sole normative foundation, is insufficiently justificatory and thus open to seri-
ous question. As Robin Malloy observes:
[B]‌y use of neoclassical economics, the conservatives reduce rights and obligations to numerical
calculations and then proceed to balance countervailing claims by means of scientific equations.
It is argued that an efficient result will maximize wealth and that wealth maximization produces
the best attainable social arrangement. With the conservative vision of law and economics there
is, therefore, no concept of inherent rights of the individual merely as a result of being a human
being.102
Thus, slavery could be deemed permissible if efficient103 and racial minorities treated
as a neighbourhood ‘nuisance’ because of their depressive effect on land values. Judge
Posner writes:  ‘In these circumstances some form of segregation would be wealth
maximizing’.104 In other words, in neoclassical economic analysis, injuries to life and
health are ‘costs’, as are sums expended to prevent wrongdoing, against which they are
balanced, and its reasoning seeks to maximize the value of conflicting activities, calling
on society to choose or allow the most ‘efficient’ behaviour. Critics point out that, in
legal traditions where the notion of obligation is stronger than the notion of right (e.g.
China), bargaining in self-interest may not be a correct assumption, undermining the
economic construct.
The neoclassical economic approach seems destined to allow wrongdoers to continue
their harmful acts as long as they pay for the damage they cause; injuries are commen-
surable with money, a cost to the victim. Such a ‘commodification’ seems inappropriate
for human rights discourse and practice because rights violations are often incommen-
surable. Compensation can only provide something equivalent in value to that which
is lost; rectification or restitution restores precisely that which is taken. If what is taken
from the victim is a chosen, specific pursuit, then having money to pursue another aim
is not the same. Where the choices and values are incommensurable, a loss is sustained
for which full compensation is impossible. Money does not replace a lost loved one and
‘most people would not exchange their lives for anything less than an infinite sum of
money if the exchange were to take place immediately’.105 Posner’s answer is that courts
cannot pay infinite awards and must award ‘reasonable’ compensation, ignoring the
value of the deceased’s life to herself or himself. This exchange, of rights violation for
money, may be seen as conflicting with the notion of ‘inalienable’ rights, but cannot be
avoided when the loss has occurred and is irreparable. Yet, as Mark Yudoff has observed,
‘society’s interest in human dignity is so great that the recovery may exceed any plausible
estimate of economic injury’.106 Non-monetary remedies thus should be devised that
encourage persons to bring suit to deter violations. This requires restitution where pos-
sible and defraying the costs of litigation, in addition to compensating for actual harm.
Economic analysis need not be viewed as inescapably in conflict with remedial jus-
tice and the moral basis for remedies. Indeed, Posner argues that the Aristotelian con-
cept of corrective justice is compatible with, even required by, economic theory.107 Both
approaches provide a theoretical foundation for why damages must be afforded the indi-
vidual victim. Compensatory justice further indicates the minimum that must be done
to restore the moral order, while economic analysis provides a basis for evaluating the

102
 Malloy, supra n. 97 at 60–1.
103
  R. Posner, The Economics of Justice (Cambridge, 1983), 86, 102. 104
 Ibid, 84–5.
105
  E. Posner, Economic Analysis of the Law (2d edn, (1977) s. 6.12, 197.
106
  M. Yudof, ‘Liability for Constitutional Torts and the Risk-Averse Public School Official’ (1976)
49 S. Cal. L. Rev. 1322, 1379–80.
107
 Posner, supra n. 99 at 188.
30 The Conceptual Framework

upper range of remedies, how remedies should be determined in order to protect the
societal as well as the individual interest. The economic approach considers the impact
of violations on society as a whole, aiming to deter violations through the adjustment of
damage awards. In the human rights context, such an approach can help in calculating
the amounts needed to uphold a treaty regime by adequately deterring state miscon-
duct. It suggests that international tribunals may need to consider awarding far higher
amounts of damages than have heretofore been adjudged.
Economic analysis and market theories have another impact on remedies, in cases
where the victim has suffered economic losses only. Unlike physical injury, takings or
other economic losses are not always deemed unfair and deserving of remedial justice.
Indeed, ‘the philosophy of the market place presumes that it is lawful to gain profit by
causing others economic loss’.108
Opponents of economic redress see it as having adverse side effects on market compe-
tition and wasting economic resources in a non-efficient allocation of losses.109 It is also
widely accepted that the state may set its economic policies and make choices without
liability to those who may suffer injury as a consequence. Such individual losses are
viewed as an ordinary risk of economic activity. Furthermore, it is often possible for an
individual to contract for protection against economic injury through insurance. Yet,
individuals can also obtain health insurance against personal injury and life insurance
in case of death and this fact does not undercut claims for attacks on physical integrity.
It seems to be the nature of the loss and a predilection for market-based economic
efficiency that pose problems. Morally there seems little distinction between state mis-
conduct that harms an individual physically and that which deprives the individual of
a livelihood.110 ‘In modern social and economic conditions, certain economic interests
can be seen as emerging, alongside interests in personal safety, freedom, respect and
property, as primary goods’,111 deserving of protection. Thus, German law, for example,
imposes liability on public officials and the government for breach of an official duty to
safeguard general economic interests.112

2.5 Conclusions
The remedial task is to convert law into results, to deter violations and restore the moral
balance when wrongs are committed. The human rights litigant typically seeks to have
government conduct declared wrongful and to have a remedy imposed against the state,
even where the act or omission is based on the will of the majority expressed in legisla-
tion. In the range of remedies, relatively non-intrusive ones, such as declaratory judg-
ments and damages, may give way to injunctions, prohibitions, and affirmative orders.

108
  Goff, L.J., The Aliakmon (1985) 2 All ER 44, 73 (CA), quoted in Efstathios Banakas, Civil
Liability for Pure Economic Loss (The Hague, 1996), 2.
109
 Ibid, 8.
110
  In the private sector, even negligent conduct can sometimes be the basis of recovery for economic
loss. See Spring v. Guardian Assurance plc [1994] 3 All ER 129, in which the House of Lords allowed the
plaintiff’s claim to go forward to recover from a former employer who negligently wrote an inaccurate
letter of reference. The danger of serious and irreparable harm to the individual’s future prosperity and
happiness were deemed to outweigh the interests of the employer and the imposition of liability was
thus seen as fair and justified.
111
 Banakas, supra n. 108 at 22.
112
  Erwin Deutsch and Tony Weir, ‘Pure Economic Loss in German Law’, in Banakas, supra n. 108 at
82. According to BGB, § 839 combined with Basic Law, art. 34, compensation is due for all harm that
the state’s breached obligation was designed to prevent.
 Meanings and Purposes of Remedies 31

The declaratory judgment merely pronounces a particular practice or condition to be

illegal, leaving officials free to choose if and how to remedy the situation. A damage
award assesses the harm that the misconduct has caused and imposes the cost upon the
wrongdoer. All relief seeks to create a hypothetical: the situation ‘as if ’ the wrongdoer
had not violated the rights of the victim.
As compensation is the most common remedy, every legal system should strive
for certainty in calculating damages to avoid under- or over-compensating a victim.
Uncertainty and arbitrariness in awards undermines respect for the law; legal certainty
represents one of modern jurisprudence’s central concerns as the law searches for order
and predictability. The rule of law implies that society administers justice by fixing stand-
ards that individuals may determine prior to controversy and that reasonably guarantee
all individuals like treatment. Accurate assessment also is necessary because inadequate
or excessive awards frustrate the compensatory, retributive, and deterrent functions of
the law.
The prevalence of compensation as a remedy should not diminish consideration
of the need for other kinds of redress. When rights are infringed, someone has been
victimized because of an unwarranted act of interference and can therefore justifiably
reclaim his or her prior position. This focus on the victim demands provision of some-
thing equivalent in value to that which was lost, or restoring precisely that which was
removed. The primary goal of human rights remedies should be rectification or restitu-
tion rather than compensation. When rights are violated, the ability of the victim to
pursue self-determination is impaired and it is not justifiable generally to assume that
compensation restores the moral balance ex ante. A morally adequate response addresses
itself in the first instance to restoring what was taken.
The Latin maxim ubi jus ibi remedium (for the violation of every right, there must be
a remedy) is not, and perhaps cannot be, strictly observed in practice. Rights have gone
unremedied in the past, and some will go unremedied in the future. Yet, remedies such as
injunctions, which national judicial bodies were once reluctant to impose because they
were perceived to exceed the judicial power or believed to be simply unenforceable, are
now taken for granted.
The theories of remedies just discussed have been applied by national and interna-
tional courts throughout the world. The range of remedies the courts afford indicates
a general concern for compensation, rehabilitation, deterrence, and punishment. The
surveys of national and international decisions that follow show how these theories are
put into practice.
 3
Sources and General Content of
the Law of Remedies

Several overlapping bodies of international law have contributed to the development of

current norms governing access to justice and redress for human rights violations. The
present chapter examines each of these sources of law in turn in order to identify relevant
principles and precedents. The chapter begins with general international law, consid-
ering first state responsibility, then turning to the question of whether international
organizations and business entities have international human rights obligations and thus
a duty to provide remedies for their injurious acts. The remainder of the chapter reviews
the remedial provisions of human rights instruments as well as those of international
humanitarian law and international criminal law. The jurisprudence of international
tribunals applying and developing the international law detailed herein is discussed
throughout the remaining chapters.

3.1  General International Law

The law of state responsibility governs the consequences of a breach of international law.
This body of law, particularly the extensive jurisprudence on injury to aliens, contains
useful precedents for evaluating the nature and scope of remedies afforded in state prac-
tice. The law of state responsibility is undoubtedly applicable to a state’s breach of an
international human rights obligation contained in a treaty or customary international
law, although in practice there are significant differences from classic interstate cases, as
discussed in Section 3.2.1.

3.1.1 State responsibility
The law of state responsibility requires a state to make reparations when it fails to comply,
through an act or omission attributable to it, with an international legal obligation.1
Encompassed in this straightforward statement are many issues, including the nature
and range of attributable acts giving rise to responsibility, the standard of care owed,
and the nature and scope of reparations.2 Sometimes writers use the term ‘reparations’
narrowly in the sense of money damages; more generally, it refers to the entire range of

1
  See ILC ‘Articles on Responsibility of States for Internationally Wrongful Acts’ [hereinafter ILC
Articles] in ‘Report of the International Law Commission on the Work of its 53rd Session’ (2001) UN
Doc. A/56/10 available at http://www.un.org/law/ilc.
2
  The first rapporteur for the International Law Commission posited that the lack of uniformity on
issues of state responsibility ‘is quite often attributable to differences of opinion concerning substance’
which leads to ‘individual, and at times capricious’ interpretation of the issues: F.V. Garcia-Amador,
Responsibility of the State for Injuries Caused in its Territory to the Person or Property of Aliens—Reparation
of the Injury, UN Doc. A/CN.4/134/Add.1, 1961-II Y.B. Int’l L.Comm’n 7.
 Sources and General Content of the Law of Remedies 33

remedies available for a breach of an international obligation.3 Although the losses of

injured individuals may form one measure of damages, the injuries for which repara-
tions are due are those suffered by the state of nationality.4 The claim may be based on
presumed injury deriving, for example, from a failure to permit the exercise of a right,
without resulting material or pecuniary loss.5 Where material damages are claimed, they
must not be too remote from the wrongful conduct. Civil law jurisdictions tend to treat
this problem in terms of equivalent or adequate causal connections, while common
law jurisdictions look to the proximate or natural consequences of acts. Tribunals also
look to intervening acts: contemporaneous or subsequent intervening acts will negate
or reduce damages.6
Reparation is thus the generic term that describes various methods available to a state
to discharge or release itself from state responsibility for a breach of international law,
i.e. to remedy an international wrong. The duty to provide reparation is itself an inter-
national obligation that arises upon the commission of an internationally wrongful act,
because any breach of international law causes injury to the state whose interests have
been infringed.7 In its judgment concerning the Chorzów Factory (Indemnity) Case, the
Permanent Court of International Justice called the obligation to make reparation for
breach of an engagement ‘a general principle of international law’ and part of ‘a general
conception of law’.8
The basic aim of international reparations is essentially the same as that of national
remedies: to make good the injury caused by a wrongful act. Grotius described the
Aristotelian theory by which damage should be made good in private injuries, defining
damage as having less than belongs to a person.9 The law gives particular rights to those
wronged, which both states and individuals can demand. Vattel also insists that every
state has the right to obtain complete reparation when an injury is done to it.10
Reparations generally seek to place the injured state where it would have been at the
moment of judgment if the injury had not occurred.11 Reparations to the date of resolution

3
  Graefrath speaks of reparation for material damages and satisfaction which covers moral or politi-
cal damages: B. Graefrath, ‘Responsibility and Damages Caused: Relationships between Responsibility
and Damages’ (1984) 185 Receuil des Cours 69. See also E. Riedel, ‘Satisfaction’, in R. Bernhardt (ed.),
10 Encyclopedia of Public International Law (Amsterdam, 1987), 383 [hereinafter EPIL]; R. Wolfrum,
‘Reparation for Internationally Wrongful Acts’, in 10 EPIL, 353.
4
  Factory at Chorzów Case (Germany v. Poland) (Merits) [1928] PCIJ Rep. Series A No. 17 at 28.
Also, in the Corfu Channel Case, the International Court of Justice recognized that damage to two
British warships and the cost of pensions and medical treatment as a result of the killing and injuring
of crew members were cognizable claims, but that the injury was to the state. Corfu Channel Case,
(U.K. v. Albania) (Merits) [1949] ICJ Rep. 1, 4.
5
  D. Anzilotti, Teoria Generale Della Responsabilita Dello Stato Nel Diritto Internazionale (Florence,
1902), 13–14. See also A.S. De Bustamante, III Derecho International Publico (Madrid, 1986), 481.
6
  See the Naulilaa Arbitration (Portugal v. Germany) (1928) 2 RIAA 1013 (rejecting a claim for
damages as too remote where a native uprising occurred after wrongful German reprisals against a
Portuguese colonial territory).
7
  F.V. Garcia-Amador, The Changing Law of International Claims (London, 1984), ii, 567.
8
  Factory at Chorzów Case (Germany v. Poland) (Jurisdiction) [1928] PCIJ Rep. Series A No. 17 at
29. Cheng concurs: ‘It is a logical consequence flowing from the very nature of law and is an integral part
of every legal order’: B. Cheng, General Principles of Law as Applied by International Courts and Tribunals
(Cambridge, 1953), 170.
9
  H. Grotius, De Jure Belli Ac Pacis Libri Tres, trans. F.W. Kelsey (Oxford, 1925), vol. ii, ch. XVII,
430–1.
10
  E. de Vattel, The Law of Nations, (7th edn, Philadelphia, 1849), bk. II, s. 51.
11
  B. Bollecker-Stern, Le préjudice dans la théorie de la responsabilité internationale (Paris, 1973), 10.
Eagleton, however, asserts that the ideal form of reparation is the restoration of the situation exactly as
it was before the injury: C. Eagleton, ‘Measure of Damages in International Law’ (1929) 39 Yale L.J.
52, 53. See also L. Sohn and R. Baxter, ‘Responsibility of States for Injuries to the Economic Interests of
34 The Conceptual Framework

of a claim cover more losses and may envisage restitution (i.e. the re-establishment of
the right injured or the state of legality) plus compensation for damages suffered. In all
instances, ‘[a]‌correlation exists between the significance of the international obligation
breached and the reparations owed [and this] correlation is governed by the principle of
proportionality’.12 Reparations thus should not be understood as demanding restoration
of the status quo ante, which is impossible, but should afford an equivalent to that which
has been lost.13 In most cases this will require both partial restitution and pecuniary
damages. Monetary compensation is the most common form of reparation because, as
Grotius says, ‘money is the common measure of valuable things’.14 The amount of com-
pensation must correspond to the value of restitution in kind.
International remedies serve to further an additional aim. In the absence of a collec-
tive sanctioning or enforcement authority, the injured party claiming reparations acts to
uphold the public interest or legal order by punishing and deterring wrongdoing. Vattel
asserts that the injured have a right to provide for their future security, and to chastise
the offender, in order to deter future wrongdoing.15 Garcia-Amador similarly claims
that the concept of reparation in international law traditionally has included both a
compensatory element (restitution or damages) and a punitive one (satisfaction). He
views satisfaction as punitive because the scope of this form of reparation is determined
more by the nature of the wrongful act than by the injury actually caused.16 Indeed, he
asserts that satisfaction ‘is essentially and invariably penal in character’.17 Thus, in addi-
tion to an apology, an injured state may ask for punishment of the wrongdoer18 and ‘all
other suitable redress’ to ensure deterrence.19 In cases of egregious harm, the principle of
proportionality20 may permit an increase in the award of damages in satisfaction (puni-
tive damages) due to the degree of misconduct by the defendant state.21
Satisfaction also functions to redress moral, immaterial, or non-pecuniary dam-
age caused to a state, including disrespect and impairing a state’s dignity and honour.
Measures of satisfaction operate to acknowledge the wrong and express regret, similar
to the purpose served by moral damages in national legal systems. Anzilotti posits, how-
ever, that in every case ‘there is invariably an element of satisfaction and an element of

Aliens’ (1961) 55 Am. J. Int’l L. 545, 580 (reparations consist of all the measures necessary to re-establish
the situation of legality).
12
 Wolfrum, supra n. 3 at 352–3.
13
  J. Personnaz, La reparation du préjudice en droit international (Paris, 1938), 197–8.
14
 Grotius, supra n. 9 at 437. 15
 Vattel, supra n. 10, bk. II, s. 52.
16
 Garcia-Amador, supra n. 7 at 559.
17
  Ibid, 575. Nonetheless, the notion of strictly punitive damages is controversial. See: E. Jimenez
de Arechaga and A. Tanzi, ‘International State Responsibility’, in M. Bedjaoui (ed.), International
Law: Achievements and Prospects (Dodrecht, 1991), 347, 369, citing Jimenez de Arechaga, ‘International
Responsibility’, in M. Sørensen (ed.), Manual of Public International Law (New York, 1968), 549, 571.
18
  Punishment of individual perpetrators was given formal recognition in the work of the Preparatory
Committee of the Hague Conference of 1930. The Basis of Discussion Draft 29 says: ‘Responsibility
involves for the State concerned an obligation to make good the damage suffered in so far as it results
from failure to comply with the international obligation. It may also, according to the circumstances,
and when this consequence follows from the general principles of international law, involve the obli-
gation to afford satisfaction to the State which has been injured . . . in the shape of an apology (given
with the appropriate solemnity) and (in proper cases) the punishment of the guilty persons’: League of
Nations Publ. (1929) at 151.
19
  J.B. Moore at (1916) 5 Digest of International Law 41; see also (1916) 6 Digest of International Law
857 [hereinafter Moore, Digest]; Garcia-Amador supra n. 7, at 569–70; P.A. Bissonnette, La satisfaction
comme mode de reparation en droit international (1952), 55–61.
20
  See Wolfrum, supra n. 3 at 351; Art. 2 ILC, ‘Third Report on State Responsibility’ (1972) UN
Doc. A/CN.4/354, Adds.1, 2.
21
  E. Riedel, ‘Damages’, 10 EPIL supra n. 3 at 70.
 Sources and General Content of the Law of Remedies 35

reparation, the idea of punishing the wrongful act and that of making good the damage
sustained; what varies is, rather, the relative proportion of the two elements’.22 In prac-
tice, money frequently is paid as satisfaction to deter future misconduct and sanction the
wrong. Satisfaction also can consist of apologies, missions of expiation, the construction
of monuments,23 or a judicial declaration of the unlawful character of an act,24 if the
nature of the harm does not demand more.
Of all the breaches of international law that give rise to state responsibility, those
involving injury to aliens are the closest to modern international human rights viola-
tions. The considerable jurisprudence developed by claims commissions and other tri-
bunals discussed in c­ hapter 5 provides instructive precedent on the theory and practice
of remedies for violations of individual rights, keeping in mind that the analogy is not
perfect because of distortions imported due to the disparity in the power of states and
their uneven interest in presenting claims.
According to traditional doctrine, a state that injures an individual injures the state of
nationality.25 The government may adopt the grievance and espouse it as an international
claim against the offending foreign state. The claimant state is deemed to be asserting
its own rights,26 with the injuries to the individual providing a basis for calculating the
reparation due the state.
The normative basis of state responsibility for injury to aliens is the wrongful act of
the state. The breach may come from the injurious actions of state officials directly or
from the failure of the state to perform its international duty to take all reasonable and
adequate measures to prevent private wrongs, including the duty to arrest and bring an
offender to justice. The state is not held directly and primarily responsible for private
wrongs because such an approach would have the effect of making the state an insurer
of the safety and well-being of aliens. Lack of due diligence of state organs, i.e. when
the state ‘has failed to take such measures as in the circumstances should normally have
been taken to prevent, redress or inflict punishment for the acts causing the damage’,
nevertheless renders the state responsible for private wrongs.27
There are various theories to explain state responsibility for injury to aliens caused by
private actors. One theory is that the state is acting in complicity with the actual wrong-
doer. According to Vattel, ‘[t]‌he sovereign who refuses to cause reparation to be made for
the damage done by his subject, or to punish the offender, or, finally, to deliver him up,
renders himself in some measure an accomplice in the injury, and becomes responsible
for it’.28 Where there is actual complicity on the part of the government, this approach
makes sense, but in many cases there is no knowledge or other participation in the
wrong. Thus an alternative theory posits that state failure to prevent or remedy the harm
amounts to condoning the injury. It imposes responsibility if the state grants amnesty
or otherwise shows some approval or acquiescence in the wrong. The arbitrator in the
Janes (U.S.) v. Mexico case appears to have adopted this approach: ‘[C]ertainly there is
no violence to logic and no distortion of the proper meaning of the word “condone” in
saying that a nation condones a wrong committed by individuals when it fails to take
action to punish the wrongdoing’.29

22
 Anzilotti, supra n. 5 at 425. 23
 Riedel, supra n. 3 at 383.
24
  Corfu Channel Case, supra n. 4. 25
 Vattel, supra n. 10, bk. II, s. 71.
26
  Mavrommatis Palestine Concessions Case (Greece v. United Kingdom) (Jurisdiction) PCIJ Rep. Series
A No. 2 at 12; See also D. Anzilotti, Corso de Diritto Internazionale, (4th edn, Padua, 1935), i, 423.
27
  Text approved at the 1930 Hague Conference, 560. 28
 Vattel, supra n. 10 at s. 77.
29
  Janes Case (U.S. v. Mexico) (1926) 4 RIAA 82, at 123.
36 The Conceptual Framework

The illegal act giving rise to state responsibility often has been denominated ‘denial
of justice’.30 The concept of denial of justice is linked closely with what today would
be called the right to a remedy, including the elements of fair trial associated with it.
Mostly it dealt with procedural irregularity irrespective of the substantive law. The 1902
Convention Concerning the Rights of Aliens,31 for example, provides that no diplo-
matic claims shall be made ‘except in the cases where there shall have been, on the part
of the tribunal, manifest denial of justice, or abnormal delay, or evident violation of the
principles of international law’. A wrong decision is not enough; there must be fraud,
corruption, or denial of legal opportunity to present a case.32 Failure to execute the judg-
ment of a relevant court is also a denial of justice.
No modern treaty defines the term ‘denial of justice’, but it was used frequently in
diplomatic correspondence during the first half of the twentieth century.33 It seems that
denial of justice was mentioned mostly after an alien was unable to obtain redress before
local tribunals. It appears to have encompassed both the denial and inadequacy of local
remedies, including the failure to grant access to courts or to hear interested parties, as
well as other instances of manifest injustice. Today the term is applied to most acts of the
judiciary, including delays of justice and manifest injustice, but some scholars are of the
view that it applies to any failure of local remedies and to all internationally illegal acts by
any branch of government connected with the administration of justice.34 Other defini-
tions include any violation of a legal right, privilege, or immunity of a person35 or any
illegal treatment of aliens, irrespective of the means of redress afforded the individual.36
In the Janes case, denial of justice was said to apply to all acts of the executive and the
legislature, as well as the judiciary.37 In contrast, in the Chattin case, denial of justice was
restricted to the failure of the authorities to give reparation for a wrong suffered by the
claimant.38
This discussion is relevant to the issue of when state responsibility arises. At the
moment of injury? At the moment of injury by a state agent, but not a private party? Or
at the failure of local remedies? The second is widely accepted, but the third has been
applied most often in practice.39 The first approach implies that a state is responsible for
the injurious act of any person that does harm to an alien, but that the proper operation
of local remedies discharges that responsibility. In contrast, the third theory suggests that
no responsibility is incurred until local remedies have failed and that the only form of
reparation possible is that made state to state. It is difficult to reconcile the theories that
the state is responsible only for its own acts with state practice that measures reparations
by the harm done to aliens by non-state actors. It is much more logical to say that the

30
  The concept of denial of justice has a long history as described briefly in Chapter 1.1.
31
  Art. 3, Convencion relativa a los derechos de extrajeria, Actas y documentos de la Segunda Conferencia
Pan-Americana 825, 826 (Mexico City, 29 Jan. 1902), reprinted in Consol. T.S. 445.
32
  E.M. Borchard, The Diplomatic Protection of Citizens Abroad (New York, 1916) 332; See also
J.B. Moore, History and Digest of the International Arbitrations to which the United States Has Been a Party
(Washington, 1898) [hereinafter Moore, International Arbitrations], 2134, 3497.
33
  See the cases in Moore, International Arbitrations, 262, 268, 270, 272, 270, 661, 699.
34
  G. Fitzmaurice, ‘The Meaning of the Term Denial of Justice’ (1932) 13 Brit. Y.B. Int’l L. 93, 108
et seq.
35
  O. Lissistyn, ‘The Meaning of Denial of Justice in International Law’ (1936) 30 Am. J. Int’l L. 632.
36
  I.C. Hyde, International Law Chiefly as Interpreted and Applied by the United States (Boston, 1951),
i, 491–2; Moore, 7 Digest, supra n. 19, 536; A.G. Lapradelle and N.S. Politis, Recueil des arbitrages inter-
nationaux (Paris, 1924), ii, 31, ‘Affaire Croft’ note doctrinale.
37
  Janes Case, supra n. 29 at 117.
38
  Chattin Case, United States–Mexican Claims Commission, Opinions (1927) 426–9; see also
Stephens Case, United States–Mexican Claims Commission, Opinions, this note at 397, 400–1.
39
 Eagleton, supra n. 11 at 59.
 Sources and General Content of the Law of Remedies 37

state is responsible in all cases, but discharges its responsibility through effective local
remedies.
Various unsuccessful efforts to codify the law of state responsibility took place dur-
ing the past century, uncertainty about reparations proving to be a significant problem.
Early work by the League of Nations and private bodies to codify the rules on the topic
reflected a traditional focus on responsibility for injuries to aliens.40 The League’s 1930
Codification Conference in The Hague was unable to reach agreement on the substan-
tive rules regarding the treatment of aliens and their property, because the meeting was
divided between proponents of an international standard of justice and those favouring a
standard of national treatment. In addition, the Conference Subcommittee on Damages
concluded that it was best to leave the issue of reparations for future development as
there had not yet been sufficient crystallization of the principles in state practice to war-
rant codification.41
The United Nations International Law Commission (ILC) struggled with the issue
of state responsibility after its creation in 1949, finally concluding its work in 200142
when it adopted and forwarded to the UN General Assembly a text containing fifty-nine
articles and a lengthy commentary. The General Assembly, by Resolution 56/83 of 12
December 2001, took note of the articles and ‘commended’ them to the attention of
governments ‘without prejudice to the question of their future adoption or other appro-
priate action’.43
The section of the ILC’s 2001 Articles that addresses the issue of reparations reflects
pre-existing law on remedies, but also innovates in significant ways to reinforce broader
community interests in the international rule of law. The Articles are potentially useful
in deciding human rights claims as well as inter-state proceedings, because Article 33(2)
contains a ‘savings clause’ indicating that inter-state reparations are without prejudice to
reparations that may be owed to individuals, intergovernmental organizations, or other
non-state entities.
The basic architecture of the Articles on reparations proceeds from the conceptual
structure articulated by the Permanent Court of International Justice in Chorzów Factory
and reaffirmed by the International Court of Justice: Part One sets forth the rules con-
cerning breach of an international obligation while Part Two articulates the legal con-
sequences that automatically flow from such a breach. The three chapters of Part Two
affirm that new obligations44 arise when a state commits an internationally wrongful act.

40
  See Edwin M. Borchard, ‘“Responsibility of States” at the Hague Codification Conference’ (1930)
24 Am. J. Int’l L. 517; Green H. Hackworth, ‘Responsibility of States for Damages Caused in their
Territory to the Person or Property of Foreigners’ (1930) 24 Am. J. Int’l L. 500. See, generally, Y. Matsui,
‘The Transformation of the Law of State Responsibility’ (1993) 20 Thesaurus Acroasium 1.
41
  League of Nations Publ. (1930), xvii at 234. Art. 3 of the ILC Articles adopted by the Third
Committee of the Conference stated, somewhat unhelpfully: ‘The international responsibility of a State
imports the duty to make reparation for the damage sustained in so far as it results from failure to comply
with its international obligation’: see Garcia-Amador, supra n. 7, ii, 559–617.
42
  State responsibility was one of the fourteen topics originally selected by the Commission for
‘codification and progressive development’ in 1949. 1949 Y.B. Int’l L.Comm’n 281, UN Doc. A/CN.
4/SER.A/1949; UNGA Res. 799 (1953) GAOR 8th Session Supp. 17, 52. Over the decades, there were
five rapporteurs and thirty ILC reports on the issue.
43
  GA Res. 56/83 (12 Dec. 2001), available at http://www.un.org/docs (footnotes omitted). The ILC
Articles are annexed to the resolution.
44
  The Articles formulate all the rules in Part Two in terms of obligations of the responsible state,
rather than as rights of the injured party to obtain reparation. See J. Crawford, ILC ‘Third Report on
State Responsibility’ (15 March 2000) A/CN.4/507, 4–6, 12–13. The shift to obligations also serves to
reinforce the concern with restoring and maintaining the rule of law.
38 The Conceptual Framework

These are ‘default settings’ that apply in the absence of a specific agreement about the
consequences of a breach of law.
The six Articles in Part Two, Chapter I,45 laying out the legal consequences that follow
from an internationally wrongful act, focus heavily on re-establishing and upholding the
international rule of law, both in the interest of any injured state and of the international
community at large. The Commentary highlights the multilateral context, expressing
concern for ‘the maintenance of respect for international law and for the achievement of
the goals which states advance through law-making at the international level’.46
Cessation of the breach is fundamental to this framework. Article 29 affirms that the
breach of an obligation does not end a state’s duty to comply; the obligation continues
and the state must conform its conduct to the law.47 The placement and treatment of ces-
sation represents a shift from earlier approaches to the law of state responsibility, which
considered cessation and guarantees of non-repetition to be a form of satisfaction.48
Now, cessation is treated as an inherent obligation of the responsible state and not as a
form of reparation. Article 30 adds that if the wrongful act is continuing,49 it must cease
and ‘if circumstances so require’, the state responsible must offer appropriate assurances
and guarantees of non-repetition. Cessation is thus the first requirement imposed on a
state committing a continuing wrongful act,50 even if the injured state does not demand
compliance.51 Second, cessation is not subject to the limits of proportionality that the
Articles impose on restitution and other forms of reparation. Compliance with the norm
must be restored.
Assurances and guarantees of non-repetition are included with cessation as aspects of
the rule of law affected by the breach, rather than among reparations, because they look
to the protection or maintenance of the legal relationship in the future. They are preven-
tive and presuppose a risk of repetition. Article 30 indicates that that assurances and
guarantees should be afforded only when ‘circumstances so require’. The Commentary

45
  The six Articles in Chapter I address the following: the fact that an internationally wrongful act
entails legal consequences (Art. 28); the responsible State’s duty to perform the obligation breached
(Art. 29); the duty to cease a continuing wrong and provide guarantees of non-repetition, if appropriate
(Art. 30); the duty of full reparation for injury caused (Art. 31); the irrelevance of internal law to repa-
rations (Art. 32); and the scope of the obligation as owed to one or more states or to the international
community as a whole.
46
  Commentary to Part II, Chapter 1, General Principles, para. 2.
47
  The provisions of the Vienna Convention on the Law of Treaties allow an injured state the option
of terminating a treaty for material breach, but do not automatically void an agreement as a consequence
of a breach or repudiation: 1155 UNTS 331, Art. 60; see also the Gabčikovo-Nagymaros Project Case,
where the ICJ held that the bilateral agreement remained in force, despite continuing material breaches
by both sides. Gabčikovo-Nagymaros Project (Hungary v. Slovakia) [1997] ICJ Rep. 7 at 68, para. 114.
While states may agree that some treaties will terminate upon breach, the Articles see this as a matter
regulated by the relevant primary obligation, not by the law of state responsibility.
48
  One reason why cessation may have been seen as a form of reparation is that it is often indistin-
guishable from restitution; e.g. where individuals are wrongfully detained, cessation as well as restitu-
tion can only be accomplished by restoring the liberty of the detained persons. See e.g. Inter-American
Court of Human Rights Loayza Tamayo v. Peru, (Merits) (1997) 33 Series C; U.S. Diplomatic and
Consular Staff in Teheran (United States v. Iran) [1980] ICJ Rep.  3.
49
  The Commentary indicates that the term ‘continuing’ is intended to encompass situations where
a state has repeatedly violated an obligation, implying the possibility of further repetitions. Art. 30,
Commentaries, para. 3. Such a situation would seem, strictly speaking, to fall more within the second
paragraph on the need for guarantees of non-repetition rather than being an act of a continuing charac-
ter. If the violation is not occurring at a particular time, there is no wrongful conduct that must cease.
50
  In the Rainbow Warrior arbitration, reference is made to the inherent authority of a tribunal to
issue an order for the cessation in the face of a continuing breach. ‘Rainbow Warrior’ Case, (France
v. N.Z.) (Arbitration Tribunal) (1990) 82 ILR 573, 270.
51
  Art. 30, Commentaries, para. 8.
 Sources and General Content of the Law of Remedies 39

reinforces the limited role foreseen for such measures, calling them measures of ‘rather
exceptional character’.52 The rationale for the limitation is not only the anticipatory nature
of the measures, but also, apparently, abusive state practice.53
Article 31 sets forth the general rule from Chorzów Factory that the responsible state
is by law and automatically54 obliged to make ‘full’ reparation for any injury, includ-
ing any material or moral damage caused by the wrongful act.55 Article 32 adds that the
responsible state cannot invoke its own law as a basis for failing to provide reparations. The
Commentary indicates that full reparation means the responsible state is obliged to wipe
out all the consequences of the illegal act through providing one or more forms of repara-
tion.56 The forms of reparation, listed in Article 34, are restitution, compensation, and
satisfaction, either singly or in combination, accompanied in appropriate cases by interest.
The purpose of compensation is to indemnify quantifiable losses suffered by the injured
state, not to punish.
The principle of full (and no more) reparations is closely linked to the difficult issue
of causality, tersely addressed in Article 31(2), which provides that reparations are to be
made for ‘[i]‌njury . . . caused by the intentionally wrongful act’. Causation is a complex
issue in every legal system, and consideration of the extent of liability for remote events
or limitations due to the existence of intervening causes may produce considerably
different results among various legal systems. These complexities are not dealt with
in the Articles, leaving it for courts and practitioners to develop appropriate tests for
causation.
Considerable jurisprudence exists on the issue of remoteness of damage or proxi-
mate causation,57 dating back to the Alabama Arbitration.58 The concern is to allow full
compensation for actual material and moral damages while excluding purely speculative
claims for injury too indirect or remote to furnish a basis for imposing liability.59 The line
drawn inevitably demands policy determinations about the reasonableness of expect-
ing an actor to have foreseen the specific consequences of the action taken and about
which party should most appropriately bear the loss. It is not surprising, then, that the
Commentary mentions the degree of fault (‘whether state organs deliberately caused
the harm in question’) as an element that can affect the scope or remoteness of harm
that will be encompassed by the duty of reparation, citing a decision of the Iran Claims
Tribunal.60 Fault is also taken into account in reducing damages due to the failure of the

52
  Art. 30, Commentaries, para. 13. Most examples of guarantees are found in historic claims prac-
tice concerning injury to aliens although in the LaGrand Case, Germany made extensive use of the ILC
Articles in seeking guarantees and assurances.
53
  The Commentary indicates a desire ‘to prevent the kinds of abusive or excessive claims which char-
acterized some demands . . . by States in the past’. Art. 30, Commentaries, para. 13. The Commentary
does not cite any examples.
54
  Reparation is thus not contingent upon a demand or protest by any state, although the form of
reparation may be determined by the injured state or states. Art. 31, Commentaries, para. 4, p. 224.
55
  Although the Commentary says that ‘injury’ means any damage caused by the wrongful act and
thus includes any material or moral damage caused, the formulation is intended to exclude merely
abstract concerns or general interests of a state. Art. 31, Commentaries, para. 5.
56
  Government comments generally expressed approval of the principle of full reparation. See Third
Report, 12, para. 22.
57
  See Marjorie Whiteman, 3 Damages in International Law 1765–1875 (1943).
58
 Moore, International Arbitrations, supra n. 32, at 495–682.
59
  See the Trail Smelter Arbitration (United States v. Canada) (1938, 1941) 3 RIAA, 1905 at 1931;
Claims against Iraq (Category ‘B’ Claims) (14 Apr. 1994)  UNCC S/AC.26/1994/1; Well Blowout
Claim, (15 Nov. 1996) S/AC.26/1996/5.
60
 Iran–United States Claims Tribunal, Islamic Republic of Iran v.  United States of America
(28 December 1998) Cases No. A15(IV) and A24, Award No. 590-A15/A24-FT.
40 The Conceptual Framework

injured party to mitigate damages61 or its contributory fault.62 This rule is related to the
requirement of a causal link between the wrongful act and the injury, considering that it
would be incompatible with the remedial focus of reparations to require the responsible
state to compensate for harm caused by the injured state’s own conduct.
Turning to the forms of reparations, restitution is defined in Article 35 as re-establishing
‘the situation which existed before the wrongful act was committed’. It is the first form of
reparation and, if requested by the injured state, is required of the responsible state unless
it is materially impossible or ‘involve[s]‌a burden out of all proportion to the benefit
deriving from restitution instead of compensation’. While Article 35 reflects the primacy
of restitution based on the Chorzów Factory case63 and other precedents,64 modern claims
practice often centres on compensation because it is concerned with seizure of property
with market value, breaches of contract, and similar economic issues, where compensa-
tion is the normal remedy.
The grounds for not granting restitution have been widened to allow greater flexibility
within the goal of full reparations. The Permanent Court of International Justice referred
to ‘impossibility’ of restitution as the basis for substituting compensation,65 while Article
35 adds a proportionality test except, it would seem, in case of a breach of a peremptory
norm66 or a continuing violation where cessation and restitution may be co-extensive.
The Commentary refers to ‘impracticability’ as well as impossibility of restitution, and
establishes a cost-benefit analysis to determine when restitution would place a burden
‘out of all proportion’ on the responsible state, although ‘with a preference for the posi-
tion of the injured state in any case where the balancing process does not indicate a clear
preference for compensation as compared with restitution’.67 The disproportionality test
of Article 35 is likely to generate more disputes than did the former test of impossibility,
but it also seems more consistent with recent state practice, which approaches the issue
of restitution with some flexibility.68
Where restitution is not provided or does not eliminate fully the consequences of
the harm, the state responsible must compensate for any financially assessable damage,
including loss of profits, that its wrongful act caused the injured state or its nationals.69

61
  Gabčikovo-Nagymaros Project (Hungary v. Slovakia) (Merits) supra n. 47 at 55, para. 80 (stating that
the principle of mitigation might provide a basis for the calculation of damages); Well Blowout Control
Claim (1996) 109 ILR 480, 502–503 (‘under the general principles of international law relating to
mitigation of damages . . . the Claimant was not only permitted but indeed obligated to take reasonable
steps to . . . mitigate the loss damage or injury being caused’.).
62
  In contrast, the contributory fault of a third party will not reduce the amount of reparations due.
See Corfu Channel, supra n. 4. For a shifting of the burden of proof to the responsible state to prove lack
of or reduced causation, see The Zafiro, (1925) 6 RIAA 160, 164–5.
63
  Factory at Chorzów (Merits) supra n. 4 at 47.
64
  See e.g. Temple of Preah Vihear (Cambodia v. Thailand) [1962] ICJ Rep. 6 and the arbitral decisions
Topco v. Libya (1977) 53 ILR 389 and British Petroleum v. Libya, (1973) 53 ILR 297.
65
  Factory at Chorzów (Merits) supra n. 4 at 47.
66
  This may reflect a policy choice that no state should be allowed to opt out of a peremptory norm
through the payment of compensation if it is at all possible to perform the required act.
67
  Art. 35, Commentaries, para. 11.
68
  In the case of the Gabčikovo-Nagymaros Project, the ICJ said it was open to the parties to agree that
Hungary was not required to build the part of the system it had failed to build, while Slovakia should
conform its operation of the project it had built to the requirements of the treaty. In addition, off-setting
compensation was afforded each side for the breach of the other party. The Court indicated that its flex-
ibility concerning reparations resulted from the factual situation, noting specifically that it could not
disregard that the treaty had not been fully implemented by either party for years and thus contributed
to creating ‘the irregular state of affairs’ Gabčikovo-Nagymaros Project, supra n. 47, paras. 133, 150.
69
  Art. 36. The Commentary to Art. 36 specifies that compensation is intended to exclude moral
damage to a state, which is the subject matter of satisfaction and dealt with in Art. 37.
 Sources and General Content of the Law of Remedies 41

Prior practice firmly supports this rule.70 In the case of the Gabčikovo-Nagymaros Project,
for example, the ICJ declared it to be ‘a well-established rule of international law that an
injured state is entitled to obtain compensation from the state which has committed an
internationally wrongful act for the damage caused by it’.71
The scope of damages remains to be defined in practice, particularly the definition
of ‘material’ damage to property or other interests of the state and its nationals that is
‘assessable in financial terms’. The concept of financially assessable damage is an evolving
one, because the determination of whether something is ‘capable of being evaluated in
financial terms’ shifts as markets develop and economic analysis designs new methods
of valuation. While there is considerable international jurisprudence on the particular
headings of damages, litigants and judges also are likely to turn to comparative law to
determine what claims are capable of being financially assessed, because new issues often
develop in doctrine and national practice before being presented to an international
tribunal.
The rules themselves are very concise on the issue of compensation. The Commentary
suggests that what is appropriate, proportional or equitable in any particular case may
vary, in order to ensure compliance with international law by the responsible state while
affording justice to any injured state.72 The Commentary provides some guidance by
including a comprehensive discussion of precedents, indicating the range of compensa-
ble losses, headings of damage, and methods of quantification.73 This analysis illustrates
developments and variations in the awards of compensation.74 The Commentary cites
with approval the formula Umpire Parker used in the Lusitania cases to calculate dam-
ages for wrongful death75 and refers to the use of per diem amounts to compensate for
unlawful detention.76 The formula for compensating wrongful death has been utilized as
the basis of a number of human rights and diplomatic protection claims.77
The Commentary notes that awards for property claims are based upon general prin-
ciples that help to assess: (i) compensation for capital value; (ii) compensation for lost

70
  See e.g. Chorzów Factory Case, supra n. 4 at 47 and Corfu Channel Case, supra n. 4.
71
  Gabčikovo-Nagymaros Project, supra n. 47, para. 152.
72
  The Commentary to Article 36 states that the appropriate heads of compensable damage and the
principles of assessment to be applied in quantification will vary, ‘depending upon the content of par-
ticular primary obligations, an evaluation of the respective behavior of the parties, and, more generally,
a concern to reach an equitable and acceptable outcome’. Art. 36, Commentaries, para. 7. See Art. 31,
Commentaries, para. 14; Art. 35(b), Commentaries, paras. 7–11; Art. 37(3), Commentaries, para. 8;
and Art. 39, Commentaries, para. 2.
73
  See Art. 36, Commentaries, paras. 8–34.
74
  The Commentary contains examples of replacement cost for destroyed property, costs of repairing
damaged property, and lost profits, as well as damages for loss of life, arbitrary detention and other per-
sonal injury, and environmental damage. The precedents demonstrate that these losses, while difficult
to quantify, are financially assessable.
75
  The Commentary refers to the Lusitania case as an example where compensable personal injury
included material losses such as lost earnings and earning capacity, medical expenses, and other pecuni-
ary harm, and non-material damage such as loss of consortium, pain and suffering, humiliation, and
dignitary losses resulting from loss of reputation or credit. See Lusitania Cases, 7 RIAA 35, 40. Moral
injury is also compensated by human rights tribunals and was included in the M/V Saiga case to com-
pensate for the injury to the crew, their unlawful arrest, detention and other forms of ill-treatment.
76
  E.g. the Topaze case (U.K. v. Venezuela) RALSTON (1903) 329; U.S.A. v. United Mexican States
(Walter H. Faulkner) Opinions of Commissioners, 1927, 86. Such amounts are usually increased where
conditions of confinement are abusive. William McNeil (1931) 5 RIAA 164, 168.
77
  See e.g. the claims presented to and accepted by the Inter-American Court of Human Rights in the
case Aloeboetoe v. Suriname (Reparations) (1993) 15 Series C. As the Commentary notes, the decisions
of human rights bodies on compensation draw on principles of reparation under general international
law. Art. 36, Commentaries, para. 19.
42 The Conceptual Framework

profits; and (iii) incidental expenses. ‘Fair market value’ is the method most generally
used to determine the capital value of property taken or destroyed, but there are various
means to determine fair market value especially where the property interests are unique
or unusual. Alternative valuation methods are also discussed and precedents using them
are cited: net book value, liquidation or dissolution value and discounted cash flow are
all cited, with some helpful indication given about the circumstances that might favour
use of one method over another. The Articles also make clear that lost profits are not
necessarily to be compensated, but may be awarded where appropriate. They may be
excluded when too speculative or where they are not sufficiently established as a legally
protected interest.78 Incident expenses reasonable incurred are also compensable.79
Article 38 provides that interest shall be awarded when necessary to ensure full repa-
ration, leaving the rate and mode of calculation to be decided on a case-by-case basis.80
The Commentary notes the extensive practice supporting the award of interest. It cites
in particular the jurisprudence of the Iran–United States Claims Tribunal, noting that
it and other tribunals have found that their general jurisdiction over claims includes the
inherent power to award interest.81 Decision 16 of the Governing Council of the United
Nations Compensation Commission82 also allows for awards of interest and awards of
interest are common in human rights tribunals.83
Article 39 indicates that interest is to run from the date when the principal sum
should have been paid until the date the obligation to pay is fulfilled,84 but without
setting forth any elements by which this issue could be determined. The Commentary
rightly notes that the actual calculation of interest ‘raises a complex of issues concerning
the starting date (date of breach, date on which payment should have been made, date
of claim or demand), the terminal date (date of settlement agreement or award, date of
actual payment) as well as the applicable interest rate (rate current in the respondent
state, in the applicant state, international lending rates)’.85 Rather than attempt to set
forth more detailed rules or guidelines, the Article leaves the determination of interest to
the discretion of the parties and the respective tribunals.
The Articles envisage satisfaction as an exceptional remedy to be awarded only in ‘cer-
tain cases’.86 Satisfaction may consist of an acknowledgement of the breach, an expression
of regret or apology87 or ‘another appropriate modality’88 that is neither disproportionate

78
  See e.g. the Oscar Chinn Case (1934) PCIJ Series A/B No. 63, 65.
79
  Art. 36, Commentaries, para. 34.
80
  The Commentary does find that practice is against the award of compound interest, while noting
some views to the contrary. See Art. 38, Commentaries, paras. 8–9. For a summary of international
precedents denying compound interest, see McKesson Corp. v. Iran, 116 F.Supp. 12, 41 (D.D.C. 2000).
81
  See e.g. Islamic Republic of Iran v. United States of America (Case A-19) (1987) 16 Iran–USCTR
285, 289–90; The S.S. ‘Wimbledon’ [1923] PCIJ Series A No. 1, 32; The M/V ‘Saiga’ (No. 2) (Saint
Vincent and the Grenadines v. Guinea), ITLOS, judgment of 1 July 1999, para. 173.
82
  ‘Awards of Interest’, Decision 16 of 4 Jan. 1993, S/AC.26/1992/16.
83
  See e.g. Papamichalopoulos v. Greece (Article 50) ECtHR (1995) Series A para. 39.
84
  In the Wimbledon case, the court determined that 6% interest should run not from the day the
wrong occurred, but only from the date of the judgment, when reparations were ordered and an amount
fixed. S.S. Wimbledon, supra n. 81 at 32. The Articles take no position on the award of post-judgment
interest, leaving that to the rules of procedure of each court or tribunal.
85
  Art. 39, Commentaries, para. 10. 86
  Art. 34, Commentaries, para. 2.
87
  Apologies are often demanded or offered when a state has committed a breach of international
law. See e.g. The I’m Alone (Canada v.  U.S.) (1935) 3 RIAA 1609; Rainbow Warrior, supra n.  50;
Vienna Convention on Consular Relations (Paraguay v. United States) (Provisional Measures) [1998] ICJ
Rep. 248; LaGrand (Germany v. United States) (Provisional Measures) [1999] ICJ Rep. 9.
88
  Art. 37(2). Indeed, money is often awarded in satisfaction or investigation ordered to identify
and prosecute the individual or individuals who committed the wrong. See e.g. Rainbow Warrior, supra
n. 50; I’m Alone, supra n. 87.
 Sources and General Content of the Law of Remedies 43

nor ‘humiliating’ to the responsible state.89 Like restitution and compensation, satisfac-
tion is intended to restore the injured state to its pre-injury status, as though the wrong
did not occur, but it focuses on the wrongful conduct of the responsible state in order
to provide a remedy for injuries that are not financially assessable, such as moral or legal
injury.
The line between satisfaction as a remedy and satisfaction as an expression of disap-
proval or sanction is not always clear. For this reason, Article 37 obliges the responsible
state to give satisfaction for the injury caused only ‘insofar as it cannot be made good by
restitution or compensation’, saying it is ‘not a standard form of reparation’. Opposition
to satisfaction as a remedy seems based on the past misuse of satisfaction to obtain con-
cessions from weaker states, rather than on a lack of state practice.90 The Commentary
notes that the remedy of satisfaction for non-material injury ‘is well-established in inter-
national law’.91 Certainly, there are many examples of dispute settlement agreements
and other treaties that use the term to describe the range of reparations that may be
provided.92 Moreover, tribunals sometimes characterize a judgment in favour of the
injured party as satisfaction for the wrong that occurred.93 In the Arrest Warrant Case,
for example, the DRC sought and received ‘a formal finding by the Court of the unlaw-
fulness of that act’ as ‘an appropriate form of satisfaction, providing reparation for the
consequent moral injury to the DRC’.94 The use of the term ‘satisfaction’ in the narrow
sense in the Articles thus may not fully reflect state practice.
Applied to human rights law, the ILC Articles can mean that any attributable viola-
tion of a human rights obligation gives rise to state responsibility, engaging the duty to
cease the wrong and make reparations, even if the victim or state bringing the action can
demonstrate no pecuniary loss. Multilateral human rights agreements often give each
state party a right to complain that another state party has not lived up to the obliga-
tions of the agreement. Even if the complaining state has no concrete material interest,
there is a common interest in accomplishing the objectives of the treaty,95 a collective
interest in the integrity of the commitments involved.96 If violations of international law
affect the juridical order and may be complained of by all states,97 the result is a public
action in favour of the treaty system. This approach has implications for the nature and
scope of remedies that may be afforded because of the focus on compliance and deter-
rence. Although the ICJ in the South-West Africa cases rejected the notion of an actio

89
 Art. 37(3).   90  Art. 37, Commentaries, para. 2 and examples given at para. 8.
91
  Art. 37, Commentaries, para. 4.
92
  See e.g. Revised General Act for the Pacific Settlement of Disputes of 23 April 1949, 72 UNTS
101; Art. 30 of the 1957 European Convention for the Peaceful Settlement of Disputes (adopted
28 April 1949, entered into force 20 September 1950) 320 UNTS 243, Art. 32; European Convention
on Human Rights (adopted 1950, entered into force 1953) 213 UNTS 221, Art. 41 as renumbered by
the Eleventh Protocol (1994).
93
  In the Rainbow Warrior Arbitration, the Tribunal noted that ‘[t]‌here is a long established practice
of States and international Courts and Tribunals of using satisfaction as a remedy or form of reparation
(in the wide sense) for the breach of an international obligation. This practice relates particularly to the
case of moral or legal damage done directly to the State, especially as opposed to the case of damage to
persons involving international responsibilities’. Rainbow Warrior, supra n. 50 at 272–3; see also Corfu
Channel (Merits) supra n. 4 at 35, 36 (finding the declaration of a violation in itself appropriate satisfac-
tion) and the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] ICJ
Reports 3, 40 (finding by the Court of international responsibility deemed satisfaction for the moral
injury suffered by the Congo).
94
  Arrest Warrant, supra n. 93, para. 11.
95
  S. Rosenne, The Law and Practice of the International Court (The Hague, 1985), 520.
96
  See [1967] 1 Y.B. Int’l L.Comm’n at 225 (comments of delegate M. Tammes).
97
  Jenks felt all violations of international law harm all other states. See C.W. Jenks, The Prospects of
International Adjudication (London, 1964), 524.
44 The Conceptual Framework

popularis,98 later, in dictum in the Barcelona Traction decision, it recognized the existence
of obligations erga omnes.99
As a final cautionary note, the law of state responsibility encounters a major enforce-
ment barrier with the customary international law on immunities of states and high gov-
ernmental officials from the courts of other states and often from their own courts. The
ICJ held in the Jurisdictional Immunities Case100 and in the Arrest Warrant Case,101 and
the European Court of Human Rights earlier held in Al-Adsani v. U.K. judgment,102 that
the customary immunities remain in place for human rights violations, even those con-
sidered to rise to the level of war crimes and crimes against humanity. Thus, the ICJ held
that an Italian court judgment holding Germany responsible for war crimes committed
during the Second World War violated Germany’s rights under international law to
immunity from Italian courts. The matter continued, however, when the constitutional-
ity of the Italian law that mandated compliance with the ICJ decision on jurisdictional
immunities was challenged on the basis that it allegedly violated the right to a remedy in
Article 24 of the Italian Constitution.103 The Italian Constitutional Court found the ICJ
to have exclusive competence over matters of international law, but it reaffirmed its own
role of guardian of the Constitution. In exercising its role, the Court found that enforce-
ment of the ICJ judgment would entail the violation of Article 24, in cases relating to the
fundamental rights guaranteed by the Constitution, Article 2, and would be intolerable
in the Italian legal system. In sum, because a right without judicial remedy does not exist,
the sacrifice of individual rights would be too great and the legal provisions mandating
compliance were found unconstitutional.

3.1.2 The responsibility of international organizations

The liability of non-state actors for human rights violations is not new.104 Slave-trading
was primarily a private enterprise, condoned and aided by states. Efforts to abolish
slave-trading focused on prosecuting and punishing slavers.105 Individuals also have
long been liable for the commission of war crimes and more recently for genocide106 and

98
  South-West Africa Case (Ethiopia v. South Africa; Liberia v. South Africa) (Second Phase) [1966]
ICJ Rep. 6 at 47.
99
  Barcelona Traction, Light and Power Company, Ltd (Belgium v. Spain) [1970] ICJ 4 (‘an essential
distinction should be drawn between the obligations of a state toward the international community as
a whole, and those arising vis-a-vis another state . . . By their very nature the former are the concern of
all states. In view of the importance of the rights involved, all states can be held to have a legal interest
in their protection: they are obligations erga omnes’.) The Court identified some of these obligations as
deriving from the principles and rules concerning the basic rights of the human person. Others, it said,
‘are conferred by international instruments of universal or quasi-universal character’: ibid.
100
  Jurisdictional Immunities of the State (Germany v. Italy, Greece intervening) General List No. 143
[2012] ICJ.
101
  Arrest Warrant, supra n. 93.
102
  Al-Adsani v. United Kingdom App. 35763/97 (2001) ECtHR 2001-XI. (2001) ECtHR 761,
(2001) 34 EHRR 273.
103
  A 1979 judgment of the Constitutional Court held that if a norm of international law violates a
fundamental domestic constitutional norm, the latter prevails within the domestic legal system. Stefano
Trancossi, SUMMARY OF SENTENCE 238/2014, Italian Constitutional Court, 22 October 2014,
unpublished.
104
  On individual accountability, see S. Ratner and J. Abrams, Accountability for Human Rights
Atrocities in International Law: Beyond the Nuremberg Legacy, (2nd edn, Oxford 2001).
105
  See e.g. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions
and Practices Similar to Slavery (7 Sept. 1956) 266 UNTS 3, art. 6.
106
  Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 Dec. 1948,
entered into force 12 Jan. 1951) 78 UNTS 277, art. 6.
 Sources and General Content of the Law of Remedies 45

crimes against humanity.107 It is also notable that the International Military Tribunal at
Nuremberg declared a national organization to be a criminal enterprise.108
Although non-state actors have thus been held accountable for breaches of a relatively
short list of human rights obligations, the human rights paradigm after the Second
World War focused on restraining powerful state actors. Human rights treaties have
been drafted almost entirely in terms of state obligations, which include the responsi-
bility to ensure that rights are protected against abuses by non-state actors. The duties
of non-state actors themselves are rarely mentioned,109 although in some instances the
rights guaranteed by the treaty are primarily violated by non-state actors.110 Even when a
human rights treaty is silent on non-state actors, some monitoring bodies have expressed
the view that they have responsibilities with respect to some of the rights.111
International organizations figure among the non-state entities whose proliferation
and increased power have raised the question of their responsibility for human rights
violations.112 International organizations are taking on many new and extended func-
tions throughout the world, from expansion of traditional peacekeeping to governance
and managing common resources.113 These new roles place them in a position where
they have the capacity to violate the human rights of individuals not only within, but
outside the organization.
In its 1949 advisory opinion on Reparations for Injuries Suffered in the Service of the
United Nations,114 the ICJ decided that the UN possessed the requisite international
legal personality to make a claim against a state responsible for a wrongful act perpe-
trated against a UN official. Since that opinion, it has been accepted that international
organizations can be considered subjects of international law, according to the functions

107
  Rome Statute of the International Criminal Court (17 July 1998) UN Doc. A/CONF.183/9, 17
ILM 999 (1998).
108
  Charter of the International Military Tribunal (1945) 28 UNTS 284 (Nuremberg Charter), arts.
9,10. In addition, in the trials subsequently held, the directors of I.G. Farben were convicted on the
basis that the company had committed war crimes, although the Tribunal had no jurisdiction to try the
company itself.
109
  A rare example of such mention is found in the Optional Protocol to the Convention on the
Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, adopted
25 May 2000, A/RES/54/263. Its Art. 3(4) provides that each state party shall take measures, where
appropriate to establish the liability of legal persons for offences established in the Convention. Such
liability may be criminal, civil or administrative. See also, Convention on the Elimination of All Forms of
Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195
(CERD) art. 2 (referring to obligations of states, institutions, groups and individuals) and Convention
on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered
into force 3 September 1981) 1249 UNTS 13 (CEDAW) art. 2(e) (states parties are to take all appro-
priate measures to eliminate discrimination against women by any person, organization or enterprise).
110
  The most recent example of this is the International Convention on the Protection of All Migrant
Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July
2003) UN Doc. A/45/49, art. 16(2).
111
 See e.g. International Covenant on Economic, Social and Cultural Rights (1990), General
Comment No. 12, the right to adequate food, UN Doc. E/C.12/1999/5, para. 20, and General
Comment No. 14 on the highest attainable standard of health, UN Doc. E/C.12/2000/4, paras. 50–1;
International Covenant on Civil and Political Rights, General Comment No. 16 on the right to pri-
vacy, family, home and correspondence, United Nations, Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies [hereinafter Compilation] HRI/GEN/1/
Rev. 7, 142.
112
  See, generally, Karel Wellens, Remedies against International Organisations (Cambridge, 2002);
ILA Committee on Accountability of International Organisations, Second Report (2000).
113
  The UN Council for Namibia, which functioned from 1967–90, is an example of a transitional
authority set up by the UN. Other examples include the United Nations Transitional Administration in
East Timor and the UN Interim Administration Mission in Kosovo.
114
  Reparations Suffered in the Service of the United Nations (Advisory Opinion) 1949 ICJ Rep. 147.
46 The Conceptual Framework

and powers granted them by their constitutions. As such, international organizations

are obliged to fulfil in good faith any treaties to which they are a party and they are
bound by customary international law in the exercise of their powers, to the extent that
their constituting instruments and other treaties do not create lex specialis. In general,
international organizations are not bound by human rights treaties, because, with few
exceptions, they are not parties to such treaties.115 They should be considered, however,
bound by human rights norms that constitute custom or represent general principles of
law.116 Moreover, in some instances they have agreed to be governed by specific human
rights instruments.117
The Parliamentary Assembly of the Council of Europe has reflected on this issue
and decided that international organizations are subject to human rights obligations
under international law, and that it is important to hold them accountable for rights
violations.118 The Assembly observed that without such accountability, states may be
shielded from the duty to comply with their own human rights obligations by delegating
their actions to or through an international organization. There appears to be increas-
ing support for the Assembly’s view. The ICJ has said of the UN that it would ‘hardly
be consistent with the expressed aim of the Charter to promote freedom and justice for
individuals and with the constant preoccupation of the UN to promote this aim’, not to
afford a ‘judicial or arbitral remedy’ for misconduct.119 While, as Wellens notes, ‘there
has been for years a reluctance by international organizations to acknowledge in explicit
terms a legal obligation to comply with human rights, there is certainly a recent trend by
these actors to incorporate, admittedly to varying degrees, protection of human rights
into their operational guidelines and directives’.120
The law may have progressed, but there remain major procedural obstacles to obtain-
ing effective remedies for the wrongdoing of an international organization or its agents.
No appropriate venue may have jurisdiction, standing may be restricted and interna-
tional organizations generally have immunity from national courts. It is also unclear in
many cases who is the appropriate defendant. Peacekeeping operations are particularly

115
  The European Union is an exception in this regard; it is party to the United Nations Convention
on the Rights of People with Disabilities and it is in negotiations about becoming a party to the European
Convention on Human Rights.
116
  See the Final Report of the ILA Committee on Accountability of International Organisations,
expressing the view that international organizations should observe human rights obligations and appli-
cable rules of international humanitarian law when engaging in actions sensitive to human rights. The
Committee also recognized that, as a general principle of law and as a basic international human rights
standard, the right to a remedy also applies in relation to international organizations. ILA, Report of the
Seventy-first Conference, Berlin, 2004 (London, International Law Association, 2004), ‘Accountability
of International Organisations: Final Report’ 164–234, 168–170, 207.
117
  As one example, the advisory panels created to monitor the actions of the United Nations Interim
Administration Mission in Kosovo (UNMIK) and the European Union Rule of Law Mission in Kosovo
(EULEX) are authorized to apply core global human rights treaties and the European Convention on
Human Rights. UNMIK Regulation No. 2006/12 of 23 March 2006 on the Establishment of the
Human Rights Advisory Panel; Human Rights Review Panel, 2012 Annual Report, 39. While the
normative jurisdiction is broad, the findings are non-binding.
118
  Parliamentary Assembly Resolution, 1979 (31 January 2014) ‘Accountability of International
Organisations’. For the background study leading to the resolution, see:  Report of Mr Jose Maria
Beneyto, ‘Accountability of international organisations for human rights violations’, Parliamentary
Assembly Doc. 13370, 17 December 2013. See also ILA, ‘Report of the Seventy-first Conference,
Berlin, 2004 (London, International Law Association, 2004)  ‘Accountability of International
Organisations: Final Report’.
119
  Effects of Awards of Compensation made by the UN Administrative Tribunal (Advisory Opinion of
13 July 1954) [1954] ICJ Rep. 47 at 57.
120
 Wellens, supra n. 112 at 15.
 Sources and General Content of the Law of Remedies 47

complex, because the national authorities usually maintain authority over their nation-
als but reject liability for the acts their nationals commit when working for an inter-
national organization.121 Many organizations, including the UN High Commissioner
for Refugees, have no procedure for claims to be brought. Others take an ad hoc
approach: for example, claims between Congolese civilians and the UN during its opera-
tions there were regulated by Article 10(b) of the Status Agreement which provided for
negotiations, and eventually arbitration, concerning claims for loss or damage caused
by an act performed by a member of the Force or an official in the course of his official
duties. Observers comment that the process did not operate well in practice.122
Intergovernmental institutions devoted to economic development or monetary
stability, notably the World Bank and the International Monetary Fund, long viewed
themselves as constrained by an obligation in their mandates to make decisions purely
on ‘economic considerations’.123 As such, the Bank and the Fund rarely structure their
activities either to facilitate the protection of human rights or to prevent and punish
abuses. Gradually, however, international financial institutions have expanded their view
of what are ‘economic considerations’. Today, the institutions pay attention to broader
objectives like democratization, good governance, the rule of law, and the protection of
indigenous peoples’ and women’s rights.124 The only procedure established thus far is one
that aims to ensure compliance with the Bank’s own internal operating standards.125 The
process offers an accountability mechanism for the Bank itself, but it creates no liability
or enforcement of human rights norms. Nonetheless, the Bank accepts that sustainable
development requires at a minimum the institutionalization of concern for particularly
vulnerable populations, notably children, indigenous peoples, and women.126 The ques-
tion of redress for Bank activities, and more broadly, of other international organizations
remains open.
The UN’s International Law Commission completed a decade of work on the respon-
sibility of international organizations in 2011.127 The reports of the ILC found little

121
  G. Gilbert, ‘Rights, Legitimate Expectations, Needs and Responsibilities: UNHCR and the New
World Order’ (1998) 10 Int’l J. Refugee L. 349, 353.
122
  See Wellens, supra n. 112 at 98–9.
123
  Arts. of Agreement of the International Bank for Reconstruction and Development, opened for
signature (27 Dec. 1945) 60 Stat. 1440 TIAS No. 1502, 2 UNTS 134, as amended, 16 Dec. 1965, 16
UST 1942, TIAS N. 5929, at s. 10, Art. IV. See generally, Ibrahim Shihata, ‘The World Bank and Human
Rights: An Analysis of Legal Issues and the Record of Achievements’ (1988) 17 Den. J. Int’l L. & Pol’y 39.
124
  See e.g. World Bank Operational Manual, Operational Directive (OD) on Indigenous Peoples
4.20 (Sept. 1991); World Bank Operational Manual, Operational Policy (OP) on Involuntary
Resettlement 4.12 (Dec. 2001) (‘Bank experience indicates that involuntary resettlement under devel-
opment projects, if unmitigated, often gives rise to severe economic, social, and environmental risks’);
World Bank Operational Manual, World Bank Operational Policy (OP) on Gender and Development
4.20 (‘The objective of the Bank’s gender and development policy is to assist member countries to reduce
poverty and enhance economic growth, human well-being, and development effectiveness by address-
ing the gender disparities and inequalities that are barriers to development …’).
125
  The World Bank Inspection Panel is designed ‘to provide a formal mechanism for receiving com-
plaints from people directly affected by Bank-supported projects on the grounds of [its] failure to abide
by its own policies, including environmental and social policies, when designing, appraising, and super-
vising the implementation of projects’. See: Sabine Schlemmer-Schulte, ‘The World Bank Inspection
Panel: A Record of the First International Accountability Mechanism and its Role for Human Rights’
(1999) 6 Human Rights Br. 1.
126
  The International Bank for Reconstruction and Development, Development and Human Rights
(Washington, 1998) 20.
127
  ILC ‘Draft Articles on the Responsibility of International Organisations, adopted at the 63rd
Session’ (2011) A/66/10, para. 87, YB of the ILC, vol. II, part. 2 [hereinafter Draft IO Articles]. The
General Assembly received the draft articles and in Res. 66/100 ‘commend[ed]’ them to the attention
of international organizations without prejudice.
48 The Conceptual Framework

relevant case law and state practice; given this, the draft articles had to develop new
doctrine on the responsibility of international organizations for internationally wrong-
ful acts. The ILC did so based on the earlier articles on state responsibility and Article 3
is clear: ‘Every internationally wrongful act of an international organisation entails the
international responsibility of that organisation’.
In a similar way to the law of state responsibility, the wrongful act must be one
attributed to the organization and breach of a duty of that organization. (Article 4).
The issue of attribution is not entirely clear; the articles say nothing, for example, about
the use of force authorized by but outside the command of the organization. This issue
is likely to arise when the UN Security Council authorizes a state or group of states to
use ‘all necessary means’ against a particular state or group.128 The responsibility may
be shared129 or it may be a question of fact as to which state or organization exercised
effective control over the acts constituting the breach.130 Article 14 opts for knowledge
rather than intent as the test for shared responsibility stemming from assistance to the
actual entity committing the wrongful act: an international organization which aids or
assists a state or another organization in the commission of an internationally wrong-
ful act is internationally responsible for doing so if: (a) the former organization does so
with knowledge of the circumstances of the internationally wrongful act; and (b) the act
would be internationally wrongful if committed by that organization.
From responsibility comes a duty to provide redress. Article 31 provides that a respon-
sible organization ‘is under an obligation to make full reparation for the injury caused
by the internationally wrongful act’. Injury is defined to include any damage, whether
material or moral, caused by the internationally wrongful act of the organization. Like
the ILC articles on state responsibility, international organizations are also under a sepa-
rate duty to cease the breach and ensure it is not repeated (Article 30). Reparation for
injury is foreseen in the form of restitution, compensation and satisfaction, with the aim
of full reparation, following the articles on state responsibility.
Enforcement of the obligation of international organizations to afford reparation for
wrongful acts depends on member states making this possible. The draft articles foresee
this problem in Article 40, which requires the responsible international organization
to take all appropriate measures in accordance with its rules to ensure that its members
provide it with the means for effectively fulfilling its obligations to provide redress.
The main problems for victims of human rights violations seeking accountability of
IOs are not solved by the draft articles. Article 33 of the draft provides that beneficiar-
ies of the remedial obligation are states and other organizations or the international
community as a whole. The omission of individuals and groups is clearly intentional,
especially in the light of Article 45 of the draft articles, which contains basic norms of
diplomatic protection on nationality of claims and exhaustion of local remedies.
The draft articles thus fail to address the critical issues of forum and venue in light
of the law on immunities.131 In practice, the UN has accepted tort claims by private
litigants in matters concerning property rights, libel or slander, and false imprisonment.
An internal Tort Claims Board, made up of five members of the secretariat, reviews
claims that are not settled by the Office of Legal Affairs (because they exceed a ceiling

128
  Examples include the UN authorization for NATO to use all necessary means in Libya.
129
  See Article 17 of the Draft IO Articles, supra n. 127.
130
  Article 7 of the Draft IO Articles refers to the test of effective control to determine when the acts
of organs of a state or another international organization should be attributed to another organization.
131
  Headquarters agreements and agreements on peacekeeping generally provide for immunity from
claims in domestic courts, as does the general treaty on the immunity of international organizations.
 Sources and General Content of the Law of Remedies 49

of US$5000) and for which the UN is not insured.132 Internal disputes over breaches of
employees’ rights are handled differently, usually by administrative action through one of
the existing international administrative tribunals.133 In 1993, the UN General Assembly
called for a comprehensive review of the UN system for the administration of justice, in
order to provide a just, transparent, simple, impartial and efficient system of internal justice
at the Secretariat.134 A subsequent task force called for a complete reform and proposed crea-
tion of a less formal mechanism, such as through the office of an ombudsman.135
Although internal modes of redress provide some accountability, most of them do
not result in binding decisions and they are devoid of means of enforcement. One excep-
tion is the European Union (EU) where the EU’s Charter of Fundamental Rights Union
is legally binding.136 No specific complaint procedure exists for human rights violations,
but the two direct remedies of an annulment action and the action for damages are appli-
cable. The Court of Justice of the European Union (ECJ) thus can test the human rights
conformity of activities of the institutions and bodies of the Union and of EU member
states when they act within the scope of Union law.
The EU Charter of Fundamental Rights Article 41 contains a general provi-
sion on redress against Community institutions, as part of the citizens’ right to good
administration:
Every person has the right to have the Community make good any damage caused by its institu-
tions or by its servants in the performance of their duties, in accordance with the general principles
common to the laws of the member states.
Several following articles create other potential avenues of redress. Article 43 con-
cerns the Ombudsman of the Union and gives the right to any citizen of the Union and
any natural or legal person residing or having its registered office in a Member State to
refer to the Ombudsman cases of maladministration in the activities of the Community
institutions or bodies. Only the ECJ and the Court of First Instance, acting in their judi-
cial role, are exempt from this possible reference.137 Article 44 provides that any citizen

132
 Wellens, supra n. 112 at 41; see also ‘Report of the Secretary, General Procedures in place for
implementation of Article VIII, section 29, of the Convention on the Privileges and Immunities of the
United Nations’ (7 April 1995).
133
  Some three dozen organizations recognize the competence of the ILO Administrative Tribunal.
See Section 5.5 infra.
134
  Res. 47/226 (8 April 1993). Criticisms include the failure of UNAT and the ILOAT to hold
oral hearings and some questions as to independence of members of the tribunals. See: M. Singer,
‘Jurisdictional Immunity of International Organisations:  Human Rights and Functional Necessary
Concerns’, (1995) 36 Va. J. In’tl L. 53, 155. Another problem related to due process results from the
decision of the GA in Res. 50/54 of 29 Jan. 1996 to eliminate appellate review by the ICJ. Only a limited
review now exists in regard to the ILOAT.
135
  See A/55/57 ‘Report on the Administration of Justice at the United Nations presented by the
Joint Inspection Unit’ (March 2000) Annex III.
136
  The Treaty of Lisbon, which entered into force 1 December 2009, amends the EU’s two core treaties,
the Treaty on European Union and the Treaty establishing the European Community, and incorporates
the Charter of Fundamental Rights in Article 6 (‘The Union recognises the rights, freedoms and principles
set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at
Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.’) 2007 OJ C-306/1.
137
  The Ombudsman is empowered to receive and make inquiries about complaints that are filed,
or to make inquiries on his own initiative, except where the alleged facts are or have been the subject of
legal proceedings. If a case of maladministration is found, the matter is referred to the institution con-
cerned. After receiving the views of the institution, the Ombudsman forwards a report to the European
Parliament and to the institution in question. The person who filed the complaint is also informed of
the outcome. On 19 June 2001, the current Ombudsman announced that he had begun an investiga-
tion into possible racism in hiring employees for the EU bodies, based upon a complaint from a Dutch
citizen. ‘Bias Inquiry Set by EU Watchdog’, International Herald Tribune, (20 June 2001), 4.
50 The Conceptual Framework

of the Union and any natural or legal person residing or having its registered office in
a member state has the right to petition the European Parliament. Finally, Article 46
extends the right of diplomatic or consular protection on behalf of Union citizens to any
member state of the Union when the injury to the individual takes place in a state where
the individual’s state of nationality is not represented. Together these provisions establish
potential approaches to obtaining remedies for harmful and wrongful acts committed by
the Community or its agents, a non-member state, or a private party.138
Outside the EU, immunity remains an almost insurmountable hurdle. Immunity
helps shield international organizations from unwarranted pressure from the member
states and allows them to carry out their mission, but it also deprives victims of any
means of obtaining redress. The case of Mothers of Srebrenica v. The Netherlands and the
UN, sought to establish the responsibility of the Netherlands and the United Nations
for failing to prevent the 1995 Srebrenica massacre. In 2012, the Dutch Supreme Court
ruled that the Dutch courts could not hear the claim against the United Nations, because
the United Nations ‘enjoys the most far-reaching immunity from jurisdiction, in the
sense that it cannot be summoned to appear before any domestic court in the countries
that are party to the [European human rights] Convention’.139 The European Court
of Human Rights subsequently declared inadmissible an application brought against
the Netherlands complaining that its courts had declined jurisdiction over the United
Nations. The European Court called the application manifestly ill-founded, stating that
‘the Convention cannot be interpreted in a manner which would subject the acts and
omissions of the Security Council to domestic jurisdiction without the accord of the
United Nations’.140 The Court found that the risk of allowing individual states to inter-
fere with the mission of the United Nations and the Security Council meant that the
Convention could not act to limit United Nations immunity.141
Waiver of immunity is not an adequate option. The UN often declines to waive its
immunity, as it did in response to attempts to hold it accountable for a deadly cholera
outbreak brought into Haiti by UN agents.142 It has similarly asserted immunity in
regard to the actions of peacekeepers in Bosnia143 and UNMIK in Kosovo.144 Without
waiver, it is virtually impossible for individuals to hold an international organization
accountable because no international tribunal is open to such claims.
Short of waiver, UNMIK and the North Atlantic Treaty Organisation (NATO) oper-
ating in Kosovo have unilaterally accepted to be bound by the provisions of a number of
human rights treaties and to submit to monitoring procedures. In 2004, UNMIK and
the Council of Europe concluded an agreement concerning the Framework Convention for

138
  See the further discussion in Section 3.2.3 infra.
139
  Supreme Court of the Netherlands, Mothers of Srebrenica v. Netherlands and United Nations,
judgment of 13 April 2012, International Law in Domestic Courts (ILDC) 1760 (NL 2012), para. 4.2.
140
  Stitching Mothers of Srebrenica and Others v.  The Netherlands App. No. 65542/12 (ECtHR,
11 June 2013).
141
  Ibid at paras. 152–54. The Court used a similar form of reasoning in Behrami and Behrami
v. France and Saramati v. France, Germany and Norway. The first complaint concerned a group of chil-
dren encountering undetonated NATO bombs; one bomb exploded, killing a boy and seriously injur-
ing another. Saramati concerned the arrest of the applicant under the authority of the international
organization. Behrami and Behrami v. France; Saramati v. France, Germany and Norway, App. nos 71412
and 78166/01, (ECtHR 2007) [GC] (inadmissibility).
142
 The Guardian, ‘UN will not compensate Haiti cholera victims, Ban Ki-Moon tells president’
(21 February 2013).
143
  Behrami and Saramati, supra n. 141.
144
  See UNMIK Regulation No. 1999/1 of 25 July 1999 on the Authority of the Interim Admini­
stration in Kosovo.
 Sources and General Content of the Law of Remedies 51

the Protection of National Minorities (ETS No. 157), which requires UNMIK to submit
reports to the Committee of Ministers. The Committee of Ministers in turn may address
recommendations to UNMIK. Similar agreements are in place regarding visits of the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) to places where persons are deprived of their liberty in Kosovo by
UNMIK and NATO.
In some circumstances it may still be possible to obtain a remedy from the states imple-
menting decisions of international organizations. The European Court of Human Rights,
in Nada v.  Switzerland,145 held Switzerland responsible for implementing binding UN
sanctions, because the member states retained some discretion to remedy the deficiencies
in human rights protection without being in violation of their obligations arising from
the United Nations Charter. The Court insisted that Switzerland ‘should have persuaded
the Court that it had taken—or at least had attempted to take—all possible measures to
adapt the sanctions regime to the applicant’s individual situation’.146 In Kadi and
Al Barakaat,147 the European Court of Justice more ambitiously annulled the EC Regula­
tion implementing the UN Security Council sanctions regime against Mr Kadi and the
Al Barakaat Foundation for infringement of fundamental rights.
Options for increased accountability in the future could include holding states responsible
for the actions of organizations whose decisions the states are implementing, or directly limit-
ing the immunity of the organizations, at least where immunity is not essential for the organi-
zation’s functioning or in cases of severe human rights violations. Alternatively, the jurisdiction
of international courts could be expanded to allow actions against international organizations.
At the least, internal accountability mechanisms need to improve. The preferable option
would be for organizations to create an external and independent claims commission. Taking
up some of these options, in a resolution adopted at the beginning of 2014,148 the Council of
Europe’s Parliamentary Assembly invited all Council of Europe member states to ensure that
the international organizations of which they are members are subject, as appropriate, to bind-
ing mechanisms to monitor their compliance with human rights norms and to ensure that
their decisions are enforced. They should ratify human rights instruments, where this is pos-
sible, and should formulate clear guidelines regarding the waiver of immunity by international
organizations or otherwise limiting the breadth of the immunity they enjoy before national
courts, in order to ensure that the necessary functional immunity does not shield them from
scrutiny regarding, in particular, their adherence to non-derogable human rights standards.

3.1.3 Remedies and business enterprises

With growing economic interdependence and deregulation, business entities have also
emerged as powerful bodies149 capable of major contributions to sustainable development

145
  Nada v. Switzerland, App. No. 10593/08, (ECtHR, 12 September 2012).
146
  Ibid, para. 196.
147
  ECJ, Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International
Foundation v. Council of the European Union [2008] ECR I-6351; after Mr Kadi was relisted by the EU
Council in a new Regulation, he brought a second successful challenge to the European Court of Justice.
See Joined Cases C-584/10 P, C-593/10 P and C-595/10 P. Mr Kadi was subsequently ‘delisted’ by the
Sanctions Committee.
148
  Parliamentary Assembly, Resolution 1979 (31 January 2014) ‘Accountability of International
Organisations’.
149
  A 2000 study found that the majority (51) of the 100 largest economies of the world are business
entities. See S. Anderson and J. Cavanagh, The Top 200: The Rise of Global Corporate Power (2000).
52 The Conceptual Framework

or of inflicting great harm. More government operations from education to reconstruc-

tion in Iraq and the running of prisons have been partially privatized. These developments
have led to increasing efforts to impose on non-state actors a duty to respect human
rights and afford remedies when they do not, well beyond the context of international
criminal law.
Efforts to establish and enforce international legal obligations on corporations and
other business entities have been mounted with increasing frequency since the era of
governmental deregulation and privatization began in the 1980s.150 These efforts have
confronted the traditional doctrine that international human rights obligations govern
only states151 which must ‘respect’ and ‘ensure’ rights and ‘take steps’ to achieve their
realization.152 The imposition of state obligations in the field of human rights does not
necessarily mean, however, that non-state actors, including business entities, are inevitably
exempt from accountability for human rights violations. States retain principal control
over international law-making and have concluded the instruments that guarantee human
rights and set forth state obligations. States may similarly develop international law impos-
ing corporate obligations that give rise to responsibility for their breach. More difficult is
the question of whether courts may impose responsibility in the absence of positive law.
Few positive norms of corporate accountability have emerged, because corporate
conduct is deemed responsible predominately to market forces in the private sector,
although regulations to limit monopolies and fraudulent activities are long-standing. In
contrast, human rights are considered to be located in the public realm, imposing obli-
gations for their protection and promotion exclusively on the state. The public-private
division was never as wide as some perceive and the division has become increasingly
blurred over the past three decades as traditional public functions153 have been trans-
ferred to corporate actors,154 even during periods of armed conflict. Nonetheless, the
multinational corporation155 has been largely immune from international regulation.

150
 For a discussion of earlier attempts to develop norms on corporate behaviour, see Steven
R. Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, (2001) 111 Yale L. J.
443, 452–454; see also:  Stephen Bottomley & David Kinley, (eds.), Commercial Law and Human
Rights, vii (Ashgate, 2002).
151
 Lauterpacht, writing in the mid-twentieth century observed that ‘[t]‌he orthodox positiv-
ist doctrine has been explicit in the affirmation that only States are subjects of international law’. H.
Lauterpacht, ‘The Subjects of the Law of Nations’ (1947) 63 Law Quarterly Rev. 438, 439; but see
Restatement of the Foreign Relations Law of the United States (Third) (1987) Section 101.
152
  See and compare Articles 2 of the International Covenant on Civil and Political Rights, UNGA
Res. 2200A (XXI) 21 GAOR Supp. 16, 52, UN Doc. A/6316 (1966), 999 UNTS 171 and the
International Covenant on Economic Social and Cultural Rights, UNGA Res. 2200A (XXI), 21 GAOR
Supp. 16, 49, UN Doc. A/6316 (1966), 993 UNTS 3.
153
  See Tara Lee, ‘Redefining Inherently Governmental: The Push to Redefine the Function and its
Consequences’, (2008) 4 Journal of International Peace Operations 9.
154
  See e.g., Martha Minow, ‘Public and Private Partnerships: Accounting for the New Religion’,
(2003) 116 Harv. L. Rev. 1229.
155
  From 1969 to 1990, the number of multinationals headquartered in the top fourteen industrial
countries more than tripled, increasing from around 7,000 to almost 24,000. By 1994, a conservative
estimate of the number of multinational corporations was 37,000, involving more than 200,000 for-
eign subsidiaries or affiliates. The economic consequences are immense. In 1985, total sales of the 350
largest multinational corporations accounted for one-third of the combined gross national products of
industrialized countries. By 1990, world goods and services that reach consumers after crossing borders
or through local companies whose ownership and financing originates elsewhere, totalled $5.5 trillion.
Almost half of all multinationals have their parents in only four countries: the United States, Germany,
Japan, and Great Britain. Multinationals based in these four countries account for approximately sev-
enty percent of all foreign direct investment. All of the largest 100 multinational corporations have
their parents in developed countries. Eric W. Orts, ‘The Legitimacy of Multinational Corporations’ in
Lawrence E. Mitchell (ed.), Progressive Corporate Law 247–248 (Boulder, 1995).
 Sources and General Content of the Law of Remedies 53

What regulation there is remains mostly lege ferenda.156 Even within domestic legal sys-
tems, holding multinational corporations accountable for human rights violations has
proved difficult.157
The overall picture is one of relative freedom of economic movement. Bilateral invest-
ment treaties (BITs) have proliferated, pledging signatory states to recognize each other’s
respective legal business forms and permit their companies to establish subsidiaries,
financial investments, joint ventures, and franchises. BITs provide basic rights to foreign
businesses, including protection against expropriation and guarantees of most-favoured
nation status, and identify the accepted dispute resolution mechanisms. Corporations are
also recognized in some human rights instruments as having internationally-guaranteed
rights.158 In addition to the network of BITs and limited human rights protections, the
World Trade Organisation (WTO), has adopted Trade-Related Investment Measures
(TRIMs) that limit local content or export level requirements for foreign-owned or
foreign-controlled firms or joint ventures.
Developing countries and human rights activists have sought an international regula-
tory framework for multinationals at least since 1970, but there are few concrete results,
apart from non-binding declarations like the Organisation for Economic Co-operation
and Development (OECD) Guidelines for Multinational Enterprises,159 the United
Nations Draft Code on Transnational Corporations, the UN Global Compact,160

156
  See e.g., Danwood Mzikenge Chirwa, ‘The Long March to Binding Obligations of Transnational
Corporations in International Human Rights Law’, (2006) 22 S. Afr. J. on Hum. Rts 76.
157
  Several explanations have been offered about the nature of the corporate form that limit effective
human rights regulation of corporate behaviour. Most importantly, the distinct legal personality of a
corporation allows it to allocate risks associated with activities by forming legally separate enterprises
connected by cross-shareholding and common directorships, or by establishing subsidiary and hold-
ing company relationships. This makes ‘[t]‌racing a unique nationality of a corporation . . . difficult, if
not impossible’. Eric W. Orts, supra n. 155 at 247. The distinct legal status enjoyed by each company,
regardless of its relationship to a parent or other enterprises in the group, also allows for the avoid-
ance of responsibility for actions within a corporate group as well as the invocation of legal doctrines,
such as forum non conveniens, to avoid legal responsibility. See Stephen Bottomley, ‘Corporations and
Human Rights’, in Stephen Bottomley & David Kinley (eds.), Commercial Law and Human Rights
51–55 (Ashgate, 2002).
158
  The 1950 European Convention on Human Rights and Fundamental Freedoms has applied in
some instances to protect the rights of corporations, for example, in respect to property and freedom of
expression. See, e.g., Case Of Verein Gegen Tierfabriken Schweiz (Vgt) v. Switzerland ECtHR 2001-VI,
28 June 2001; Case of Pine Valley Developments Ltd and Others v. Ireland (1991) Series A no. 222; Matos
e Silva, Lda., and Others v. Portugal 1996-IV.
159
 Guidelines for Multinational Enterprises, DAFFE/IME/WPG (2000) 15/FINAL (31 Oct.
2001), were first adopted by the Organisation for Economic Co-operation and Development (OECD)
in 1976, (1976) 15 ILM 969 and were revised in 2000, (2001) (40 ILM 237). The OECD Guidelines
provide voluntary principles and standards for responsible business conduct consistent with applicable
laws. In 2008, the U.N. Special Representative on Business and Human Rights expressed reservations
about the OECD Guidelines. He stated that the current OECD ‘human rights provisions not only lack
specificity, but in key respects have fallen behind the voluntary standards of many companies and busi-
ness organisations’. He concluded that the revision of the Guidelines was required. Protect, Respect and
Remedy: a Framework for Business and Human Rights, UN Doc. A/HRC/8/5 (7 April 2008),13.
160
  The Global Compact is the voluntary corporate citizenship initiative of the United Nations
Secretary-General that brings together companies, labour, United Nations agencies and civil society to
support ten principles derived from key international instruments including the Universal Declaration
of Human Rights. The Global Compact is a multi-stakeholder network with over 1,700 formal partici-
pants. The Global Compact has identified responsibilities of business in connection with its first two
principles:
(a) Principle One: Businesses should support and respect the protection of internationally pro-
claimed human rights;
(b) Principle Two: Businesses should make sure that they are not complicit in human rights
abuses.
54 The Conceptual Framework

and the World Bank’s Guidelines on the Treatment of Foreign Direct Investment. The
OECD Guidelines are typical in specifying that they are ‘voluntary and not legally
enforceable’.161
Some human rights treaties clearly extend to private conduct, including the Optional
Protocol on the Sale of Children, Child Prostitution and Child Pornography to the
Convention on the Rights of the Child.162 Its Article 3 specifically encourages states to
provide for the liability of legal persons. Other treaties establish private actor liability for
acts of genocide,163 slavery, and war crimes,164 without distinguishing between natural
and juridical individuals. There is no compelling reason why corporations that engage
in the slave trade or commit acts of genocide or war crimes would be as a matter of law
exempt from liability. As Harold Koh has argued, it makes no logical sense to hold cor-
porations liable under European law for anticompetitive behaviour, but not for slavery.
Corporations, like states and individuals should be held liable, because otherwise indi-
viduals may be able to immunize themselves from liability for violating human rights
simply by adopting the corporate form.
As private sector power has increased in recent years, there have been renewed efforts
to develop norms to govern the activities of transnational corporations.165 In 2005,
the UN Secretary-General appointed a Special Representative on Human Rights and
Transnational Corporations and Other Business Enterprises166 who issued a cautious
interim report in 2006,167 addressing the question of corporate responsibility:
65. There are legitimate arguments in support of the proposition that it may be desirable in some
circumstances for corporations to become direct bearers of international human rights obliga-
tions, especially where host governments cannot or will not enforce their obligations and where
the classical international human rights regime, therefore, cannot possibly be expected to function
as intended. Moreover, there are no inherent conceptual barriers to states deciding to hold corpo-
rations directly responsible, either by extraterritorial application of domestic law to the operations

161
  OECD Guidelines, para. 1.
162
  UNGA Res. 263/54, Optional protocols to the Convention on the Rights of the Child on the
involvement of children in armed conflict and on the sale of children, child prostitution and child por-
nography, adopted 25 March 2000, in force 18 January 2002.
163
  Under Article 4 of the Genocide Convention, a private corporation can commit or aid and abet
in genocide. Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.
164
  Common Article 3 of the Geneva Convention binds all parties to an armed conflict, including
non-state actors. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
(1949) 75 UNTS 287 (1950), art. 3; Geneva Convention (III) Relative to the Treatment of Prisoners of
War (1949) 75 UNTS 135 (1950), art. 3.
165
 For discussion of recent efforts to ensure corporate accountability, see, e.g. generally Larry
Catá Backer, ‘Multinational Corporations, Transnational Law: The United Nations’ Norms on the
Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility in
International Law’, (2006) 37 Colum. Hum. Rts L. Rev. 287; Brandon Prosansky, ‘Mining Gold in
a Conflict Zone: The Context, Ramifications, and Lessons of AngloGold Ashanti’s Activities in the
Democratic Republic of the Congo’, (2007) 5 Nw. J. Int’l Hum. Rts 236; Emeka Duruigbo, ‘Corporate
Accountability and Liability for International Human Rights Abuses: Recent Changes and Recurring
Challenges’, (2008) 6 Nw. J. Int’l Hum. Rts 222; Debbie Johnston, ‘Lifting the Veil on Corporate
Terrorism: The Use of the Criminal Code Terrorism Framework to Hold Multinational Corporations
Accountable for Complicity in Human Rights Violations Abroad’, (2008) 66 U. Toronto Fac. L. Rev. 137.
166
  Earlier, the former UN Sub-Commission on the Promotion and Protection of Human Rights
adopted controversial Norms on the Responsibilities of Transnational Corporations and Other Business
Enterprises with regard to Human Rights, Res. 2003/16. See: David Weissbrodt & Muria Kruger, ‘Norms
on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to
Human Rights’, (2003) 97 Am. J. Int’l L. 201.
167
  Interim Report of the Special Representative of the Secretary-General on the Issue of Human
Rights and Transnational Corporations and other Business Enterprises, ‘Promotion and Protection of
Human Rights’ (2006) UN Doc. E/CN.4/2006/97.
 Sources and General Content of the Law of Remedies 55
of their own firms, or by establishing some form of international jurisdiction. But these are not
propositions about established law; they are normative commitments and policy preferences
about what the law should become that require state action for them to take effect.
In 2008, the Special Representative suggested a framework for regulating multi-
national corporations built around a state duty to protect human rights, a corporate
responsibility to respect human rights, and adequate access to remedies for those whose
rights have been violated.168 The Representative insisted that in addition to compli-
ance with national laws, the baseline responsibility of companies is to respect human
rights.169 Failure to meet this responsibility can subject companies to the courts of pub-
lic opinion—comprising employees, communities, consumers, civil society, as well as
investors—and occasionally to judicial action. To discharge the responsibility to respect
requires due diligence to become aware of, prevent and address adverse human rights
impacts.170
Increasing attention is also being given to whether and to what extent parent com-
panies should be subject to the law and jurisdiction of their home countries in relation
to their operations abroad. On the legislative front, over the last several decades, states
around the world have responded to the activities of multinational corporations and
have passed legislation designed to pressure both governments and corporations in situ-
ations in which respect for human rights is lacking. Four major legislative approaches
can be identified.
First, a law may prohibit all corporate presence in a country or trade associated with
that country when human rights are being grossly violated.171 Second, a statute can
restrict access to governmental contracts or market access unless a corporation is in
compliance with human rights norms.172 Third, a law or executive regulation can operate
directly and compel the observance of certain standards such as those related to occu-
pational safety and health.173 Finally, statutes or regulations, especially as they relate to
investment securities, can require that offshore activities that have potential impact on
human rights be fully disclosed.174
Some states, notably the United States, also allow individuals alleging harm to reach
the international activities of multinationals through civil litigation.175 The United States

168
  Report of the Special Representative of the Secretary-General on the Issue of Human Rights and
Transnational Corporations and other Business Enterprises ‘Protect, Respect and Remedy: a Framework
for Business and Human Rights’, UN Doc. A/HRC/17/31 Annex [hereinafter Ruggie Final Report].
See also the Special Representative’s follow-up report, ‘Guiding Principles on Business and Human
Rights: Implementing the United Nations ‘Protect, Respect, and Remedy Framework’ (2011) HR/
PUB/11/04 [hereinafter Ruggie Implementation Report].
169
 Ruggie Final Report para. 54. 170
  Ibid, para. 56.
171
  See e.g., Comprehensive Anti-Apartheid Act of 1986, Pub. L. 99-40, 100 Stat. 1086, 22 U.S.C.
§§5000-116 et seq. (Supp. IV 1986) (now repealed).
172
  See e.g., Los Angeles, Cal. Admin. Code div. 10, ch. 1, art. V (1986) (requiring city to refuse con-
tracts to companies doing business with apartheid-era South Africa).
173
  See e.g., Exec. Order 13, 126 Prohibition of Acquisition of Products Produced by Forced or
Indentured Child Labor, 64 Fed. Reg. 32383 (1999).
174
  See, e.g., Corporate Code of Conduct Bill 2000 (Cth) proposed Australian law requiring Australian
Companies operating overseas to report to the Australian Securities and Investment Commission on,
inter alia, social, ethical and environmental policies and any breach of host state human rights laws. See
generally Cynthia Williams, ‘The SEC and Corporate Social Transparency’, 112 Harv. L. Rev. 1197
(1999).
175
  Even without a statutory grant of jurisdiction, common law courts may hear corporate liability
cases under the common law theory of transitory tort. See, e.g. Mostyn v. Fabrigas, 1 Cowp. 161 (1774),
quoted in McKenna v. Fisk, 42 U.S. (1 How.) 241, 248, 11 L. Ed. 117 (1843); McKenna v. Fisk, 42 U.S.
(1 How.) 241, 11 L. Ed. 117; Dennick v. Railroad Co., 103 U.S. 11, 26 L. Ed. 439 (1880).
56 The Conceptual Framework

Alien Tort Statute gives courts power to hear civil claims by foreign citizens for injuries
caused by actions in violation of the law of nations or a treaty of the United States.
Companies often object to this jurisdiction, arguing that subjecting parent companies
to their home jurisdiction for alleged human rights abuses against claimants of the host
country raises questions of respect for the national sovereignty of the host country and
poses problems for the conduct of foreign relations. Supporters of the law respond that
home country regulation can provide an effective means of protecting human rights in
situations where accountability gaps exist.
Over 140 cases have been brought against corporate defendants under the US Alien
Tort Statute (ATS). Many such cases have been dismissed on jurisdictional, political, or
factual grounds, or under the forum non conveniens doctrine. Other doctrines of judicial
abstention, such as the Act of State doctrine,176 have proven less of a litigation barrier.177
Nonetheless, given the numerous dismissals and several settlements that have taken
place before trial, commentators and litigants have questioned the utility and effective-
ness of the ATS.178
One reason why ATS cases often do not succeed is the stringent criteria the Supreme
Court established in the case of Sosa v. Alvarez-Machain179 for proving the law of nations.
Failure to establish the existence of a binding norm means there is no subject matter
jurisdiction under the ATS. Even after the existence of a norm is shown, a majority on
the Supreme Court advised lower courts to exercise restraint in ‘applying internationally
generated norms’ and leave the decision to create novel forms of liability ‘to legislative
judgment in the great majority of cases’.180 Sosa left open the controversial question
of whether the ATS can be invoked against multinational corporations at all,181 and if
so, the extent to which liability may be based on a theory of complicity with foreign
governments that have committed human rights abuses. Instead, the Court said that
‘the determination whether a norm is sufficiently definite to support a cause of action’
is ‘related [to] whether international law extends the scope of liability for a violation of
a given norm to the perpetrator being sued, if the defendant is a private actor such as a

176
  A long-standing common law principle, the act of state doctrine precludes courts from evaluating
the validity of actions that a foreign government has taken within its own borders. See W.S. Kirkpatrick
& Co. v. Environmental Tectonics Corp. 493 U.S. 400, 409, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990);
Sabbatino, 376 U.S. at 401, 84 S.Ct. 923; Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83,
42 L.Ed. 456 (1897); see also Timberlane Lumber Co. v. Bank of America, 549 F.2d 597, 605-07 (9th
Cir.1976).
177
  Provincial Gov’t Of Marinduque v. Placer Dome, Inc., Barrick Gold Corp., 582 F.3d 1083 (9th
Cir. 2009) (holding that because none of the referenced conduct by the Philippine government was
essential to any of the plaintiff’s causes of action, the state court, and not the district court, had proper
subject-matter jurisdiction over the allegations of corporate human rights and environmental law
violations).
178
  Compare Anne-Marie Burley, ‘The Alien Tort Statute of and the Judiciary Act of 1789: A Badge
of Honor’, 83 Am. J. Int’l L. 461 (1989) with Curtis A. Bradley & Jack L. Goldsmith, ‘Rights Case Gone
Wrong: A Ruling Imperils Firms and U.S. Diplomacy’, Wash. Post, 19 April 2009.
179
  In its first ATS decision, Sosa v. Alvarez-Machain, the U.S. Supreme Court determined that cus-
tomary international law norms must be ‘specific’, ‘obligatory’, and ‘universal’. Sosa v. Alvarez-Machain,
542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718(2004).
180
 Ibid.
181
  ‘A related consideration is whether international law extends the scope of liability for a violation
of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation
or individual. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-795 (C.A.D.C.1984)
(Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates inter-
national law), with Kadic v. Karadzíc, 70 F.3d 232, 239-241 (C.A.2 1995) (sufficient consensus in
1995 that genocide by private actors violates international law)’. Sosa, supra n. 179. For a commentary,
see: Ralph Steinhardt, ‘Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future
of Human Rights Litigation in U.S. Courts’, (2004) 57 Vand. L. Rev. 2241, 2283–2287.
 Sources and General Content of the Law of Remedies 57

corporation or individual’. The Court noted pending class actions against corporations
alleged to have participated in, or abetted, human rights violations abroad and declared
that ‘[i]‌n such cases, there is a strong argument that federal courts should give serious
weight to the Executive Branch’s view of the case’s impact on foreign policy’.182
Given divisions among the lower courts on the issue of corporate liability, the US
Supreme Court appeared ready to address the matter in the case of Esther Kiobel et al. v.
Royal Dutch Petroleum Co.,183 after the Second Circuit found no liability for defendants
allegedly aiding and abetting the Nigerian government in committing human rights
abuses. Although the Second Circuit opinion in Kiobel insisted that corporations are not
inherently immune from liability under the ATS, it found that the law today does not
impose liability on the facts of the case. The Kiobel court also noted that ‘[n]‌othing in
this opinion limits or forecloses suits under the ATS against a corporation’s employees,
managers, officers, directors, or any other person who commits, or purposefully aids and
abets, violations of international law’.184 The Supreme Court reviewed the Kiobel judg-
ment, but avoided the issue of corporate liability, holding only that cases lacking any link
with the United States are outside the territorial scope of the ATS.185
The work of the UN Special Representative on Business and Human Rights suggests
that the emerging restrictions on corporate liability may be wrong, if indeed the viola-
tions were committed as part of corporate policy. As part of their duty to protect, states
are required to take appropriate steps to investigate, punish and redress corporate-related
abuse of the rights of individuals within their territory and/or jurisdiction—in short, to
provide access to justice.186 Without such steps, the state duty to protect could be ren-
dered weak or even meaningless.
Remedies may be provided through judicial, administrative, legislative or other
appropriate means.187 Even if states are not required to regulate or adjudicate the extra-
territorial activities of businesses incorporated in their jurisdiction, they are not pro-
hibited from doing so, as long as there is a recognized jurisdictional basis and an overall
reasonableness test is met,188 that is, where the actor or victim is a national, where the
acts have substantial adverse effects on the state, or where specific international crimes
are involved.189
In respect to access to justice and substantive redress, the Guiding Principles establish
as a foundational principle that ‘As part of their duty to protect against business-related

182
  For the divided lower court views, see: Presbyterian Church of Sudan v. Talisman Energy Inc., 244
F.Supp.2d 289, 320-21 (S.D.N.Y. 2003) (‘U.S. courts have consistently permitted [ATS] suits to pro-
ceed based on theories of conspiracy and aiding and abetting.’); Doe v. Unocal Corp., 395 F.3d 932 (9th
Cir. 2002); Khulumani v. Barclay Nat’l Bank Ltd, 504 F.3d 254 (2d Cir. 2007).
183
  621 F.3d 111 (2d. Cir. 2010), cert. granted 17 October 2011. 184
  Ibid at 149.
185
  Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).
186
  Report of the Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises (22 April 2009) A/HRC/11/13.
187
  Ibid at 21, para. 87.
188
  Report of the Special Representative of the Secretary-General, John Ruggie, on the issue of human
rights and transnational corporations and other business enterprises. ‘State obligations to provide access
to remedy for human rights abuses by third parties, including business: an overview of international and
regional provisions, commentary and decisions’, (15 May 2009) A/HRC/11/13/Add.1.
189
 The Human Rights Committee, which oversees states’ compliance with the International
Covenant on Civil and Political Rights, has ruled that states must ‘redress the harm caused by such acts
by private persons or entities’. UN Human Rights Comm., Gen. Cmt. No. 31, UN Doc. CCPR/C/21/
Rev.1/Add.13, para. 8 (29 March 2004) (emphasis added). Similarly, the Convention on the Elimination
of All Forms of Racial Discrimination obliges states to remedy ‘any acts of racial discrimination’, and the
Race Committee established under the Convention has consistently ruled that this provision includes
the acts of corporations. Concluding Observations for the United States, 2008, CERD/C/USA/CO/6,
para. 30.
58 The Conceptual Framework

human rights abuse, States must take appropriate steps to ensure, through judicial,
administrative, legislative or other appropriate means, that when such abuses occur
within their territory and/or jurisdiction those affected have access to effective remedy’.190
Remedies may include apologies, restitution, rehabilitation, financial or non-financial
compensation and punitive sanctions (whether criminal or administrative, such as
fines), as well as the prevention of harm through, for example, injunctions or guarantees
of non-repetition.
Clearly, the law on corporate liability for human rights and humanitarian law viola-
tions lacks order and precision. Courts are split over whether corporations have any
accountability under customary international law, or whether that law remains applica-
ble only to states or, in some instances, individuals. There are strong efforts by activists
and victims to extend liability and perhaps an even stronger response by business seeking
to avoid legal obligations. Numerous voluntary codes and soft law declarations have
been concluded, but hard law on corporate obligations continues to emerge only slowly.

3.2  Remedies in International Human Rights Instruments

The legal basis of responsibility for human rights violations derives from breach of a
human rights treaty or a norm of customary international law.191 There are over one
hundred human rights treaties adopted globally and regionally. Nearly all states are par-
ties to some of them and several human rights norms have become part of customary
international law. Yet, like all law, human rights law is violated. It has not ended govern-
mental oppression and by itself cannot prevent or remedy all human rights abuses. Many
violations are linked to long-standing political, economic, and social problems that law
alone cannot repair. Education and other broad social efforts are required to combat the
causes of human rights abuse: prejudice, ignorance, disease, poverty, greed, corruption.
Human rights law has created an international climate less willing to tolerate abuses
and more willing to support and use the institutions and organizations that have been
designed to promote and protect human rights. The rising caseload of all human rights
bodies attests to the willingness and ability of victims to bring their own complaints
against states that fail to comply with their national and international obligations.
The right to a remedy when rights are violated is itself a right expressly guaranteed by
global and regional human rights instruments.192 Most texts guarantee both the proce-
dural right of effective access to a fair hearing and the substantive right to a remedy.193

190
 Ruggie Implementation Report, supra n. 168 at para. 25.
191
 The Restatement (Third) of the Foreign Relations Law of the United States, s. 702 says that a state
violates customary international law if, as a matter of state policy, it practises, encourages, or con-
dones: (a) genocide; (b) slavery or slave trading; (c) the murder or disappearance of individuals; (d) tor-
ture or other cruel, inhuman, or degrading treatment or punishment; (e) prolonged arbitrary detention;
(f ) systematic racial discrimination; or (g) a consistent pattern of violations of internationally recog-
nized human rights.
192
  Note that in a draft of the Genocide Convention, Article XIII provided that governments respon-
sible for genocide through acts or omissions ‘shall grant to the survivors of the human group that is a
victim of genocide redress of a nature and in an amount to be determined by the United Nations’. This
provision was omitted during the final negotiations. See UN Secretary-General, Official Comments
on Article XIII of the Draft Convention on the Crime of Genocide (26 June 1947) UN Doc. E/447.
See generally C. Evans, The Right to Reparation in International Law for Victims of Armed Conflict
(Cambridge, 2012).
193
  On access to justice, see Jeremy McBride, ‘Access to Justice and Human Rights Treaties’ (1998)
17 Civil Justice Q. 235.
 Sources and General Content of the Law of Remedies 59

Some international agreements explicitly call for the development of judicial remedies
for the rights they guarantee.194 The explicit international guarantees imply that a wrong-
doing state has a primary duty to afford redress to the victim of a violation. The role of
international tribunals is subsidiary and only becomes necessary and possible when the
state has failed to afford the required relief. However, the role of the international tribu-
nal is important to the integrity of the human rights system, particularly when the state
deliberately and consistently denies remedies, creating a climate of impunity.

3.2.1 The specificity of human rights law

Human rights obligations differ from other areas of international law where treaty and
customary obligations generally are reciprocal and treaty partners confer equal benefits
on each other and accept equal duties in return. In such contractual arrangements, most
acts in breach of an obligation cause direct and usually immediate injury to the interests
of another state. The state committing the wrongful act incurs state responsibility and
the duty to make reparations for the harm caused. In contrast, human rights obligations
have ‘the purpose of guaranteeing the enjoyment of individual human beings of those
rights and freedoms rather than to establish reciprocal relations between States’.195 As the
Inter-American Court has emphasized:
modern human rights treaties in general . . . are not multilateral treaties of the traditional type con-
cluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting
States. Their object and purpose is the protection of the basic rights of individual human beings,
irrespective of their nationality, both against the State of their nationality and all other contracting
States. In concluding these human rights treaties, the States can be deemed to submit themselves
to a legal order within which they, for the common good, assume various obligations, not in rela-
tion to other States, but towards all individuals within their jurisdiction.196
Traditional inter-state responsibility for breaches of international law, designed for
reciprocal obligations, thus does not correspond exactly to the needs of the objective
human rights regime. For example, when the state committing the breach does not
directly injure another state, an issue arises of standing to make a claim. International
law responded to this problem by recognizing that certain obligations are due to the
international community as a whole.197 Human rights obligations are among these erga
omnes obligations as declared by the International Court of Justice in the Case Concerning
the Barcelona Traction, Light and Power Company, Ltd.198 As such, all states may act to
vindicate them.
State responsibility for breaches of human rights obligations particularly concerns
states participating in the legal order created by a multilateral human rights treaty. Within

194
  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 (ICCPR), Art. 2(3)(b).
195
  Inter-American Court of Human Rights, Other Treaties Subject to the Advisory Jurisdiction of the
Court (Article 64 American Convention on Human Rights). Series A No. 1 (24 September 1982).
196
  Inter-American Court of Human Rights, The Effect of Reservations on the Entry into Force of the
American Convention on Human Rights (Articles 74 and 75). Series A No. 2 (24 September 1982).
197
  The ILC considers an expanded concept of ‘injured state’ when the breach concerns a multilateral
treaty or rule of customary international law created or established for the protection of human rights
and fundamental freedoms. Every other state party to the convention or bound by the relevant rule is
deemed affected by the interests protected by human rights provisions; hence all must be considered
injured states in case of a breach of obligation. Commentary on ILC Articles on State Responsibility, pt. 2,
art. 5, para. 2(f ), Y.B. Int’l L.Comm’n, vol. II (Part II), para. 20, p. 27.
198
  Barcelona Traction, Light and Power Company, Ltd (Belgium v. Spain), supra n. 99 at 32.
60 The Conceptual Framework

the European system, the former European Commission stated that a party claiming a vio-
lation of the European Convention by another state party is not enforcing its own rights,
or the rights of its nationals, but vindicating the public order of Europe.199 Similarly, the
Inter-American Court has referred to the obligations owed by all contracting states which
have submitted themselves ‘to a legal order’ for the protection of human rights. Despite
this public policy, it is rare to find inter-state human rights complaints200 because states
often consider the political and economic costs of complaints too high in the absence
of specific injury to themselves. Accusations of human rights violations may be deemed
unfriendly acts.
A second problem in the law of state responsibility lies in the traditional right of the
injured state to take proportionate counter-measures in retaliation for a breach. It is
impossible to accept a system of counter-measures in regard to human rights obligations;
one state’s commission of torture never can justify similar brutality on the part of another
state. Instead, international human rights law relies on compliance bodies and mecha-
nisms that respect the unique character of human rights treaties. The most appropriate
of these mechanisms is the procedure that allows victims to seek remedies for the harm
they suffer from unredressed human rights violations.
The collective or erga omnes nature of human rights obligations has implications in
the area of remedies. It requires that the supervisory organs in human rights systems
ensure that the remedies afforded not only protect the individual litigant but serve to
deter violations and uphold the legal order that the treaties create. Concern for victims
not part of the litigation, as well as for potential victims, must be among the factors taken
into account in affording remedies. The traditional concept of satisfaction can be useful
in this regard with its focus on deterrence and guarantees of non-repetition.
In redressing human rights violations it is also recognized that actions against a state
differ from private party proceedings, for a number of reasons.201 First, there is the added
importance of ensuring the rule of law by institutions created in large part for that
purpose.
In a government of laws, the existence of the government will be imperiled if it fails to observe the
law scrupulously . . . For good or ill, it teaches the whole people by its example. Crime is conta-
gious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to
become a law unto himself; it invites anarchy.202
From this perspective, society as well as the individual victim is injured when state
agents violate human rights.
The denial of a remedy in human rights cases can have a particularly negative impact
on the judiciary. Continued respect for and acceptance of the exercise of judicial power
depends on preserving the perceived and actual fairness and integrity of the system.203
‘The absence of an affirmative vision of the judicial role that responds to concerns about
fairness and proper allocation of governmental power fuels the political and theoreti-
cal attack on legitimacy, which in turn contributes to a public perception of judicial
illegitimacy’.204 To develop and enhance institutional competence and legitimacy,

199
  Austria v. Italy, App. No. 788/60, 1961 Y.B. Eur. Conv. on H.R. 116 (Eur. Comm’n on H.R.). See
also European Court of Human Rights, Ireland v. United Kingdom (1978) Series A no. 25, 91.
200
  States have filed only some two dozen cases in the European human rights system, while the
Inter-American Commission has received two complaints and African Commissions on Human Rights
a single matter. No interstate complaints have been filed before the United Nations treaty bodies.
201
  Peter Schuck, Suing Government: Citizen Remedies for Official Wrongs (New Haven, 1983).
202
  Olmstead v. United States, 277 U.S. 438, 485 (Brandeis, J., dissenting).
203
  S. Sturm, ‘A Normative Theory of Public Law Remedies’ (1991) 79 Geo. L.J.1357.
204
 Ibid 1403.
 Sources and General Content of the Law of Remedies 61

remedies against the state are thus not only necessary but necessarily different from, and
greater than, those appropriate in private law tort actions. In this regard, ‘[t]‌he remedies
that individuals may invoke against governmental wrongdoing inevitably reflect some
normative conception of the relationship between citizen and state, some notion of the
legal and political obligations that they owe one another’.205
Human rights violations committed by the state are qualitatively different from pri-
vate injury because of the motives and nature of the conduct as well as the identity of
the wrongdoer. Individuals expect protection from the state; indeed, one of its funda-
mental purposes is to provide the institutional and other means to ensure the safety
and well-being of those within its power.206 For the government itself to cause harm
adds an element of outrage generally not present in purely private wrongdoing. The
Inter-American Court of Human Rights recognized the profound impact that such
violations can have. In the Loayza Tomayo v. Peru (Reparations)207 decision, it pointed
out that the very existence and conditions of life of a person are altered by unfairly and
arbitrarily imposed government actions taken in violation of existing norms and the
trust that is placed in the hands of public power, whose duty is to protect and provide
security in order for individuals to exercise their rights and satisfy their legitimate per-
sonal interests.208
Impunity that leaves human rights victims without a remedy calls into serious ques-
tion the integrity of human rights guarantees and the rule of law.209 A primary purpose
of legally protecting rights is to affect the distribution of power between individual and
state, specifically, to protect individuals from the abuse of state power. Rights without
remedies render illusory the government’s duty to respect such rights. Even the symbolic
value of rights could disappear if it becomes obvious that rights can be violated with
impunity. Structural limits on the powers of government would exist only in the unlikely
event that those with governmental power did not seek to aggrandize it.
If society as a whole is injured by human rights violations, so also may society as a
whole benefit from public remedies. Any action the state is required to take to remedy
human rights violations will likely have effects beyond the individual plaintiff. Remedies
for public wrongs must be seen, then, as serving not only private redress but public
policy, as an important means of promoting compliance with the human rights norm.210
In a broad sense, actions against the state test the reasonableness of the state’s activity
in its context, the need to protect society, and the fairness of allowing the victim’s dam-
age to go unredressed; and in so doing they give rise to several critical, even competing,
considerations: how serious is the injury to the particular person; how should others
similarly situated be treated; can workable standards of conduct be formulated; is there
a social interest in permitting the conduct; what burdens would be imposed by judicial
intervention; does the remedy interfere with other values; is such a remedy necessary to
protect the interests in question; and, finally, is the remedy too effective in that it acts to
dissuade permitted behaviour?

205
 Schuck, supra n. 201 at 29.
206
  J. Locke, Two Treatises of Government, 1687 (Cambridge, 1988), vol. II, ss. 127–31; R. Pound,
Social Control Through Law (New Haven, 1942), 25.
207
  Loayza Tomayo v. Peru, supra n. 48.
208
  D. Dobbs, Handbook on the Law of Remedies (n.p.1986), s. 7.3(2) at 310.
209
  See H. Packer, The Limits of the Criminal Sanction (Stanford, 1968), 287 (‘respect for law generally
is likely to suffer if it is widely known that certain kinds of conduct, although nominally criminal, can
be practised with relative impunity’).
210
 Sturm, supra n. 203.
62 The Conceptual Framework

The problems of potentially conflicting interests can be seen in human rights cases
that concern widespread and long-standing violations. Constructing a remedy is usually
more difficult than determining liability. For example, human rights norms establish
that prisons must meet minimum standards, but they do not indicate the appropriate
remedy when there has been a failure of compliance by the state. In the face of possibly
irreparable injuries, the courts may be unwilling to allow monetary compensation that
allows continued toleration of the wrong.211 Negative injunctions also cannot be used in
some cases for other reasons of policy e.g., release of prisoners due to poor prison condi-
tions is generally not an acceptable remedy.
More comprehensive and long-term approaches may be needed. Owen Fiss intro-
duced the term ‘structural injunction’ into United States civil rights litigation to indi-
cate the broad reforms ordered in cases of this type.212 When such measures and other
alternatives fail to improve prison conditions, courts may order the release of inmates.213
The choice of remedy may be driven by conceptions of good management, financial
resources, control, and the proper goals of punishment, as much as by the liability norm.
It has been suggested that, because they serve to ‘realize’ legal norms, remedies in
human rights actions against the state constitute ‘the area of judicial activity that most
clearly embodies the tension between the ideal and the real’.214 From this perspective,
the question of possible non-compliance becomes important, including whether the
ideal should adjust to the reality of popular opposition to a legal rule.215 The response
by a tribunal may depend on whether it adopts a rights-maximizing approach or one of
interest-balancing.
Interest-balancing considers the efficiency in achieving a remedy as one of several
social interests that must be considered. Other interests taken into account include the
effects on persons who bear the costs of the remedy216 and the need to reconcile public
and private needs.217 In Milliken v. Bradley (Milliken II)218 the US Supreme Court stated
that remedies ‘must be designed as nearly as possible to restore the victims of discrimina-
tory conduct to the position they would have occupied in the absence of such conduct’,
but also must ‘take into account the interests of state and local authorities in managing
their own affairs’.219
It may be asked whether costs ever should play a limiting role in affording remedies.
Alan Gewirtz220 suggests that it is appropriate to consider conflicting interests that are

211
 See Zepeda v. United States Immigration & Naturalization Serv., 703 F.2d 719, 727 (8th Cir.
1985) (injury resulting from INS violations of Fourth Amendment rights ‘could not be compensated
adequately by money damages’).
212
  O. Fiss, The Civil Rights Injunction (Bloomington, 1978), 7.
213
 See Inmates of Allegheny County Jail v. Wecht, 573 F. Supp. 454, 457–8 (W.D. Penn. 1983).
214
  P. Gewirtz, ‘Remedies and Resistance’ (1983) 92 Yale L.J. 585.
215
 In Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) the United States Supreme Court found
the State of Georgia’s conviction and sentence of four years’ confinement of Samuel Worcester to be
unconstitutional. The State of Georgia never did carry out the Supreme Court’s decision and the plain-
tiff remained in a Georgia prison under a law which the Supreme Court had declared to be uncon-
stitutional: F. Cohen, Handbook of Federal Indian Law (Charlottesville 1942), 123. See also Martin
v. Hunter’s Lessee, 13 U.S. (1 Wheat.) 304 (1816).
216
  In the USA, the Supreme Court has sometimes called for remedying rights violations ‘to the
greatest possible degree . . . taking into account the practicalities of the situation’. Davis v. Board of School
Comm’rs, 402 U.S. 33, 37 (1971).
217
  Brown v. Board of Educ., 349 U.S. 294, 300 (1955).
218
  Milliken v. Bradley, 433 U.S. 267, 280–1 (1977).
219
  A. Katz, ‘The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell
v. Hood ’ (1968) 117 U. Penn. L. Rev. 1.
220
 Gewirtz, supra n. 214.
 Sources and General Content of the Law of Remedies 63

not taken into account at the rights stage (interests that are not relevant to the question of
whether a right has been violated) but ones that are relevant at the remedy stage and may
even, on occasion, override the value of remedying violations of the right.221 Long-lasting
and widespread violations, with widespread effects, create pressure to accept constraints on
relief. An effective remedy is often not possible without imposing significant and direct costs
on selected third parties who are non-violators. All enterprise liability, however, imposes
costs that are shared among the members of the group who are neither wrongdoers nor
distinctive beneficiaries of prior wrongs.
Balancing may lead to undervaluing individual rights if the ‘costs’ being evaluated
include the risk of non-compliance. It has been suggested that, in the landmark desegrega-
tion case of Brown v. Board of Education,222 the United States Supreme Court allowed delay
in affording the remedy in part to accommodate opposition to the decision, deferring to
those violating the very right it had proclaimed.223 Immediate enforcement might have
exacerbated opposition; on the other hand a strong Court opinion might also have inspired
greater public cooperation and accommodation to the remedy.
In theory, damage awards can play an important role in reducing rights violations by
forcing officials to internalize the costs of their wrongful conduct and deterring illegal con-
duct when the expected costs exceed the expected benefits.224 The injuries caused by pub-
lic law violations are frequently intangible, symbolic, and difficult to measure, however;
damages often undervalue the rights, and paying to violate is cheaper than compliance.
If tribunals seek to maximize the value of the rights being protected, they should afford a
remedy that will be the most effective in redressing harm to the victims as well as successfully
eliminating the adverse consequences of the violations.

3.2.2 Global treaties
The United Nations Charter does not define the term ‘human rights’, although it contains a
clear prohibition of discrimination based on race, sex, language, or religion. The absence of a
human rights catalogue in the Charter led to a continuing effort to define and codify human
rights, beginning with the adoption, on 10 December 1948, of the Universal Declaration of
Human Rights.225 The Universal Declaration was followed, in 1965, by the United Nations
Convention on the Elimination of All Forms of Racial Discrimination (CERD)226 and,
in 1966, by the International Covenant on Civil and Political Rights (CCPR)227 and the
International Covenant on Economic, Social and Cultural Rights (CESCR).228 The codifi-
cation effort in the United Nations and its specialized agencies has resulted in a vast body of
international human rights law including on the right to a remedy.229

221
 Ibid, 604. 222
  Brown v. Board of Educ., supra n. 217.
223
 Gewirtz, supra n. 214.
224
  R. Posner, Economic Analysis of the Law, (2nd edn, New York, 1977), 147–97.
225
  Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res. 217A (III),
UN Doc. A/810 (UDHR).
226
  Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December
1965, entered into force 4 January 1969) 660 UNTS 195.
227
  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) UNGA Res. 2200A (XXI), UN Doc. A/6316, 999 UNTS 171 (ICCPR).
228
  International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,
entered into force 3 January 1976) UNGA Res. 2200A (XXI), 993 UNTS 3 (ICESCR).
229
  Other major United Nations human rights treaties include the Convention on the Prevention
and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January
1951) 78 UNTS 277 (Genocide Convention); the Convention on the Elimination of All Forms of
Discrimination against Women (adopted 18 Dec. 1979, entered into force 3 Sept. 1981)  UNGA
64 The Conceptual Framework

The Universal Declaration of Human Rights provides that ‘[e]‌veryone has the right
to an effective remedy by the competent national tribunals for acts violating the funda-
mental rights granted him by the constitution or laws’.230 The International Covenant
on Civil and Political Rights contains three separate articles on remedies. According to
Article 2(3):
Each State Party to the . . . Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as . . . recognized [in the Covenant] are
violated shall have an effective remedy notwithstanding that the violation has been commit-
ted by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have the right thereto determined
by competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop the possibilities of
judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.231
Articles 9(5) and 14(6) add specific guarantees that anyone unlawfully arrested,
detained, or convicted shall have an enforceable right to compensation or be compen-
sated according to law.232
The Convention on the Elimination of Racial Discrimination, Article 6, also con-
tains broad guarantees of an effective remedy including ‘protection’ by national tribunals
and other state institutions, against any acts of racial discrimination, as well as the right
to seek from such tribunals ‘just and adequate reparation or satisfaction’ for any damage
suffered as a result of such discrimination.233 The treaty leaves open the question of what
forms of reparation or satisfaction are required, as well as the question of how broadly
the term ‘victim’ should be interpreted and who is liable for reparation or satisfaction.234
Upon signing ICERD, six states made declarations regarding Article 6, including the
UK, which said it interpreted the requirement in Article 6 concerning ‘reparation or
satisfaction’ as being fulfilled if either of these forms of redress is made available. It
further interpreted ‘satisfaction’ as ‘including any form of redress effective to bring the
discriminatory conduct to an end’.

Res. 34, 180 (1980) UN GAOR 34th Session Supp. 46, UN Doc. A/34/46 (1980), 193, 19 ILM
33 (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
(adopted 10 December 1984, entered into force 26 June 1987) UNGA Res. 39/46, UN GAOR 39th
Session Supp. 51, UN Doc. A/39/51 (1984) 197, 23 ILM 1027 (CAT); the Convention on the Rights
of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res. 44/25,
Annex, UN GAOR 44th Session Supp. 49, 167, UN Doc. A/44/49 (1989), 28 ILM 1448; and the
Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
(adopted 18 December 1990, entered into force 1 July 2003) UNGA Res. 45/158 (Convention on
Migrant Workers).
230
  Universal Declaration of Human Rights, supra n. 225, Art. 8.
231
  International Covenant on Civil and Political Rights, supra n. 194, Art. 2(3).
232
  Ibid, Art. 9(5): anyone who has been victim of unlawful arrest or detention shall have an enforce-
able right to compensation. Art.14(6): when a person has by a final decision been convicted of a criminal
offence and when subsequently his conviction has been reversed or he has been pardoned on the ground
that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the
person who has suffered punishment as a result of such conviction shall be compensated according
to law.
233
  Convention on the Elimination of All Forms of Racial Discrimination, supra n. 226, Art. 6.
234
 The travaux preparatoires indicate that Article 6 was intended to establish a right to restitution.
Also during the drafting discussions on Article 6 in the Commission for Human Rights, the representa-
tive of Austria proposed using the formula ‘just satisfaction’ as appears in the ECHR. The Commission
decided to maintain ‘just and adequate reparation or satisfaction’. See Natan Lerner, The UN Convention
on the Elimination of All Forms of Racial Discrimination (Rockville, 1980), 61.
 Sources and General Content of the Law of Remedies 65

The reference to ‘protection’ in CERD Article 6 seems to anticipate the use of injunc-
tive or other preventive measures against discrimination, as well as compensation or other
remedies for consequential damages. A similar provision is found in the Convention on
the Elimination of All Forms of Discrimination against Women, whereby the states par-
ties undertake to establish ‘legal protection of the rights of women on an equal basis with
men’ and to ensure through competent national tribunals and other public institutions
‘the effective protection of women against any act of discrimination’.235
The United Nations Convention against Torture refers in Article 14 to redress and
‘fair and adequate’ compensation for torture victims, ‘including the means for as full
rehabilitation as possible’, in addition to requiring that states parties enact penal sanc-
tions and prosecute perpetrators.236 Unusually, the provision also explicitly guarantees
remedies to ‘dependents’ of those who die from torture.
A combination of criminal prosecution and civil redress appears in the International
Convention for the Protection of All Persons from Enforced Disappearance,237 as well
as the Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography.238 Article 24 of the Disappearances
Convention is particularly detailed and seems to encompass much of the jurisprudence
of the Inter-American Court, as well as the UN Draft Principles and Guidelines on
Remedies discussed in Section 3.2.4 infra. The remedies extend for the benefit of anyone
forcibly disappeared and ‘any individual who has suffered harm as the direct result of an
enforced disappearance’ (Art. 24(1). Each such victim has the right to know the truth,
the progress and results of the investigation into the disappearance and the fate of the
missing person. Article 24(3) requires each state party to ‘take all appropriate measures
to search for, locate and release disappeared persons and, in the event of death, to locate,
respect and return their remains’. The legal system of each state party is to ensure that
the victims of enforced disappearance have the right to obtain reparation and prompt,
fair and adequate compensation. Article 24 goes on to specify that reparations include
‘material and moral damages and, where appropriate, other forms of reparation, such
as: restitution; rehabilitation; satisfaction, including restoration of dignity and reputa-
tion; and guarantees of non-repetition’.
Article 39 of the Convention on the Rights of the Child (CRC) refers to specific forms
of reparations for children that should aim to promote their physical and psychological
recovery and social reintegration. ‘Such recovery and reintegration shall take place in an
environment which fosters the health, self-respect and dignity of the child’.239 The CRC
Protocol adds that states parties must ensure that the acts referred to in the Convention
are made criminal offences punishable by ‘appropriate penalties that take into account
their grave nature’ and take measures of forfeiture against proceeds and assets involved in
such offences. It also provides a lengthy list of measures on behalf of the victims, detailed

235
  Convention on the Elimination of All Forms of Discrimination against Women, supra n. 229,
Art. 2(c).
236
  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, supra n. 229,
Art. 14.
237
 International Convention for the Protection of All Persons from Enforced Disappearance
(adopted 20 December 2006, entered into force 23 December 2010), 2716 UNTS 3. The preamble to
the Convention refers to the effort to combat impunity, but also to ‘the right of victims to justice and to
reparation’. The treaty requires investigation and prosecution of those responsible for enforced disap-
pearance and Article 24 contains a detailed provision on remedies, reflecting all the recent developments
in the law.
238
  Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, supra n. 109.
239
  Convention on the Rights of the Child, supra at n. 229, Article 39.
66 The Conceptual Framework

in Articles 8 and 9, that include informing children of their rights, providing support
services to them, protecting their privacy and identity during criminal proceedings, pro-
tecting the victims and their families, avoiding unnecessary delay in prosecutions and
awards of compensation to child victims, and taking ‘all feasible measures with the aim
of ensuring all appropriate assistance to victims of such offences, including their full
social reintegration and their full physical and psychological recovery’. States parties are
to ensure that there are adequate procedures in place for child victims to seek, without
discrimination, compensation for damages from those legally responsible.
The UN Convention on Migrant Workers has several specific provisions on remedies,
guaranteeing the right to fair and adequate compensation for expropriated property
(Art. 15), an enforceable right to compensation for unlawful arrest and detention or mis-
carriage of justice (Arts. 16(9), 18(6)), equality of treatment before courts and tribunals
and the right to a fair and public hearing before a competent, independent, and impar-
tial tribunal (Art. 18), the right to seek compensation for an expulsion order carried
out before all appeals are exhausted (if the decision is subsequently annulled), and the
right to consular or diplomatic assistance to assist with remedies. In addition, Article 83
generally provides that each state party undertakes to ensure effective remedies to anyone
whose rights or freedoms guaranteed by the treaty are violated, a fair hearing on claimed
violations, and enforcement of any remedies granted.
Several global treaties refer to the right to legal protection for attacks on privacy,
family, home or correspondence, or attacks on honour and reputation.240 Other specific
remedies are explicitly guaranteed in the law on indigenous rights, which has devel-
oped significantly in the last three decades.241 ILO Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent Countries242 refers to ‘fair compensation
for damages’ (Art. 15(2)), ‘compensation in money’ (Art. 16(4)) and full compensation
for ‘any loss or injury’ (Art. 16(5)). Article 15 refers to the common situation of states
owning or claiming mineral or sub-surface resources or rights to other resources on
indigenous lands.243 Before exploring or extracting such resources, states ‘shall consult

240
  See Universal Declaration of Human Rights, supra n. 225, Art. 12; International Covenant on
Civil and Political Rights, supra n. 194, Art. 17; Convention on the Rights of the Child, supra n. 229,
Art. 16; American Declaration of the Rights and Duties of Man, 2 May 1948, O.A.S. Res. XXX,
adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents
Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II.1.4, rev. 9 at 15 (2010) [here-
inafter Basic Documents], art. V; American Convention on Human Rights (adopted 22 Nov. 1969,
entered into force 18 July 1978) OEA/ser.L/V/II.23, doc. 21 rev. 6 (1979), O.A.S.T.S. No. 36 at 1,
reprinted in Basic Documents, art. 11(3); European Convention for the Protection of Human Rights
and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) ETS
5 (European Convention on Human Rights), Art. 8; African Charter on Human and Peoples Rights
(adopted 27 June 1981, entered into force 21 October 1986) OAU Doc. CAB/LEG/67/3 Rev. 5,
(1982) 21 ILM 58, Art. 5; Convention on Migrant Workers, supra n. 229, Art. 14.
241
  See, e.g., International Law Association, The Hague Conference On The Rights Of Indigenous
Peoples, Interim Report 1-6 (2010), available at http://www.ila-hq.org/en/committees/index.cfm/
cid/1024 [hereinafter ILA Report]; S. James Anaya, Indigenous Peoples In International Law (2nd edn,
Oxford 2004); Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester, 2002), 20–32;
Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International
Legal Analysis’, (1999) 12 Harv. Hum. Rts J. 57, 100–110.
242
  Convention Concerning Indigenous and Tribal Peoples in Independent Countries (adopted
27 June 1989, entered into force 5 September 1991) ILO No.169, (1989) 28 ILM 1382.
243
  Ibid, art. 15. Even when indigenous communities possess title to their territories, the law often
establishes state ownership over water and subsurface resources. See, e.g., Inter-American Commission
on Human Rights, Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural
Resources: Norms and Jurisprudence of the Inter-American Human Rights System (2009), para. 180, avail-
able at http://www.oas.org/en/iachr/indigenous/docs/pdf/AncestralLands.pdf .
 Sources and General Content of the Law of Remedies 67

these peoples’;244 the communities concerned also ‘shall wherever possible participate in
the benefits of such activities, and shall receive fair compensation for any damages’.245
Article 16 concerns another frequent scenario:  when indigenous peoples have been
evicted or displaced from their lands. It guarantees a right to return to their traditional
lands, as soon as the grounds for relocation cease to exist. In the event such return is not
possible ‘… these peoples shall be provided in all possible cases with lands of quality and
legal status at least equal to that of the lands previously occupied by them, suitable to
provide for their present needs and future development’.246 If communities prefer ‘com-
pensation in money or in kind’, they may exercise that option.247
In sum, global instruments generally include provisions requiring domestic remedies
and often specify preventive measures as well as types of remedies that must be provided.
Certain treaties, like the Convention against Torture and the Convention on Forced
Disappearances, also require investigation, prosecution and punishment of perpetrators.

3.2.3╇Regional treaties
Regional human rights systems differ from the global ones in establishing courts and
other tribunals to hear complaints from those claiming to be victims of human rights
violations committed by a member state.248 As the next chapter will show, however,
the systems emphasize the duty of states to provide domestic remedies. International
procedures are subsidiary and only available if domestic remedies fail or are exhausted.

3.2.3.1╇The European Convention on Human Rights

The Statute of the Council of Europe, adopted by Western European nations in 1949,
provides that every member must accept the principles of the rule of law and of the enjoy-
ment by all persons within its jurisdiction of human rights and fundamental freedoms.
Its system for the protection of human rights is based on the European Convention
on Human Rights and Fundamental Freedoms (ECHR) and its protocols, plus the
European Social Charter. Council membership is de facto conditioned upon adherence
to the European Convention.
The ECHR, signed 4 November 1950, entered into force on 3 September 1953.249 As
originally adopted, it guaranteed a limited number of civil and political rights, consid-
erably expanded by the adoption of later Additional Protocols to the Convention. The
European Convention was the first treaty to create an international court for the protec-
tion of human rights and to create a procedure for individual denunciations of human
rights violations in addition to inter-state complaints. The European Court of Human
Rights (European Court) issues judgments in which it may afford ‘just satisfaction’ to
the injured party, including compensation for both pecuniary and non-pecuniary dam-
ages.250 The ECHR declares that ‘the High Contracting Parties undertake to abide by the

244
╇ The text continues: ‘with a view to ascertaining whether and to what degree their interests would
be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of
such resources pertaining to their lands’. ILO Convention No. 169, supra n. 242, art. 15.
245
╇Ibid. 246
╇ ILO Convention No. 169, supra n. 242, art. 16(4). 247
╇Ibid.
248
╇ On regional systems generally, see Dinah Shelton, ‘The Promise of Regional Human Rights
Systems’, in B. Weston and S. Marks (eds.), Fifty Years of Human Rights Law (Philadelphia, 1999).
249
╇ European Convention for the Protection of Human Rights and Fundamental Freedoms, supra
n 240; see Dinah Shelton, ‘The Boundaries of Human Rights Jurisdiction in Europe’ (2003) 13 Duke
J. Int’l & Comp. L. 95.
250
╇ European Convention, Art. 41.
68 The Conceptual Framework

decisions of the Court in any case to which they are parties’ (Convention, Art. 46(1)).
The Committee of Ministers supervises compliance with the judgments.
The ECHR contains several provisions on national remedies. The first provision,
Article 6, guarantees access to justice and the right to a fair hearing.251 Article 13 provides
‘Everyone whose rights and freedoms as set forth in this Convention are violated shall
have an effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity’. In addition to these gen-
eral provisions, Article 5(4) guarantees a right of habeas corpus and Article 5(5) requires
compensation be afforded for unlawful arrest.252
Article 13 has been referred to as ‘the most obscure’ provision in the Convention253
because of its seeming suggestion that access to a remedy is required only after a violation
has been demonstrated—proof of which would require access to a remedial authority.
This circularity was noted in early decisions of the European Court. In Klass and others
v. Germany254 the Court noted that Article 13, read literally, seems to say that a person is
entitled to a national remedy only if a ‘violation’ has occurred; but a person cannot estab-
lish a violation before a national authority unless he or she is first able to lodge with such
an authority a complaint to that effect. Thus, according to the Court, Article 13 guaran-
tees an effective remedy ‘to everyone who claims that his rights and freedoms under the
Convention have been violated’,255 a ruling that the Court repeated in Silver v. United
Kingdom, one of the few early cases where the Court found a violation of Article 13.256
The Court said that ‘[a]‌n individual who has an arguable claim to be the victim of a
violation of one of the rights in the Convention is entitled to a national remedy in order
to have his claim decided and if appropriate to obtain redress’.257
The Committee of Ministers sought to reinforce Article 13 and uphold the system
with a recommendation adopted in 1984 that calls on all Council of Europe member
states to provide remedies for governmental wrongs.258 Principle I of the recommenda-
tion says:
Reparation should be ensured for damage caused by an act due to a failure of a public authority to
conduct itself in a way which can be expected from it in law in relation to the injured person. Such
a failure is presumed in case of transgression of an established legal rule.

251
  The European Court of Human Rights interpreted the right to a fair hearing to include the right
of access to justice in the case of Golder v. United Kingdom, (1975) Series A no. 18.
252
  The commentary on the EU Charter of Fundamental Rights indicates that its Article 6 (‘Everyone has
the right to liberty and security of person’) has the same meaning and scope as the rights guaranteed by Article
5 of the ECHR, thus encompassing the rights of habeas corpus and compensation mentioned above. The
commentary also indicates that these rights must be respected, particularly when, in accordance with Title VI
of the Treaty on European Union, the Union is adopting framework decisions to define common minimum
provisions as regards the categorization of offences and punishments. See sec. 3.2.3.3.
253
  European Court of Human Rights, Malone v. United Kingdom (1984) Series A no. 82, partially
dissenting opinion of Judges Matcher and Pinheiro Farinha.
254
  European Court of Human Rights Klass and others v. Germany (1979) Series A no. 28.
255
  Ibid (emphasis added).
256
  As of 1993, only forty-six cases reaching the Court claimed a violation of Art. 13. See Gro
Hillestad Thune, ‘The Right to an Effective Remedy in Domestic Law: Article 13 of the European
Convention on Human Rights’, in Donna Gomien (ed.), Broadening the Frontiers of Human Rights,
Essays in Honour of Asbjorn Eide (Oslo, 1993), 79–95. Since that time, many more cases have been
brought alleging a violation of Art. 13.
257
  European Court of Human Rights, Silver v. United Kingdom (1983) Series A no. 61 (1979–80),
2 EHRR 214, para. 113.
258
  Recommendation No. R(84) 15 on Public Liability, adopted by the Committee of Ministers on
18 Sept. 1984.
 Sources and General Content of the Law of Remedies 69

Principle V adds that reparation under Principle I  should be made in full. The
Commentary indicates that the victim must be compensated for all the damage result-
ing from the wrongful act that can be assessed in terms of money.

3.2.3.2╇The European Social Charter

The European Social Charter establishes a regional European system for guarantees of
economic and social rights. The Charter was opened for signature on 18 October 1961
and entered into force on 26 February 1965. An Additional Protocol to the Charter,
expanding its catalogue of rights, was concluded on 5 May 1988. On 9 November 1995,
another Additional Protocol was concluded that provides for a system of collective com-
plaints; it entered into force on 1 July 1998. Finally, in 1996, a revised Social Charter,
bringing up to date the earlier documents and adding some new rights, was opened for
signature. It entered into force on 1 July 1999.
Article A (Part III) of the Revised Charter, specifying the obligations the states parties
assume by ratifying the Charter, gives the states a set of options. First, by becoming a
party to the Charter, a state undertakes ‘to consider Part I of this Charter as a declaration
of the aims which it will pursue by all appropriate means …’ (Charter, Art. A(1)(a)).
Second, the state must accept as binding upon it the undertakings contained in at least
six out of nine articles found in Part II.259 Third, each state party has a further obligation
to select another specified number of rights or sub-categories of rights with which it
agrees to comply (Revised Charter, Art. A(1)(c)). The system is intentionally flexible to
encourage states to ratify the Charter. It is also drafted so as to ensure that all states parties
will be bound to guarantee some of the most basic rights.
A few provisions in the Charter refer to remedies, including the right of workers
wrongfully dismissed to obtain compensation or other relief. (Revised Charter, Art.
24(b)). More generally, the Charter refers to the ‘right to protection’ of the rights guar-
anteed therein, without specifying the modes of protection. Other aspects of this treaty
make it different from most human rights agreements. The Charter’s collective com-
plaint procedure does not speak of ‘victims’ of violations, but rather permits a qualified
complainant to communicate in writing to the secretary of the European Committee
on Social Rights that a state party ‘has not ensured the satisfactory application’ of one
or more of the provisions of the Charter by which it is bound.260 Unlike almost all other
human rights complaints procedures, there is no requirement to exhaust domestic rem-
edies prior to submitting a communication.
Once the complaint has been declared admissible, a written procedure is set in motion,
with an exchange of memorials between the parties. The Committee may decide to hold
a public hearing. The Committee then takes a decision on the merits of the complaint,
which it forwards to the parties concerned and the Committee of Ministers in a report,
which is made public within four months of its being forwarded.
Finally, the Committee of Ministers adopts a resolution. If appropriate, it may rec-
ommend that the state concerned take specific measures to bring the situation into line

259
╇ The nine provisions are: Art. 1 (right to work); Art. 5 (right to organize); Art. 6 (right to bargain
collectively); Art. 7 (the right of children and young persons to protection); Art. 12 (right to social
security); Art. 13 (right to social and medical assistance); Art. 16 (right of the family to social, legal, and
economic protection); Art. 19 (right of migrant workers and their families to protection and assistance);
and Art. 20 (right to equal opportunities and equal treatment in matters of employment and occupation
without discrimination on the grounds of sex).
260
╇ Article 4, 1995 Protocol.
70 The Conceptual Framework

with the Charter. Although individual remedies are not awarded, due to the nature of the
proceeding, the results can afford some redress to numerous persons.261

3.2.3.3╇The European Union Charter of Fundamental Rights

The preamble to the Maastricht Treaty of European Union (TEU), which transformed
the European Community into the European Union, declared that ‘the Union shall
respect fundamental rights, as guaranteed by the European Convention [of ]â•›.â•›.â•›.â•›Human
Rightsâ•›.â•›.â•›.â•›and as they result from the constitutional traditions common to the member
states, as general principles of Community law’.262 This language subsequently became
Article 6 of the revised Treaty of the European Union and is reiterated in the Treaty of
Lisbon.263
On 18 December 2000, the EU adopted a European Charter of Fundamental Rights,
to cover all rights that pertain to the Union’s citizens, and subsequently incorporated
the Charter into the Treaty of Lisbon. The rights guaranteed in the EU Charter are
divided into six categories or chapters: dignity, freedoms, equality, solidarity, citizens’
rights, and justice. Chapters I to III and VI basically restate the rights found in the
European Convention, but, in some instances, the Charter goes beyond the Convention
guarantees. Chapter IV on Justice contains a broad and explicit guarantee of a remedy
for wrongs done. Article 47, entitled ‘Right to an Effective Remedy and to a Fair Trial’,
establishes that everyone whose rights and freedoms guaranteed by the law of the Union
are violated has the right to an effective remedy before a tribunal.264 The procedural
aspects of this right include the right to a fair and public hearing within a reasonable
time by an independent and impartial tribunal previously established by law. The right
of representation is assured as well as the availability of legal aid for ‘those who lack suf-
ficient resources insofar as such aid is necessary to ensure effective access to justice’ (Art.
47(3)). The final paragraph of Article 47 is based upon the ECtHR judgment in Airey265
and requires provision be made for legal aid where the absence of such aid would make it
impossible to secure an effective remedy. It must be noted that there is a system of legal
assistance in cases before the Court of Justice.
The Charter also mentions specific remedies: Article 8 guarantees the right of access
to personal data and the specific remedial right to have false information corrected or
rectified; the right of property (Art. 17) includes the right of timely compensation in

261
╇ See, e.g. Syndicat de Défense des Fonctionnaires v.  France (Merits) Collective Complaint No.
73/2011 (2012) (‘the Committee considers that it is for the redeployed civil servants themselves to
assert their rights to redress in the domestic courts. On this subject, the Committee points out that
Article 1§2 of the Charter requires provision to be made for appropriate and effective remedies in
the event of alleged discrimination and that reparations must be adequate, proportionate and dissua-
sive (Conclusions 2006, Albania). The burden of proof must also be shifted in the employee’s favour
(Conclusions 2002, France) and there must be some protection for employees who lodge complaints or
bring actions in court against dismissal or other reprisals by employers (Conclusion XVI–1, Iceland)’,
para. 59.
262
╇ Treaty on European Union, Preamble, para. F(2). (1992) 36 Int’l Legal Mat. 253, 256.
263
╇Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the
European Community, 13 December 2007, 2007/C 306/01, available at: http://www.refworld.org/
docid/476258d32.html [accessed 7 January 2015].
264
╇ Art. 47 on the right to an effective remedy is most clearly based upon Art. 13 of the ECHR, but
it is more expansive. Art. 13 guarantees an effective remedy ‘before a national authority’ but not neces-
sarily before a judicial tribunal. At the same time, Art. 13 must be considered in connection with Art. 5,
which guarantees a hearing before an independent tribunal whenever civil rights and obligations are in
question.
265
╇ European Court of Human Rights, Airey v. UK (1979) Series A. no. 32.
 Sources and General Content of the Law of Remedies 71

case of public takings. These remedial provisions are intentionally broader than those
of ECHR Article 13 and take into account other international instruments and EC law
itself. Article 8, for example, on rectification of incorrect personal data, derives from
Directive 95/46/EC on the protection of individuals with regard to the processing of
personal data and on the free movement of such data266 as well as from ECHR Article 8
and the Council of Europe Convention for the Protection of Individuals with regard to
Automatic Processing of Personal Data.267
The final chapter of the Charter contains choice of law and interpretive provisions
(Arts. 52 and 53) which suggest a principle that the rule most favourable to individual
rights should govern, when various provisions of national, regional or international
laws apply.268 In particular, ‘[n]â•„othing in this Charter shall be interpreted as restricting
or adversely affecting human rights and fundamental freedoms as recognized, in their
respective fields of application, by Union law and international law and by interna-
tional agreements to which the Union, the Community or all the member states are
party, including the European Convention for the Protection of Human Rights and
Fundamental Freedoms, and by the member states’ constitutions’. At the same time
rights contained in the Charter that correspond to rights contained in the ECHR are to
be deemed to have an identical meaning.269 The statement calling for identical interpre-
tation precedes a declaration that ‘[t]his provision shall not prevent Union law providing
more extensive protection’. It appears that the European Court of Justice should follow
ECHR jurisprudence on common provisions, but apply directives and regulations, as
well as the Charter itself, to develop, interpret and apply other rights.

3.2.3.4╇The Inter-American system
In the Western hemisphere, the Organization of American States (OAS) adopted the
American Declaration of the Rights and Duties of Man (American Declaration)270 some
months prior to adoption of the Universal Declaration of Human Rights in the United
Nations General Assembly; in 1969, it concluded the American Convention on Human
Rights.271 Two protocols have been adopted: the Additional Protocol on Economic,
Social and Cultural Rights272 and the Protocol on Abolition of the Death Penalty.273
Other conventions add additional protections: Inter-American Convention to Prevent
and Punish Torture (1985); Inter-American Convention on Forced Disappearance
of Persons (1994); Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women (1994); Inter-American Convention on the
Elimination of All Forms of Discrimination against Persons with Disabilities (1999).

266
╇ Official Journal of European Communities, L 281 (23 November 1995).
267
╇ 28 Jan. 1981, in force for all member states. 268
╇ Art. 53: Level of Protection.
269
╇ Art. 52(3): ‘In so far as this Charter contains rights which correspond to rights guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of
those rights shall be the same as those laid down by the said Convention. This provision shall not prevent
Union law providing more extensive protection’.
270
╇ American Declaration of the Rights and Duties of Man, supra n. 240.
271
╇ American Convention on Human Rights, supra n. 240, 23.
272
╇ Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights (adopted 17 November 1988, entered into force 16 November 1996),
OASTS 69, 28 ILM 156, reprinted in Basic Documents, supra n. 240, 65.
273
╇ Protocol to the American Convention on Human Rights to Abolish the Death Penalty (adopted
8 June 1990, entered into force 28 August 1991) OASTS 73, reprinted in Basic Documents, supra
n. 240, 79.
72 The Conceptual Framework

Article XVII of the American Declaration of the Rights and Duties of Man274 guar-
antees every person the right to resort to the courts to ensure respect for legal rights and
to obtain protection from acts of authority that violate any fundamental constitutional
rights. The American Convention on Human Rights goes further, entitling everyone to
effective recourse for protection against acts that violate the fundamental rights recog-
nized by the constitution ‘or laws of the state or by the Convention’, even where the act is
committed by persons acting in the course of their official duties (Art. 25).275 The states
parties are to ensure that the competent authorities enforce the remedies granted and,
indeed, are obliged to respect and ensure the free and full exercise of all rights guaranteed
by the Convention (Art. 1(1)).
These obligations are linked to the fair trial provisions of Article 8, which requires
the state to provide a fair hearing before a competent, independent and impartial tribu-
nal. Article 10 of the Convention further provides that every person has the right to be
compensated in accordance with the law in the event he has been sentenced by a final
judgment through a miscarriage of justice.276 In sum, ‘States Parties have an obligation
to provide effective judicial remedies to victims of human rights violations (Art. 25),
remedies that must be substantiated in accordance with the rules of due process of law
(Art. 8(1)), all in keeping with the general obligation of such States to guarantee the free
and full exercise of the rights recognized by the Convention to all persons subject to their
jurisdiction (Art. 1)’.277 This obligation has been supplemented by additional guarantees
in later-adopted treaties imposing obligations of investigation, prosecution and punish-
ment of acts of torture, forced disappearance and violence against women.

3.2.3.5╇The African system
The African Charter on Human and Peoples’ Rights278 entered into force on 21 October
1986 within the framework of the African Union (AU). The Charter emphasizes African
traditions and values, guarantees peoples’ rights as well as individual rights and pro-
claims economic, social, and cultural rights as well as civil and political rights.
The African Charter has several provisions on remedies. Article 7 guarantees every
individual the right to have his cause heard, including ‘the right to an appeal to com-
petent national organs against acts violating his fundamental rights as recognized and
guaranteed by conventions, laws, regulations and customs in force’. In addition, Article
21 refers to ‘the right to adequate compensation’ in regard to ‘the spoliation of resources
of a dispossessed people’.279 Article 26 imposes a duty on states parties to the Charter to
guarantee the independence of the courts and allow the establishment and improvement
of appropriate national institutions entrusted with the promotion and protection of
rights and freedoms guaranteed by the Charter. The Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa280 further requires states

274
╇ American Declaration of the Rights and Duties of Man, supra n. 240.
275
╇ American Convention on Human Rights, supra n. 240, art. 25.
276
╇ Ibid, Art. 10. Art. 3 of Protocol 7 to the European Convention on Human Rights similarly
provides for compensation when a criminal conviction is reversed or the accused is pardoned ‘on the
ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of
justiceâ•›.â•›.â•›.â•›unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly
attributable to him’: Protocol No. 7 to the European Convention on Human Rights, ETS No. 117.
277
╇Inter-American Court of Human Rights Velásquez-Rodríguez Case (Preliminary Exceptions)
(1987) Series C, para. 91. The Court’s statement was made in the context of disappearances, which
the OAS General Assembly has characterized as a crime against humanity in the Western Hemisphere.
278
╇ African Charter on Human and Peoples’ Rights, supra n. 240. 279
╇ Ibid, Art. 21(2).
280
╇ Protocol on the Rights of Women in Africa (2000) OAU Doc. no. CAB/LEG/66.6.
 Sources and General Content of the Law of Remedies 73

parties to ‘(a) provide for appropriate remedies to any woman whose rights or freedoms,
as herein recognized, have been violated, (b) ensure that such remedies are determined
by competent judicial, administrative or legislative authorities, or by any other compe-
tent authority provided for by law’. Art. 26.
Finally, it should be noted that newly emerging systems in other regions include
remedial rights in their basic instruments. The 2004 Revised Arab Charter on Human
Rights281 in Article 23, proclaims ‘Each State party to the present Charter undertakes
to ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed
by persons acting in an official capacity’. The ASEAN Declaration of Human Rights
of 2007,282 Art. 5, similarly provides: ‘Every person has the right to an effective and
enforceable remedy, to be determined by a court or other competent authorities, for acts
violating the rights granted to that person by the constitution or by law’.

3.2.4 Declarations and other non-treaty texts

UN Charter-based human rights bodies grappled for many years with complex legal
issues emerging from the demands for remedial justice. The most sustained effort was the
work to elaborate international principles on reparation for victims of human rights vio-
lations, undertaken by the former UN Sub-Commission on Promotion and Protection
of Human Rights and former UN Commission on Human Rights. Other discussions
of remedies arose in the context of studies on impunity, disappearances, and historical
injustices, resulting in several relevant declarations and guidelines.
The former UN Sub-Commission began its work on reparations with Resolution
1988/11, which recognized that all victims of gross violations of human rights and fun-
damental freedoms should be entitled to restitution, fair and just compensation, and the
means for as full a rehabilitation as possible for any damage suffered.283 Between 1989
and 1993, rapporteur Theodoor van Boven studied ‘the right to restitution, compensa-
tion and rehabilitation for victims of gross violations of human rights and fundamental
freedoms’284 and examined the possibility of developing basic principles and guidelines
on remedies. Mr van Boven’s work resulted in a preliminary report in 1990, followed by
progress reports, and a 1993 final report with annexed draft principles on restitution,
compensation, and rehabilitation.285
The UN Human Rights Commission reviewed the final report and called the study
and proposed basic principles and guidelines ‘a useful basis’ for giving priority to the
question of restitution, compensation and rehabilitation.286 At the same time it made

281
  Revised Arab Charter on Human Rights (2004),( 2008) 12 Int’l Hum. Rts Rep. 893.
282
  ASEAN Declaration on Human Rights (2013), available at http://www.asean.org.
283
  Res. 1988/11 of 1 September 1988. Members of the Sub-Commission introduced the topic for
study after attending a conference in Canada on the issue of Second World War claims against Japan
by persons used as forced labourers who had never received reparations. Communication from Th. Van
Boven, 4 May 2004, on file with the author.
284
 United Nations Sub-Commission on the Prevention of Discrimination and Protection of
Minorities, Res. 1989/13 of 31 Aug. 1989. The Human Rights Commission authorized the study
by Res. 1990/35 of 2 Mar. 1990, and the Economic and Social Council approved by Res. 1990/36 of
25 May 1990.
285
  Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross
Violations of Human Rights and Fundamental Freedoms, Preliminary Report submitted by Theodoor
van Boven, Special Rapporteur, E/CN.4/Sub.2/1990/10, 26 July 1990; Progress reports, E/CN.4/
Sub.2/1991/7 and E/CN.4/Sub.2/1992/8; Final Report, E/CN.4/Sub.2/1993/8.
286
  E/CN.4/1994/35, E/CN.4/1996/35 of 19 Apr. 1996.
74 The Conceptual Framework

clear that revisions were necessary.287 Independent expert, Mr Cherif Bassiouni, there-
after prepared a revised version of the draft basic principles and guidelines, submitting
a report in 1999288 and a final report in 2000 to which he appended the third revision
of the draft principles and guidelines.289 After consultations a fourth revised version was
completed in 2003. The time that elapsed and the repeated revisions reflected consider-
able debate and uncertainty over the issue of remedies. Some of the most contentious
issues that arose concerned whether or not to include humanitarian law in the draft and
whether to define gross violations of international law.
The Commission finished and the General Assembly finally approved 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 in 2005.290 The text consists of thirteen sub-parts and 27 principles
and guidelines (no operative distinction is made between these two terms). The resolu-
tion of adoption asserts ‘that the Basic Principles and Guidelines contained herein do
not entail new international or domestic legal obligations but identify mechanisms,
modalities, procedures and methods for the implementation of existing legal obligations
under international human rights law and international humanitarian law which are
complementary though different as to their norms’. The accompanying report of the
High Commissioner for Human Rights noted that in the text ‘shall’ was used only in
cases where a binding international norm is in effect; otherwise the term ‘should’ was
used.291 This criterion appears to have been applied rather conservatively.292
The right to a remedy for all victims of international human rights law is recalled and
the preamble also recites its rationale for ensuring a right to a remedy, stating that by so
doing, ‘the international community keeps faith and human solidarity with victims, sur-
vivors and future human generations, and reaffirms the international legal principles of
accountability, justice and the rule of law’. The following paragraph also refers to ‘com-
passion’ for victims and solidarity with humanity at large. While the fundamental legal
principles are mentioned, the two paragraphs generate an impression that remedies are
more matters of charity towards victims and survivors than moral and legal imperatives.
Parts I and II concern the content and scope of the obligation to respect, ensure
respect for, and enforce international human rights and humanitarian law, including
domestic incorporation or implementation of all human rights obligations as well as
assuring effective and prompt access to justice and reparations. Subsequent sections
distinguish various types of violations. Part III concerns human rights and humanitarian

287
  Mr van Boven submitted revised draft basic principles and guidelines to the Sub-Commission in
1996, E/CN.4/Sub.2/1996/17 of 24 May 1996, and 1997, E/CN.4/1997/104, Annex, of 16 Jan. 1997
submitted in accordance with Sub-Commission Res. 1996/28.
288
  E/CN.4/1999/65 of 8 Feb. 1999. 289
 E/CN.4/2000/62.
290
  Commission on Human Rights resolution 2005/35 of 19 April 2005; General Assembly reso-
lution 60/147 of 16 December 2005. Germany spoke against the adoption of the Guidelines and
abstained from voting on the resolution before the Commission claiming the text was an inaccurate
reflection of customary international law and should not have relied on rules of state responsibility for
individual claims. See E/CN.4/2005/SR.57, paras. 38–39.
291
  E/CN.4/2003/63 of 27 Dec. 2002.
292
  E.g. para. 20 provides that victims of gross violations of international human rights and humani-
tarian law ‘should be provided, as appropriate and proportional to the violation and the circumstances of
each case, with the following forms of reparation: restitution, compensation, rehabilitation and satisfac-
tion and guarantees of non-repetition’. The following paragraph contains a definition of restitution that
is by no means innovative, but which uses ‘should’: ‘Restitution should, whenever possible, restore the
victim to the original situation before the violations . . . occurred’. The next paragraph says that ‘compen-
sation should be provided for any economically assessable damage …’ All of these statements appear to
restate existing law and could have used ‘shall’.
 Sources and General Content of the Law of Remedies 75

law violations that constitute international crimes. It iterates the duty of states to inves-
tigate and, if evidence so warrants, to submit to prosecution or extradition those alleged
to have committed crimes under international law. Part V refers to gross violations of
human rights and serious violations of humanitarian law that are not criminal in nature.
The general obligation to respect and ensure human rights, detailed in the first two
parts of the draft, distinguish and emphasize the dual nature of remedial rights: access to
justice, on the one hand, and substantive remedies, on the other hand. Access to justice
is required to be ‘fair, effective and prompt’, recalling language from the law on nation-
alization of property. While the general obligation applies to all violations, Parts VII
and VIII of the draft, which set forth the rights to procedural and substantive remedies,
apply only in the context of gross violations of human rights and serious violations of
humanitarian law. One contribution of the text is the addition of a third component to
remedial rights, namely the right of ‘access to relevant information concerning violations
and reparation mechanisms’ (Principle 11).
Part VIII, Principles 12–14, concerns access to justice and provides that victims ‘shall’
have equal and effective access to a judicial remedy, although administrative or other
remedies may be provided in accordance with domestic or international law. Access to
justice includes effective access to international proceedings as provided by international
law. To make access to justice effective, states ‘should’, inter alia, disseminate informa-
tion about available remedies, take measures to protect victims and witnesses and ‘facili-
tate assistance’ to victims. The latter term may suggest or refer to financial aid to indigent
victims, but this is not made explicit in the text or commentary.
Part IX, Principles 15–23, which details the forms of reparation and other appropri-
ate remedies shifts between ‘shall’ and ‘should’ according to whether or not the author
deemed the provision to codify existing international law. The section affirms that repa-
ration ‘is intended to promote justice’ by redressing injury and thus ‘should be propor-
tional to the gravity of the violations or the harm suffered’. The inclusion of these two
elements (scope of the injury and magnitude of the misconduct) as tests for the nature
and range of reparations gives more flexibility to the decision-maker in affording redress
than if either factor alone were the basis for judgment. There may be cases where the
violations are very grave from the perspective of the individual or society at large, but the
harm is more dignitary or emotional than economic or physical.
The state is responsible for providing reparation for acts or omissions by it that consti-
tute violations within the scope of the draft. In cases where a non-state actor is responsi-
ble for the violation, liability should be imposed if possible and the state should enforce
any judgment for reparation against individuals or entities held responsible. The inclu-
sion of non-state actors, the scope of their liability, and the duties of the state respecting
violations by them remain debated topics.
The Principles and Guidelines diverge from the provisions on reparations of the
ILC Articles on State Responsibility in several respects. First, cessation of the breach is
included among forms of satisfaction, whereas the ILC convincingly places it as an obli-
gation prior to and independent of reparation. Cessation is not part of reparation, but is
part of the general obligation to conform to the norms of international law. In the case
of a treaty, it is inherent in the notion of pacta sunt servanda. To include cessation within
the notion of reparation seems to imply that in the absence of a complaining victim there
is no duty of cessation. It undermines the rule of law which is the basis of the obligation
to cease any conduct that is not in conformity with an international duty.
The various forms of reparation follow the traditional categories found in the ILC
Articles: restitution, compensation, satisfaction, and guarantees of non-repetition, but
add rehabilitation as a separate heading, something not in the ILC Articles. Restitution
76 The Conceptual Framework

‘should, whenever possible’ restore the victim to a pre-violation status. Given the long-standing
preference for restitution in the law of state responsibility, it is surprising that the text does
not adopt the mandatory ‘shall, whenever possible’ or indicate that restitution is the preferred
remedy. Efforts to strengthen the language apparently ran into government objections during
the drafting process. It also should be noted that in many cases restitution and cessation will
be accomplished by the same act, for example, restoration of liberty or return of property.293
Compensation, as in the ILC Articles, is to be provided ‘for any economically assessable
damage’. This open-ended test invites lawyers, economists, and judges to devise economic
measures for intangible injuries. Pain and suffering are now widely viewed as capable of eco-
nomic assessment; the consequences to a child’s education and future employment from losing
a parent are similarly now measured through economic analysis. Hedonic damages, i.e. loss
of the enjoyment of life, or the Inter-American Court’s notion of damages for injury to one’s
life projects (proyecto de vida) suggest the importance of fully reflecting in economic terms the
injuries caused by human rights violations. The paragraph on compensation reiterates that the
compensation provided should be ‘proportional to the violation’ which allows the egregious-
ness of the act to be considered in evaluating moral damages, while not suggesting that punitive
damage awards are appropriate. The text quite rightly includes expenses for legal and medical
assistance within the recoverable costs, as they are directly attributable to the wrong done.
Non-monetary remedies, apart from rehabilitation, are included as forms of satisfac-
tion. While the ILC Articles disfavour satisfaction, they have been important in the human
rights field where the disparity of power between the state and individuals whose rights are
violated make the state’s role in disclosure of the violations and the reasons for them particu-
larly important. Satisfaction thus includes truth-telling, recovery, and reburial of victims’
remains, actions to restore victims’ reputation, apology, and commemorations. It also may
include judicial and administrative sanctions against those responsible, although the draft is
clear that the duty to prosecute only applies to crimes and not to all human rights violations.
Although guarantees of non-repetition, like satisfaction, are seen as largely inap-
propriate at the inter-state level,294 they are very important in human rights cases. The
specific measures recommended in the Principles and Guidelines mainly comprise
strengthening of national institutions under the rule of law, including independence
of the judiciary and civilian control of the military and security forces. Final provisions
recall the duty of non-discrimination and the due process rights of any accused person.
Other declarations, resolutions, and official commentaries also address the right
to a remedy. In 2007, the General Assembly adopted a Declaration on the Rights
of Indigenous Peoples (‘UNDRIP’).295 The UNDRIP contains specific provisions on
remedies.296 The central provision, Article 40, establishes:

293
  On 28 Aug. 1998, the UN Sub-Commission, in Res. 1998/26, called for housing and property
restitution in the context of the return of refugees and internally displaced persons. It recognized that
the right of return and exercise of property rights ‘forms an indispensable element of national reconcili-
ation and reconstruction’.
294
  The ICJ refused to indicate any guarantees of non-repetition in its judgments concerning US fail-
ure to comply with the Vienna Convention on Consular Relations, despite actions brought by several
states asserting multiple violations of the Convention. See: LaGrand (Germ. v. USA), 2001 ICJ (judg-
ment of 27 June) and Avena and 41 Mexican Nationals (Mexico v. USA) (2004) 43 ILM 581.
295
  United Nations Declaration on the Rights of Indigenous Peoples (13 Sept. 2007) UNGA Res.
61/295, Annex, UN Doc. A/RES/61/295 (UNDRIP). The UNDRIP was forced to accept various revi-
sions and compromises. See, e.g., Karen Engle, ‘On Fragile Architecture: The UN Declaration on the
Rights of Indigenous Peoples in the Context of Human Rights’, (2011) 22 Eur. J. Int’l L. 141, 144–151;
Willem van Genugten, ‘Protection of Indigenous Peoples on the African Continent: Concepts, Position
Seeking, and the Interaction of Legal Systems’, (2010) 104 Am. J. Int’l L. 29, 34.
296
  Claire Charters notes that the provisions on redress involved some of the most contentious debates
during the UNDRIP drafting process. Some essential victories were obtained, however, such as replacing
 Sources and General Content of the Law of Remedies 77
Indigenous peoples have the right . . . to effective remedies for all infringements of their individual
and collective rights. Such a decision shall give due consideration to the customs, traditions, rules
and legal systems of the indigenous peoples concerned and international human rights.297
The instrument generally calls for ‘effective mechanisms for prevention of, and redress
for’ actions that deprive indigenous communities of their ‘integrity as distinct peoples,
or of their cultural values or ethnic identities’, dispossess them of their territories or
resources, force them to move, assimilate or integrate, or ‘promote or incite racial or eth-
nic discrimination’ against them.298 States shall also provide redress, ‘which may include
restitution’,299 for cultural, intellectual, religious and spiritual property taken without
the ‘free, prior and informed consent’ of the indigenous group. Similarly, ‘States shall
seek to enable the access and/or repatriation of ceremonial objects and human remains
in their possession.”300 Both provisions require that States develop redress procedures ‘in
conjunction with indigenous peoples’.301
With respect to ancestral lands, UNDRIP insists that forced relocation cannot occur
‘without the free, prior and informed consent of the indigenous peoples concerned and
after agreement on just and fair compensation and, where possible, with the option of
return’.302 When territories or resources have been used or damaged without their con-
sent, ‘indigenous peoples have the right to redress, by means that can include restitution
or, when this is not possible, just, fair and equitable compensation’.303 Such compensa-
tion ‘shall take the form of lands, territories and resources equal in quality, size and legal
status or of monetary compensation or other appropriate redress’.304 UNDRIP takes a
significant step forward by not requiring that indigenous communities currently possess
their lands to receive redress.305 On the other hand, when restitution is not possible, the
instrument allows for undefined ‘other appropriate redress’.306
On another topic, in its resolution 2005/20, the Economic and Social Council
adopted Guidelines on Justice in Matters involving Child Victims and Witnesses of
Crime (‘ECOSOC Guidelines’ or ‘Guidelines’). Chapter XIII of the Guidelines deals
with the right to reparation, affirming in paragraph 35 that:  ‘child victims should,
wherever possible, receive reparation in order to achieve full redress, reintegration and
recovery. Procedures for obtaining and enforcing reparation should be readily accessible
and child-sensitive’. The Report of the Secretary-General on the implementation of
the Resolution adopted in 2005,307 based on information received from member states,
noted the existence of a right to reparation in several countries, but only a few countries
reported having reintegration and/or rehabilitation programs for child victims.308
Special rapporteurs appointed by the former UN Human Rights Commission have
noted or emphasized the right to reparations. A report of the special rapporteur on vio-
lence against women, its causes and consequences refers to the need for legal remedies
for victims, including an individual right to compensation, rehabilitation, and access

a ‘right to pursue redress’ with the unencumbered right to redress. Claire Charters, ‘Reparations for
Indigenous Peoples: Global International Instruments and Institutions’, in Frederico Lenzerini, (ed.),
Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford, 2008), 170–171.
297
  Article 40, UNDRIP. 298
  Article 8(2), UNDRIP.
299
  Article 11(2), UNDRIP. 300
  Article 12(2), UNDRIP.
301
  Articles 11(2) and 12(2), UNDRIP.    302  Article 10, UNDRIP.
303
  Article 28(1), UNDRIP. 304
  Article 28(2), UNDRIP.
305
  See Charters, supra n. 296. 306
  Article 28(2), UNDRIP.
307
  Report of the Secretary-General on ‘The Implementation of the Guidelines on Justice in Matters
involving Child Victims and Witnesses of Crime’, E/CN.15/2008/11, 29 January 2008.
308
 Ibid, 11.
78 The Conceptual Framework

to social services in the context of the permanent international criminal court, and to
national mechanisms to provide redress for victims, including compensation for injuries
and costs, as well as the provision of economic, social, and psychological assistance to
victim-survivors of sexual violence during times of armed conflict.309 The progress report
of the special rapporteur on the adverse effects of the illicit movement and dumping of
toxic waste on the enjoyment of human rights recommends that national institutions
‘guarantee effective means of redress so that victims can obtain adequate compensation
or reparation, and to propose remedies to rectify the situation and to prevent the recur-
rence of illicit practices’.310
Following the contentious discussions over reparations at the 2001 Durban
World Conference against Racism, Racial Discrimination, Xenophobia and Related
Intolerance, held from 31 August to 8 September 2001, the UN General Assembly
requested annual reports from the High Commissioner on Human Rights on the imple-
mentation of the Durban Declaration and Programme of Action. In 2003, the Office
of the United Nations High Commissioner for Human Rights organized a regional
workshop on the adoption and implementation of affirmative action policies for people
of African descent in the Latin American and Caribbean region. The conclusions of
the workshop stated that affirmative action is a means of addressing and overcoming
injustice and inequities based on racism and discrimination and must be incorporated
into domestic policies. It also constitutes a provisional means to overcome historical
injustices. The conclusions expressly viewed affirmative action as ‘closely bound up with
the concept of reparation’. On the specific issue of redress for discrimination, the work-
shop recommended to states a variety of measures, including repeal of discriminatory
legislation, affirmative action in contracts and appointments, free legal assistance and
greater resources for evidence-gathering, recognition of ‘the right of the victims of dis-
criminatory treatment to redress or compensation, including compensatory measures
such as community service to be carried out for the benefit of organizations of people
of African descent by those found responsible for discriminatory treatment’, and state
action to ensure the existence of widely available mechanisms for bringing complaints
and lawsuits related to racial discrimination.
In 2008, regional preparatory meetings were held for the Durban Review Conference
and disagreement again emerged over reparations for slavery and colonialism. At the
Asian meeting, the participating states expressed appreciation ‘for the few expressions
of regret or remorse or apologies or payment of reparations or restitution of cultural
artefacts’ since adoption of the Durban program of action and called on remaining states
to honour the memory of the victims of past tragedies, apologize and pay reparations,
restitute art objects, historical artefacts and documents to the countries of origin, and
establish partnerships of debt relief and other forms of aid.311 In contrast, the EU referred
only to current remedies for current victims of racism.312
The African meeting was forthright in demanding remedies for historical injustices,313
reiterating that all individual human rights violations and collective violations such as
racial discrimination should be condemned and that appropriate remedies must be pro-
vided, and emphasizing that the right of access to justice is of special importance to victims
of racial discrimination in the light of their vulnerable situation, socially, culturally and
economically, and that the principle of equality of victims in legal systems is meaningless

309
 E/CN.4/1998/54. 310
  E/CN.4/1998/10, para. 103.
311
 A/Conf.211/PC.3/5, 10 Oct. 2008, Reports of Preparatory Meetings and Activities at the
International Regional and National Level (Durban Review Conference—Asian region), paras. 44-45.
312
  A/CONF.211/PC.3/6, 13 Oct. 2008. 313
  A/CONF.211/PC.3/4, 3 Sept. 2008.
 Sources and General Content of the Law of Remedies 79

unless it is accompanied by affirmative action. The African states called on the Durban
Review Conference to address the issue of reparations for people of African descent. Like
the Asian meeting, this one acknowledged those states that made formal apologies to the
victims of colonialism and past historic injustices to achieve healing and reconciliation
and urged states that have not done so to issue expeditiously formal apologies.
Also to be considered among the instruments setting forth the right to remedies are the
‘general comments’ issued by UN treaty bodies. The Human Rights Committee (HRC)
in 2004 adopted General Comment 31 ‘The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant’, to replace an earlier comment on the same
topic.314 It addresses ‘the overarching framework of duties of states parties’ set forth in
Article 2, including the obligation to provide redress for violations by private parties as
well as by state agents. In particular, Article 2(3) requires that states parties ensure to
individuals accessible, effective, and enforceable remedies to vindicate their rights.
General Comment 31 notes that ‘the Committee attaches importance to States
Parties’ establishing appropriate judicial and administrative mechanisms for address-
ing claims of rights violations under domestic law’.315 Administrative mechanisms in
particular may serve to investigate allegations of violations promptly, thoroughly and
effectively through independent and impartial bodies. ‘A failure by a State Party to inves-
tigate allegations of violations could in and of itself give rise to a separate breach of the
Covenant’.316
The General Comment affirms that Article 2(3) requires states parties to make repara-
tion to individuals whose rights have been violated. This duty generally entails appropriate
compensation, but, where appropriate, reparation can also involve restitution, rehabilita-
tion, 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. Further, the duty to prosecute applies to viola-
tions of the Covenant that amount to criminal acts under either domestic or international
law. The Committee also notes the possible need for provisional or interim measures to
avoid continuing violations and repair harm at the earliest possible opportunity.
General Comment 31 was followed three years later by the adoption of the related
General Comment 32, on the right to a fair and public hearing by a competent inde-
pendent and impartial tribunal.317 ICCPR Article 14 specifies the right to equality
before courts and tribunals and to a fair trial. According to the Committee, this guar-
antee’s importance to human rights protection and the rule of law means that a general
reservation to the right to a fair trial would be incompatible with the object and purpose
of the Covenant and the guarantees of fair trial may never be made subject to measures
of derogation that would circumvent the protection of non-derogable rights;318 in other
words, the fundamental principles of fair trial, including the presumption of innocence,
are guaranteed at all times.
Equality of access requires parties to proceedings to be treated without any
discrimination319 and during proceedings, ‘[t]‌he requirement of competence, independence

314
  CCPR/C/74/CRP.4/Rev.3, 5 May 2003, The Nature of the General Legal Obligation Imposed on
States Parties to the Covenant, in United Nations, Compilation, supra n.111, 192.
315
  Ibid, para. 15. An earlier draft said that the Committee attached ‘great’ importance to the topic,
but the qualifier was dropped in the final version.
316
  Ibid, para. 14. 317
  CCPR/C/GC/32, 23 Aug. 2007. 318
  Ibid, paras. 5–6.
319
  See Comm. No. 202/1986, Ato del Avellanal v. Peru, para. 10.2 (rejecting a state’s law that had
the effect of excluding married women from access to courts by only allowing men to represent marital
property). On the imposition of fees that might limit access to justice, see Comm. No. 64/1995, Lindon
v. Australia, para. 6.4.
80 The Conceptual Framework

and impartiality of a tribunal in the sense of article 14, para. 1, is an absolute right
that is not subject to any exception’.320 General Comment 32 makes clear that none
of the requirements means the absence of error on the part of the competent tribunal.
Consistent with the notion of subsidiarity, it is generally for the courts of states parties to
the Covenant to review facts and evidence, and apply domestic legislation, in a particular
case, unless it can be shown that such evaluation or application was clearly arbitrary or
amounted to a manifest error or denial of justice, or that the court otherwise violated its
obligation of independence and impartiality.
The third General Comment of the Committee on Economic, Social and Cultural
Rights (ESC Committee) also concerns the nature of state obligations, in this instance
pursuant to Article 2(1) of the Covenant on Economic, Social and Cultural Rights.
Comment 3 proclaims that appropriate measures to implement the Covenant might
include judicial remedies with respect to rights that may be considered justiciable. It spe-
cifically points to the non-discrimination requirement in the treaty and cross-references
to the right to a remedy in the Covenant on Civil and Political Rights. A number of other
rights also are cited as ‘capable of immediate application by judicial and other organs’.321
General Comment 9 on the domestic application of the Covenant322 elaborates
on the earlier text, with a focus on the issue of remedies. Referring to Article 8 of the
Universal Declaration of Human Rights, the ESC Committee indicates that a state party
seeking to justify its failure to provide any domestic legal remedies for violations of eco-
nomic, social, and cultural rights would need to show either that such remedies are not
‘appropriate means’ to give effect to the rights or that, in view of the other means used,
they are unnecessary. According to the ESC Committee, ‘it will be difficult to show
this and the Committee considers that, in many cases, the other means used could be
rendered ineffective if they are not reinforced or complemented by judicial remedies’.323
In general, the ESC Committee indicates that the rights contained in the Covenant
should operate ‘directly and immediately’ within the domestic legal system of each state
party, enabling individuals to seek enforcement of them before national courts and tri-
bunals. While judicial remedies are not always required, any administrative remedies
should be accessible, affordable, timely, and effective; judicial appeal would often be
appropriate. For rights such as non-discrimination, the Committee finds that ‘some
form of judicial remedy would seem indispensable in order to satisfy the requirements
of the Covenant’. For other provisions, ‘there is no Covenant right which could not, in
the great majority of systems, be considered to possess at least some significant justicia-
ble dimensions . . . The adoption of a rigid classification of economic, social and cultural
rights which puts them, by definition, beyond the reach of the courts would thus be
arbitrary and incompatible with the principle that the two sets of human rights are indi-
visible and interdependent’.324

320
 Human Rights Committee, GC 32, supra n.  317, para. 19, citing Comm. No. 262/1987,
Gonzalez del Rio v. Peru, para. 5.2.
321
  United Nations, Compilation, supra n. 111, 15, para. 5. The rights are those contained in Arts. 3,
7(a)(i), 8, 10(3), 13(2)(a), 13(3), 13(4), and 15(3).
322
  CESCR, General Comment No. 9:  The domestic application of the Covenant, E/1999/22,
United Nations, Compilation, supra n. 111, 55.
323
  Ibid, para. 3.
324
  Ibid, para. 10. For a similar focus on justiciability of rights, see Committee on the Rights of
the Child, General Comment No. 5: General measures of implementation of the Convention on the
Rights of the Child, emphasizing the need for effective child-sensitive remedies to redress violations,
including compensation, measures to promote physical and psychological recovery, rehabilitation and
reintegration.
 Sources and General Content of the Law of Remedies 81

In one of its general recommendations, the Committee on the Elimination of

Discrimination against Women announced that states parties should make more use of
temporary special remedial measures such as positive action, preferential treatment, or
quota systems to advance women’s integration into education, the economy, politics, and
employment.325
In General Recommendation No. 27 on Article 6 of the CERD Convention, the
CERD Committee called for redress for acts of racial discrimination and racial insults
that diminish a person’s self-worth and reputation. The Committee notified states that,
in its opinion, the right to seek just and adequate reparation or satisfaction for any
damage suffered as a result of such discrimination is not necessarily secured solely by
the punishment of the perpetrator of the discrimination; courts and other competent
authorities should consider awarding financial compensation for damage, material or
moral, suffered by the victim.326
CERD has been particularly interested in effective remedies for vulnerable groups
such as peasant and indigenous peoples, migrant workers, and minority groups such as
the Roma.327 CERD has concluded that effective remedies are often unavailable to those
who are most in need of them because certain categories of people, especially undocu-
mented workers, trafficked women and children, and similar groups, fear intimidation,
retaliation, or expulsion and thus avoid seeking reparation.
In sum, there are many common aspects to the approach to reparations of UN treaty
bodies. All of the monitoring groups strongly affirm the right of access to justice. They
also adhere to the view that substantive reparations are a right of victims, but that the
kind and scope of the reparations will vary according to the nature of the violation and
needs of the victims. Prosecution of perpetrators has not been a focus except where the
violations amount to international crimes.

3.3  International Humanitarian Law

Humanitarian law norms on remedies date back to the earliest international treaties
on this topic.328 Article 3 of the 1907 Hague Convention (IV) Regarding the Laws
and Customs of Land Warfare obliges contracting parties to pay compensation for a
violation of the regulations. Kalshoven found in the travaux preparatoires that Article
3 of the Hague Convention (IV) of 1907 was intended to confer an individual right to
compensation.329 Tomuschat disagrees, stating that there are ‘no clues whatsoever’ that
this article was ever understood to mean a right of individual claims.330

325
  General Recommendation No. 5 (Seventh Session, 1988), A/43/38, reprinted in ibid, 235. See
also General Recommendation No. 23 (Sixteenth Session, 1997), reprinted in ibid, 262.
326
  General Recommendation No. 26 (Fifty-sixth Session, 2000), in United Nations, Compilation,
supra n. 111, 218.
327
  General Recommendation No. 27 (Fifty-Seventh Session, 2000), on Discrimination against
Roma: in United Nations, Compilation, supra n. 111, 219.
328
  See, generally: Christine Evans, The Right to Reparation in International Law for Victims of Armed
Conflict (Cambridge, 2012).
329
  F. Karlshoven, ‘State Responsibility for Warlike Acts of the Armed Forces’, (1991) 40 Int’l &
Comp. L.Q. 827, 830. See also C. Greenwood, ‘International Humanitarian Law’, in F. Kalshoven (ed.),
The Centennial of the First International Peace Conference (2000), 161–259; L. Zegveld, ‘Remedies for
Victims of International Humanitarian Law’, pp. 497–526; (2003) 85 International Review of the Red
Cross, 497–526.
330
  Christian Tomuschat, ‘Reparation in Favor of Individual Victims of Gross Violations of Human
Rights and International Humanitarian Law’, in Marcelo G. Kohen (ed.), Promoting Justice, Human
Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch, 569, 576.
82 The Conceptual Framework

The report of the International Commission of Inquiry on Darfur states that even if
Article 3 of the Hague Convention (IV) of 1907 was initially not intended to provide for
compensation for individuals, the emergence of human rights in international law has
altered the law of state responsibility and created the right to a remedy whenever gross
violations of rights occur.331 Yet, debate remains in doctrine and practice over whether
the right to a remedy exists for violations committed in times of an armed conflict or
is displaced by more limited rules of humanitarian law. Human rights bodies assert a
robust right: American Convention Article 27(2) prohibits the suspension of judicial
guarantees essential for the protection of rights during an armed conflict, a provision
interpreted to include the right to an effective remedy and redress.332 The Human Rights
Committee has similarly found the obligation to provide effective remedies for a viola-
tion of the human rights found in the ICCPR is inherent in the Covenant as a whole
and of such a fundamental nature that it has to be respected even during a state of
emergency.333
Article 91 of Additional Protocol I to the Geneva Conventions of 12 August 1949 and
Relating to the Protection of Victims of International Armed Conflicts supplements the
earlier Hague Rules and establishes that any party to a conflict which violates the provi-
sions of the Geneva Conventions or the Protocol ‘shall . . . be liable to pay compensation’.
A specific obligation of restitution is found in the 1954 Convention for the Protection
of Cultural Property in the Event of Armed Conflict.334 On a bilateral basis, the peace
agreement of December 2000 between Ethiopia and Eritrea335 established a neutral
claims commission to arbitrate all claims between the two governments and between
private entities for loss, damage or injury related to the conflict and resulting from viola-
tions of international humanitarian law or other violations of international law.
In other practice, arbitral tribunals set up under Article 304 of the Treaty of Versailles
provided direct access by individuals to adjudicate claims of war damage suffered as a
consequence of ‘exceptional war measures’ affecting the property of claimants, except
when resulting from belligerent activities. The Franco-German tribunal decided more
than 20,000 such claims in ways similar to modern mass tort litigation. An inter-state
tribunal set up in 1921 between the US and Germany by the Berlin Peace Treaty heard
13,500 claims in two years.336 Such a tribunal, while costly to operate, was seen to have

For case law, see: Presidenza Consiglio Ministri c Markovic e altri (Cass Sez Un, No. 8517, 5 June 2002),
reproduced in (2002) 12 Italian YB Int’l L. 292 (victims of 1999 NATO bombing of Belgrade cannot
sue against ‘act of government’); Distomo case, Bundesgerichshof, Judgment of 26 June 2003 (‘IHL does
not provide for a basis of individual claims to reparations’). Japanese courts concur and have rejected all
individual claims for World War II reparations. See: H. Fujita, I. Suzuki and K. Nagano (eds.), War and
the Rights of Individuals. Renaissance of Individual Compensation (1999). H. B. Shin, ‘Compensation for
Victims of Wartime Atrocities: Recent Developments in Japan’s Case Law’ (2005) 3 JICJ 187.
331
 Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General pursuant to Security Council Resolution 1564, 25 January 2005, para. 598.
332
  Advisory Opinion OC-9/87 on Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8
American Convention on Human Rights, 6 October 1987) Series A no. 9, paras. 22–4.
333
  General Comment 29 on States of Emergency (Article 4) of the UN Human Rights Committee,
CCPR/C/21/Rev. I/Add.11, para. 14.
334
  Other obligations to restore property stolen during wartime are found in the peace treaties of the
Second World War. See e.g. State Treaty for the Re-establishment of an Independent and Democratic
Austria (15 May 1955) 217 UNTS 2949.
335
  Agreement between the Government of the Federal Democratic Republic of Ethiopia and the
Government of the State of Eritrea, (12 Dec. 2000), art. 5, (2001) 40 ILM 260.
336
  See E. Borchard, ‘The Opinions of the Mixed Claims Commissions, United States and Germany,
Part I’ (1925) 19 AJIL 133 and Part II (1926) 20 AJIL 69.
 Sources and General Content of the Law of Remedies 83

the advantage of systematic treatment of claims with general decisions establishing crite-
ria for the determination of claims, valuation of damages, and compensation.
International proceedings on compensation for violations committed during inter-
national armed conflicts are discussed in Chapter 5, but it is worth noting here that
several of the more recent processes for reparations enhance the standing of individu-
als. The wording of Article 5(l)(a) of the Provisional Rules for Claims Procedure for
the United Nations Compensation Commission indicated that the procedure was
not to enforce the rights of claimant states, but rather was an exercise of diplomatic
protection.337 Claims filed by States had to be accompanied by the signature of the
individual whose claim is covered and the claimant states had to give assurances
that any damage paid would be distributed to the individual claimant if the claim is
successful.338 Under certain circumstances, natural and legal persons could file their own
claims directly. In the Ethiopia/Eritrea arbitral proceedings, the Commission held that
non-nationals of either state could file claims directly, because ‘the claim remains the
property of the individual and that any eventual recovery of damages should accrue to
that person’.339
There has been a certain convergence of humanitarian and human rights law in
respect to extrajudicial killings, torture and cruel, inhuman and degrading treatment,
discrimination, slavery, and the requirement of due process (fair trial). These are all part
of Common Article 3 of the Geneva Conventions and also constitute non-derogable
human rights. The ICJ has said that ‘a great many rules of humanitarian law applicable in
armed conflict are so fundamental to the respect of the human being…[that they] con-
stitute intransgressible principles of customary international law’.340 Similarly, a study
by the International Committee of the Red Cross in 2005 concluded that in principle
human rights law continues to apply during armed conflicts.341 This study asserts that
state responsibility for reparations has become established as a customary norm appli-
cable to international and non-international armed conflicts.342 In addition to these
references, it is notable that human rights tribunals have applied their guarantees in the
context of armed conflict.343

3.4  International Criminal Law

Some, but by no means all, violations of human rights are deemed criminal acts by
national and international law. Genocide, crimes against humanity, and war crimes are
not only human rights violations, they are international crimes. Agreements governing

337
  UNCC Provisional Rules for Claims Procedure, Art. 5(1); Peace Agreement, Art. 5(9). See Veijo
Heiskanen, ‘The United Nations Claims Commission’, 296 RdC (2002) 259, 328.
338
  UN Doc. S/AC.26/Dec.10 (26 June 1992).
339
  Civilians Claims, Eritrea’s Claims 15, 16, 23 and 27–32, para. 19.
340
  Advisory Opinion on the Legality of the Threat or Use of Force of Nuclear Weapons, Advisory
Opinion, 1996 ICJ Rep. para. 79.
341
  J-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, 3 vols
(2005).
342
  Rule 150: ‘A State responsible for violations of international humanitarian law is required to make
full reparation for the loss or injury caused’. See the Official ICRC Commentary, paras. 3645-61, for
guidance on this article. The assumption seems to be that this will occur through an inter-state process,
with no indications about internal armed conflicts.
343
  For the European Court see, e.g. Mahmut Kaya (due diligence to prevent violations in the context
of armed conflict); Khashiyev and Akayeva v. Russia, (2005); Isayeva v. Russia, (2005); Korbely v. Hungary
(2008).
84 The Conceptual Framework

these crimes require states to cooperate with each other in the investigation, prosecution
and adjudication of those charged with the included crimes and the punishment of those
convicted. In 1971, the United Nations General Assembly affirmed that a state’s refusal
to cooperate in the arrest, extradition, trial, and punishment of persons accused or con-
victed of war crimes and crimes against humanity is ‘contrary to the United Nations
Charter and to generally recognized norms of international law’.344 The Commentary to
the Geneva Conventions also confirms that the obligation to prosecute is ‘absolute’ for
grave breaches committed in the context of international armed conflicts.345
Genocide, war crimes and crimes against humanity have been singled out for inclu-
sion in the jurisdiction of the International Criminal Court and ad hoc tribunals for the
former Yugoslavia and for Rwanda.346 In addition, human rights treaties concerning
torture, disappearances, slavery and slave-like practices call for states parties to crimi-
nalize the relevant acts under national law. Yet, despite the recognition of the right to a
remedy in international law, neither the International Criminal Tribunal for the former
Yugoslavia nor the International Criminal Tribunal for Rwanda, established by the UN
Security Council in 1993 and 1994, respectively, was authorized to award reparations to
victims of war crimes, crimes against humanity, and genocide.
In contrast and as discussed further in Chapter 6, Article 75 of the Rome Statute
mandates the International Criminal Court to establish principles relating to repara-
tions, including restitution, compensation and rehabilitation and allows it upon request
or on its own motion to determine the scope and extent of any damage, loss and injury to
or in respect of victims, whose views are to be taken into account.347 Orders of reparation
are issued directly against a convicted person. The details of the Court’s case-based repa-
rations scheme were left to be clarified through the drafting of the Rules of Procedure
and Evidence.348 In addition to defining victims, including the possibility of collective
awards, and outlining the types of reparations awards, the Rules address issues relating
to the evaluation and processing of reparations claims.
The ICC negotiators also agreed to create a Trust Fund for the benefit of victims
of crimes falling within the jurisdiction of the ICC and their families. An award to
victims based on their ‘damage, loss and injury’ may be made ‘through’ the Trust Fund
for Victims. The Trust Fund has already implemented several dozen projects for victims
of crimes against humanity and war crimes in the Democratic Republic of Congo and
Uganda.
Regionally, in 1983, the Council of Europe adopted the European Convention on
the Compensation of Victims of Violent Crimes.349 The principle of social solidarity
underlies the Convention’s requirement that the state provide subsidiary state compen-
sation to victims of violent crimes if the offender cannot be identified or is without suf-
ficient resources to provide redress to the victim(s) (Art. 2). Article 4 of the Convention

344
  Resolution on War Criminals, G.A. Res. 2840 (XXVI), 26 UN GAOR Supp. No. 29, 88, UN
Doc. A/8429 (1971).
345
  Virginia Morris and Michael Scharf, An Insider’s Guide to the International Criminal Tribunal for
the Former Yugoslavia: A Documentary History and Analysis (1995), 114, nn. 341, 356.
346
  On the jurisdiction of international criminal tribunals to afford redress to victims see infra
Chapter 5.5.
347
  Article 75 also allows the Court to invite representations from or on behalf of the convicted per-
son, other interested persons or interested States. Orders of reparations may be made through the Trust
Fund where appropriate.
348
  International Criminal Court, Rules of Procedure and Evidence, UN Doc. PCNICC/2000/1/
Add.1, R. 85 (2000).
349
  European Convention on the Compensation of Victims of Violent Crimes (24 Nov. 1983) ETS
No 116.
 Sources and General Content of the Law of Remedies 85

provides for national authorities to set both a minimum and a maximum limit for com-
pensation. Compensation is to be afforded even if the offender cannot be prosecuted or
punished.
Among declarative texts, the 1985 United Nations Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power350 contains broad guarantees for those
who suffer pecuniary losses, physical or mental harm, and ‘substantial impairment of
their fundamental rights’ through acts or omissions, including abuse of power. Victims
are entitled to redress and to be informed of their right to seek redress. The Declaration
specifically provides that victims of public officials or other agents who, acting in an offi-
cial or quasi-official capacity, violate national criminal laws, should receive restitution
from the state whose officials or agents are responsible for the harm inflicted. Abuse of
power that is not criminal under national law but that violates internationally recognized
norms relating to human rights should be sanctioned and remedies provided, including
restitution and/or compensation, and all necessary material, medical, psychological, and
social assistance and support.

3.5 Conclusions
The obligation to provide effective remedies is an essential component of international
human rights law. A state that fails to fully protect individuals against human rights
violations or that denies remedial rights commits an independent, further breach of
law. International instruments do not clarify, however, what are considered to be ‘effec-
tive’ remedies. Nor do they indicate what remedies should be made available through
international procedures in the event a state fails to afford the necessary redress. It is
thus necessary to look at the theory and practice of national and international tribunals
to determine what constitutes an effective remedy. As will be shown in the chapter that
follows, international tribunals are increasingly determined to resolve the human rights
problem that led the victim to bring the case.
In the past, international tribunals seemed unwilling to recognize the importance of
their decisions, not only in providing a remedy for past abuse, but in persuading those
in power to comply with human rights norms in the future. Now they seem more con-
vinced that effective enforcement of norms can influence the incidence of violations.
Municipal legal concepts351 and the law of state responsibility influence remedies for
international law violations and there has been considerable expansion of the scope of
redress afforded during the past decade. Consistency and principled decision-making

350
  UNGA Res. 40/34 (29 November 1985). Paragraph 4 states that victims are entitled to access
to the mechanisms of justice and prompt redress for the harm they have suffered. Procedures are to be
expeditious, fair, inexpensive and accessible. Where appropriate, restitution should be made to victims,
their families or dependants by offenders or third parties responsible for their behaviour (para. 8).
Victims of abuse of power are defined as those harmed by acts which do not yet constitute violations
of national criminal laws. In 1990, the Eighth United Nations Congress on the Prevention of Crime
and the Treatment of Offenders (Havana, Cuba, 27 Aug.–7 Sept. 1990), recommended that states
base national legislation upon the declaration and requested the United Nations Secretary-General to
study the feasibility of establishing an international fund for victims of transnational crimes: Report of
the Congress, A/CONF.144/28. The Council of Europe produced the European Convention on the
Compensation of Victims of Violent Crimes (1983), a 1985 recommendation R(85) 11 on the position
of the victim in the framework of criminal law and procedure, and a 1987 recommendation R(87)21 on
assistance to victims and prevention of victimization.
351
  References to municipal law principles are particularly prevalent on payment and rate of interest
and lost profits. Specific references are few and there is no systematic borrowing from municipal law.
86 The Conceptual Framework

can help avoid forum shopping, provide remedies for victims, incite national action to
bring wrongdoers to justice, and enhance the legitimacy of international tribunals.
It appears from the law of state responsibility for injury to aliens that restitution is
often impossible due to the nature of the injury and that compensation for material and
moral harm therefore constitutes the general form of reparation. The aim is to wipe out
the consequences of the harm. In addition, a strong deterrent element can be seen in
many of the awards of satisfaction, where the state claim and resulting award seem to
make use of measures intended to redress dignitary harm, ensure non-repetition of the
violation and to deter other potential wrongdoers.
There are significant differences in the circumstances surrounding the law of repa-
rations for injury to aliens and remedies for violations of human rights. In the former
context, the state is in theory asserting that its own right has been violated and, thus,
issues of state power and the threat of reprisals have been important in claims practice
relative to injury to aliens. There may be bias in the amounts of the awards as a result,
and this may limit the utility of using them as a measure of appropriate compensatory
damages in human rights cases. Nonetheless, the wide range of measures of satisfaction
that generally have been granted lend meaning to the term ‘satisfaction’ in the European
Convention on Human Rights and suggest that the European Court of Human Rights
has broader powers than it has used so far to ensure respect for the Convention.
A second difference between state responsibility for injury to aliens and human rights
law is in regard to domestic remedies. The decision to afford a domestic remedy formerly
was left to the discretion of the wrongdoing state, subject to the vague and uncertain
doctrine of denial of justice. Today, human rights law requires states to afford an effective
remedy for any violation of rights.
Finally, the primary role of restitution in international law has generally not been
mirrored in human rights law specifically because, like injury to aliens, many of the
violations are irreparable. Where life has been lost or other personal injury done, the
individual cannot be placed back in the situation that existed before the violation. For
this reason, too, the declaratory judgment, which is used in the European human rights
system, is not viewed as adequate in most circumstances to repair injury that has been
done. Compensation, measures of satisfaction and guarantees of non-repetition are
increasingly sought and awarded.
The powers of international tribunals to afford remedies are rarely specified in detail.
The general jurisdictional provisions of treaties and dispute settlement agreements allow
many tribunals to develop remedies through the exercise of inherent or implied judicial
powers. In this regard, it should be noted that a proposal to include in the statute of the
Permanent Court of International Justice a provision permitting the court to ‘define the
nature of the crime, to fix the penalty, and to decide the appropriate means of carrying
out the sentence’352 was rejected in part because of a belief that the Permanent Court
itself could decide upon such matters.353 The same is true of existing tribunals. This
presents a challenge and an opportunity for judges and other decision-makers to draw
upon principles and practices that allow development of full and effective remedies that
further the purposes of human rights law.

352
  Records of the First Assembly of the League of Nations, 1 Committees 494.
353
  According to Eagleton, the court, as finally established, had only ‘the power to assess penal dam-
ages’. Eagleton, supra n. 11, 64.
 PA RT  I I
THE INSTITUTIONAL
F R A M E WO R K
 4
Domestic Remedies

Today, most states accept that individuals are entitled to a remedy if they have suffered some
injury, whether physical, pecuniary, or moral, proximately caused by a wrongful act attribut-
able to the state. The standard or duty of care may range from strict liability to accountability
for intentional or specifically motivated behaviour. Most written constitutions explicitly
secure remedial rights; where they do not, judicial bodies often infer a remedy. In the English
case of Ashby v. White,1 Chief Justice Holt proclaimed: ‘If the plaintiff has a right, he must
of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the
exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy;
for . . . want of a right and want of remedy are reciprocal’.2 Chief Justice Marshall of the United
States Supreme Court similarly affirmed the power of the judiciary to fashion a remedy in
Marbury v. Madison: ‘The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an injury. One of the
first duties of government is to afford that protection’.3 Marshall also declared that ‘the right
of coercion is necessarily surrendered to government, and this surrender imposes on gov-
ernment the correlative duty of furnishing a remedy’.4 Indeed, judicial tribunals ‘are estab-
lished . . . to decide on human rights’.5 These and more recent cases, such as the Indian court
opinion in People’s Union for Democratic Rights v. State of Bihar6 are fundamentally about the
judicial power to infer a cause of action and a remedy from the existence of substantive rights.7
Whether remedies are available for acts that violate human rights treaties or custom-
ary law is a more complex issue. In those states that have incorporated one or more
international instruments into domestic law, actions based upon them may be possible.8
In states that adhere to the doctrine of self-executing and non-self-executing treaties, the
attitude of the courts will depend on how the judges assess the object and purpose of
the agreement, the suitability of the right in question for judicial enforcement, and the
attitude of the political branches of government.9 Where states have incorporated one or
more human rights instruments, the law often contemplates judicial remedies. The Human
1
  Ashby v. White, 92 Eng. Rep. 126 (K.B. 1703). The plaintiff claimed he was deprived of a right
to vote and brought an action for damages. The majority on the King’s Bench held for the defendant,
indicating that the interest in voting was protected only by the criminal law and not by civil law in the
absence of a clear statement by Parliament. The Chief Justice disagreed in an opinion that was accepted
by the House of Lords, which reversed the King’s Bench and entered judgment for the plaintiff.
2
 Ibid, 136. 3
  Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
4
  Ogden v. Saunders, 25 U.S. (Wheat.) 213, 346–47 (1827).
5
  Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810).
6
  People’s Union of Democratic Rights v. State of Bihar, AIR (SC) 355 (1978) involved the police
shooting into a peaceful procession, killing twenty-one persons. The court found the government’s ex
gratia payment of 10,000 rupees inadequate, stating that ‘it is a normal feature of which judicial notice
can be taken’ that the state comes forward to compensate for human rights violations. The court ordered
an additional 20,000 rupees as death compensation and 5,000 rupees for injury ‘without prejudice to
any just claim for compensation that may be advanced by the victims’.
7
  S. Bandes, ‘Reinventing Bivens: The Self-executing Constitution’ (1995) 68 S. Cal. L. Rev. 289.
8
  E.g., in India international treaties do not automatically become part of national law, but instead
have to be incorporated by a legislative act. See State of Madras v. G.G. Menon, AIR (SC) 517 (1954).
9
  For possible remedies in the United States, see David Sloss, ‘Ex parte Young and Federal Remedies
for Human Rights Treaty Violations’ (2000) 75 Wash. L. Rev. 1103.
90 The Institutional Framework

Rights Act 1998, enacted in the United Kingdom to incorporate the European Convention
on Human Rights into domestic law, was followed by a report of the Law Commission and
the Scottish Law Commission on damages under the Act.10 According to the report, the
primary principle governing the award of compensation by a court is that the victim should
as far as possible be placed in the same situation as if the violation of his or her rights had
not occurred.
If both the state and the agent are potentially liable, the question of whether the state
should be held primarily or secondarily responsible receives different answers. Most states
accept joint responsibility for damages caused by the fault or negligence of a public official,11
but in a few states, the agent is primarily liable.12 In other jurisdictions, the state is the pri-
mary party and the agent is not liable to the victim, but must reimburse the damages paid
by the state if the actions were wilfully or grossly negligent. In yet a third group, the state and
employee are jointly and severally liable.13
The state’s obligation to afford access to justice and redress for violations of human
rights law has been elaborated in considerable detail in the jurisprudence of global and
regional human rights bodies. The jurisprudence has been stimulated in large part by the
requirement that victims exhaust adequate and effective local remedies before presenting
an international claim. Application of the local remedies requirement and its exceptions
has inevitably involved human rights tribunals in assessing local remedies to determine
whether they are adequate, effective, and reasonably swift. In merits determinations as well,
human rights tribunals are often asked to decide whether the complainant’s right to a rem-
edy has been violated. In assessing these claims, the tribunals have set forth standards on
the procedural and substantive demands of effective remedies, including indicating when
state authorities must impose sanctions or initiate criminal investigation, prosecution, and
punishment of perpetrators.
Remedies for international human rights violations serve purposes similar to those
of other remedies in national law, particularly those related to constitutional torts.14

10
  Law Commission, Scottish Law Commission, ‘Damages Under the Human Rights Act’ Cm. 4853
(2000).
11
  In Morocco, ‘the State and the municipalities are responsible for any injury caused directly by
the functioning of their departments and by errors committed by their employees in the course of
the duties’: Moroccan Code of Obligations and Contracts, Art. 79, quoted in Right to Restitution,
Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental
Freedoms, Report of the Secretary-General Prepared Pursuant to Commission Resolution 1995/34,
E/CN.4/1996/29/Add.1 (1996), 4. Belgian public administrative agencies are obliged in civil law to
repair harm caused by the illegal acts of their agents: Report to the United Nations on Human Rights in
Belgium, HRI/CORE/1/Add.1/Rev.1. In Greece, also, if the law is violated by a public official acting in
the exercise of his authority, the victim has a right to compensation and the wrongdoer is equally respon-
sible with the state or municipalities and other entities: Art. 105, Civil Code of Greece.
12
  In Ethiopia the state is not liable for employees that have transgressed their function in bad faith
and, in Finland, the state is liable only if a claim against the employee cannot be enforced: State Liability
Act of 1927. In Italy, express prohibition of an act severs any causal link for government liability, but
some courts hold the state liable as long as the injurious act occurs in the performance of the wrong-
doer’s duty. See, generally, G. Eorsi, ‘Private and Governmental Liability for the Torts of Employees and
Organs’, in International Encyclopedia of Comparative Law (Leiden, 1983), vol. XI, 4–167.
13
  Tort Liability Act of 13 June 1969, ch. 2.
14
  Burlington N., Inc. v. Boxberger, 29 F.2d 284, 291 (9th Cir. 1975) (compensatory damages should
restore injured persons to the status they would have had in the absence of injury). See, generally,
D. Laycock, Modern American Remedies: Cases and Materials, 2nd edn. (1994). The primary purpose of
remedies, as discussed supra in Chapter 1, is to provide redress to an injured party for the wrong done.
Where restitution is impossible, giving victims redress restores their rightful position by enabling them
to replace the thing they lost, with damages serving as a substitution for restitution. Where market value
exists (e.g. for injury to property) there is little problem with a money substitute. Where the loss is of
something unique, however, valuation may be difficult and even the concept of value may be dubious.
 Domestic Remedies 91

It is thus appropriate and probably inevitable that international tribunals draw upon
national law, as well as international law, to develop remedies. In turn, as national tribu-
nals hear and decide more cases alleging violations of international human rights norms,
they look to international agreements binding on them and the jurisprudence of inter-
national tribunals. The result is a complex interplay and mutual influence of national
and international law.
Remedial rules on the national level are intertwined with legal procedure and the
social, historical, economical, and technological environment of the legal system. State
liability in most legal systems has been built on the framework of tort law, which addresses
the same set of problems everywhere: the foundation of liability, causation, justifica-
tions or excuses, and remoteness of damage. The relatively homogeneous framework of
remedies, including declaratory relief, damages, restitution, specific performance, and
injunction, is founded on considerations of compensatory justice, deterrence, punish-
ment, and the relationship with other systems of compensation, such as insurance and
welfare.15
The different aims of compensatory justice and deterrence may lead to differ-
ent forms of relief. Remedies may compensate without deterring (insurance) or deter
without compensating (fines). Generally, ‘there is probably widespread agreement that
loss-spreading through compensation is singularly justified when citizens are injured
through no fault of their own by officials whose capacity (and perhaps even motivation)
to injure has been created by the public for public ends’.16 In public law, however, private
law notions such as enterprise liability, contractual risk-shifting, strict liability, punitive
damages, and efficiency have been slow to take root and the compensation of victims
has often been subordinated to other goals. Still, there is a growing view that damages
against large entities must be correlated to the entity’s size and capacity for harm to have
a deterrent effect.17
This chapter examines international human rights law concerning the right to a domes-
tic remedy and the requisites for effective and adequate remedies, including for economic
and social rights.18 As the discussion will indicate, human rights law has come to distin-
guish situations of gross and systematic violations of human rights from other violations.

4.1  The Requirement to Exhaust Local Remedies

Exhaustion of local remedies is both a procedural criterion for the admissibility of an
international claim, whether that claim proceeds as a matter of diplomatic protection or

15
  European states commonly have social security systems and universal health insurance that may
affect compensatory damages and the entitlement to pursue actions against wrongdoers. See Bernhard
Koch and Helmut Koziol (eds.), Compensation for Personal Injury in a Comparative Perspective (Wien,
2003), 407.
16
  Peter Schuck, Suing Government: Citizen Remedies for Official Wrongs (New Haven, 1983), 23.
17
  See the M.C. Mehta case, AIR (SC) 1086 (1987).
18
  Res. 22/5 of the Human Rights Council asked for a study on the right of access to justice
and effective remedy for violations of economic, social and cultural rights. Although the ICESCR
lacks a specific article requiring states parties to provide effective remedies, unlike the ICCPR, the
ESC Committee insists that ‘the United Nations human rights system has consistently recognized
the right to an effective remedy for violations of ESC rights. General Comment 3, para. 2. See also
ICESCR General Comment 3, para. 5; General Comment 9, para. 2; General Comment 12, para.
32; General Comment 14, para. 59; General Comment 15, para. 55; General Comment 18, para.
48; and General Comment 19, para. 77. Notably, also, the Reporting Guidelines for ESC Rights in
the African Charter recommends that states report on the ‘judicial and other appropriate remedies
in place’ enabling victims to obtain redress in cases where their rights have been violated. Para. 2(d).
92 The Institutional Framework

as an individual complaint, and the potential source of a substantive claim for denial of
the right to a remedy.19 The two functions, while separate, overlap considerably and it
has long been recognized that ‘[t]‌he relationship between the local remedy rule and the
State’s duty of providing an adequate judicial protection for . . . rights . . . is so close as to
promote continuous confusion’.20
One possible source of the confusion is the fact that, if a domestic procedure reaches
a final merits conclusion in accordance with domestic law and after fair procedures, the
incompatibility of the judgment with international human rights standards may not
be considered to be a violation of the right to a remedy. Courts are obliged to follow
the law as it exists in the state. The outcome may be reviewed internationally, but not
necessarily for denying the right to a remedy.21 International tribunals are not ‘fourth
instance’ appellate tribunals, where every judicial error is considered to amount to a
denial of a fair trial; international tribunals generally will not examine whether a court
correctly applied domestic law or made procedural mistakes not amounting to a viola-
tion of due process.22
The jurisprudence is not consistent, however. In Europe, it may be legitimate for a
state to deny access to courts under ECHR Article 6 for claims that have no substantive
basis in its national legal order, but if the lack of substantive protection arguably con-
cerns a right guaranteed by the ECHR and no other remedial process is established, the
state may be in breach of the right to a remedy23 and the Court may find a violation of
Article 13.24
There is no obligation for victims to have recourse to remedies that are inadequate
or ineffective.25 Additionally, the European Court applies what it calls a ‘generally

19
  A. Vermeer-Kunzli, ‘Exhaustion of Local Remedies and Denial of Justice’, (2007) 18
EJIL 37–68. See also R. Pisillo Mazzeschi, Esaurimento dei ricorse interni e diritte umani
(Torino, 2004).
20
  A.V. Freeman, International Responsibility of States for Denial of Justice (London, 1938) (reprinted
1970), 406.
21
  See C.F. Amerasinghe, Local Remedies in International Law (Cambridge, 2004), 98.
22
  For a rare decision that accepted that mere error could be examined as a possible due process
violation, see IACHR, Report No. 68/11, Petition 1095-03 (Admissibility) Simeón Miguel Caballero
Denegri and Andrea Victoria Denegri Espinoza v. Peru (2011). In general, the IACHR insists that the
mere fact that the petitioner lost a case in the national courts is not grounds for bringing a petition
to the Inter-American system. The Commission will not substitute its judgment for that of the trier
of fact nor will it substitute its interpretation of a domestic statute or Constitutional norm for that
of a domestic court. The Commission will accept a case if the proceedings in domestic court violated
human rights guarantees of due process or fair hearing or were ineffective to remedy the violation,
for example, if the domestic court lacked the power to strike down legislation incompatible with the
Convention.
23
 See European Court of Human Rights, Powell and Rayner v.  United Kingdom (1990)
Series A 106.
24
  See European Court of Human Rights, Kurt v. Turkey, judgment of 25 May 1998, Reports
1998-III, p. 1152, (1999) 27 EHRR 373. In this disappearance case, the Court found that the failure
to account for her son was a violation of the applicant mother’s Art. 3 rights and of Art. 13, which
imposes an obligation to conduct for the benefit of relatives a thorough investigation. Art. 13 was
seen as broader than the substantive right, requiring an effective investigation into the disappearance
of a person in government custody, entailing a thorough and effective investigation capable of lead-
ing to the identification and punishment of those responsible with effective access for the relatives.
Para. 140.
25
  European Court of Human Rights, Akdivar and others v. Turkey, 1996-IV Reports, 23 EHRR
365, paras. 65–76, citing Ireland v. United Kingdom (1978) Series A 25, 64, para. 159; Aksoy v. Turkey,
judgment of 18 Dec. 1996, Reports 1996-VI, 2275–6, paras. 51–53, (1997) 23 EHRR 553; Mentes
and others v. Turkey, judgment of 28 Nov. 1997, para. 57, 59, Reports 1997-VIII 2693, (1998) 26
EHRR 595.
 Domestic Remedies 93

recognized rule of international law’26 that absolves an applicant from the obligation to
exhaust domestic remedies where there are ‘special circumstances’.27 Such circumstances
may include the passivity of national authorities in the face of serious allegations of
misconduct or infliction of harm by state agents, for example, where they have failed to
undertake investigations or offer assistance.28 Similarly, the African Commission accepts
that the sheer number of violations may demonstrate the absence of local remedies.
Thus, in a case involving Mauritania, the Commission stated that ‘[t]‌he gravity of the
human rights situation in Mauritania and the great number of victims involved renders
the channels of remedy unavailable in practical terms . . .’29
In complaints procedures, human rights tribunals apply a shifting burden of proof
with regard to the exhaustion of local remedies.30 The applicant must first indicate what
efforts were made to exhaust local remedies. It is then incumbent on the government
claiming non-exhaustion to demonstrate the existence of a remedy that was an effective
one available in theory and in practice at the relevant time, one that was accessible, was
capable of providing redress in respect of the applicant’s complaints and offered reason-
able prospects of success. Once this burden has been satisfied, it falls to the applicant
to establish that the remedy was in fact exhausted or was for some reason inadequate or
ineffective in the particular circumstances of the case or that there existed ‘special cir-
cumstances’ absolving him or her from the requirement.
Human rights bodies apply the rule of exhaustion of remedies with some flexibility,
referring to the ‘due allowance’ that must be made for the fact that the rule is applied in
the context of human rights proceedings. According to the European Court, this flex-
ibility and absence of ‘excessive formalism’ means undertaking a realistic assessment of
the general legal and political context in which the remedies operate and the personal
circumstances of the applicant. In a series of Turkish cases, the general situation of vio-
lence in the regions in question was seen to create obstacles to the proper functioning of
the system of the administration of justice, including the securing of probative evidence,
making the pursuit of judicial remedies futile.31
In the African system,32 the African Commission considers that one of its main func-
tions is to redress complaints not remedied at the domestic level, despite the absence of
an express provision in the Charter on the Commission’s authority to indicate remedies.33
The African Charter states that applicants must exhaust local remedies ‘if any, unless it is
obvious that this procedure is unduly prolonged’. (Art. 22(5)). In addition to applying this

26
 European Court of Human Rights, Van Oosterwijck v.  Belgium (1980) Series A  40, 18–19,
paras. 36–40.
27
  Akdivar v. Turkey, supra n. 25, para. 68; Mentes v. Turkey, supra n. 25 para. 57; Austria v. Italy
(Admissibility), 11 Jan. 1961, 4 Y.B. 166. The Court in Akdivar cites the Inter-American Court of Human
Rights, Velásquez-Rodríguez Case (Preliminary Objections) (1987) Series C No. 1 and the Inter-American
Court’s Advisory Opinion on exceptions to the exhaustion of local remedies, (1990) Series C No. 11.
28
  European Court of Human Rights, Selçuk and Asker v. Turkey, 24 Apr. 1998 71 Reports 1998-II
891, (1998) 26 EHRR 477; Akdivar and others, supra n. 25, 1210–11, paras. 65–9 and Mentes, supra
n. 25, 2706, para. 57.
29
  Malawi Afr. Association v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164/97, 210/98, para.
38, 1999–2000 Afr. Ann. Act. Rep., Annex V; Amnesty Int’l v. Sudan, Comm. No. 48/90, 50/91, 52/91,
89/93, Afr. Ann. Act. Rep., Annex V para. 39.
30
 See: Velásquez-Rodríguez, supra n. 27. 31
  See, e.g., the cases cited supra, n. 27.
32
 See, generally, Nsongurua Udombana, ‘So Far, So Fair:  The Local Remedies Rule in the
Jurisprudence of the African Commission on Human and Peoples’ Rights’ (2003) 97 Am. J. Int’l L. 1;
Gino Naldi, ‘Reparations in the Practice of the African Commission on Human and Peoples’ Rights’
(2001) 14 Leiden J. Int’l L. 681.
33
  Free Legal Assistance Group v. Zaire, Comm. No. 23/89, (1997) 4 IHRR 89.
94 The Institutional Framework

express exception to the exhaustion requirement, the Commission has held that internal
remedies need not be pursued in those cases in which it is ‘neither practicable nor desirable’
for the complainants or the victims to pursue such internal channels of remedy.34 Instead,
the admissibility requirement must be applied concomitantly with Article 7, which estab-
lishes the right to fair trial.35 Thus, like other international tribunals, the Commission
requires that ‘the remedy must be available, effective and sufficient’.36 Moreover, the
African Commission insists that remedies must be obtainable from judicial bodies.37
According to the African Commission, a remedy is considered to be available if the
petitioner can pursue it without impediments or make use of it and if its availability is
evident.38 Where the substantive right itself is not provided for or is only inadequately
part of domestic law, ‘there cannot be effective remedies, or any remedies at all’.39 If
national procedures are ousted or wilfully obstructed no remedy exists.40 A remedy to
be effective must offer a prospect of success.41 Effectiveness includes the ability of the
tribunal to decide the issue presented after a fair hearing, including on appeal; thus,
the right to appeal, being a general and non-derogable principle of international law must, where
it exists, satisfy the conditions of effectiveness. An effective appeal is one that, subsequent to the
hearing by the competent tribunal of first instance, may reasonably lead to a reconsideration of
the case by a superior jurisdiction, which requires that the latter should, in this regard, provide all
necessary guarantees of good administration of justice.42
Finally, a remedy must be sufficient, i.e. capable of redressing the violation. If the pro-
cedure is discretionary and incapable of vindicating the right then it is not sufficient.43

4.2  International Standards

The nature and gravity of arguable claims has implications for the range of domestic
remedies that may be required. International tribunals agree that where there are allega-
tions of serious violations, including infringements of the right to life, freedom from
torture, and deliberate destruction of homes and possessions, the right to a remedy
imposes, without prejudice to any other remedy, an obligation on the respondent state
to carry out a thorough and effective investigation of allegations brought to its attention,
an investigation capable of leading to the identification and punishment of those respon-
sible and including effective access for the complainant to the investigative procedure.44

34
  Amnesty Int’l v. Sudan, supra n. 29, para. 31. 35
 Ibid.
36
  Jawara v. The Gambia, Comm. Nos. 147/95, 149/96, para. 31, 1999–2000 Afr. Ann. Act. Rep., Annex V.
37
  Cudjoe v. Ghana, Comm. No. 221/98, para. 13, 1998–9 Afr. Ann. Act. Rep., Annex V.
38
  Ibid, paras. 33–4.
39
  Soc. & Econ. Rights Action Center v. Nigeria, Comm. No. 155/96, 2001–2 Afr. Ann. Act. Rep.,
Annex V, para. 37 [hereinafter SERAC v. Nigeria].
40
  Constitutional Rights Project v. Nigeria, Comm. No. 102/93, 1998–9 Afr. Ann. Act. Rep., Annex V,
paras. 6–7; Modiste v. Botswana, Comm. No. 97/93, 1996–7 Afr. Ann. Act. Rep., Annex X; Jawara v.
The Gambia, supra n. 36, para. 34.
41
  Jawara v. The Gambia, supra n. 36, paras. 32, 38.
42
  Amnesty Int’l v. Sudan, supra n. 29, para. 37.
43
  Constitutional Rights Project v. Nigeria, supra n. 40, para. 10.
44
 In Aksoy v. Turkey, supra n. 25, the European Court established a link between the prohibition
of torture in Article 3 and the Article 13 requirement of a remedy. According to the Court, the funda-
mental importance of the ban on torture means that Article 13 imposes, without prejudice to any other
domestic remedy, ‘an obligation on states to carry out a thorough and effective investigation of incidents
of torture’, ibid, para. 98. The Inter-American and African systems concur. See e.g. Velásquez-Rodríguez,
supra n. 27 (duty to investigate disappearances) and SERAC v. Nigeria, supra n. 39 (duty to investigate
killings and forced evictions).
 Domestic Remedies 95

The European Court held in Krastanov v. Bulgaria45 that in the face of torture com-
mitted in violation of ECHR Article 3, civil and administrative proceedings are inad-
equate; criminal prosecution of the perpetrator is required. Similarly, in Isayeva and
Others v. Russia, the Court found that at least some Article 2 (right to life) violations
require the state to undertake effective prosecution of the persons responsible for the
attack, give the victims full access to the investigation, and provide appropriate compen-
sation for the losses and damage they suffered. These procedural obligations implicit in
ECHR Articles 2 and 3 require a prompt, independent and public investigation not left
to the initiative of the victims.
In the Inter-American system, Article 8 on due process and Article 25 on access
to justice are usually considered together along with Article 1(1), which imposes the
general obligation to respect and ensure rights.46 Article 25 is broader than the cor-
responding ECHR Article 13 in that a remedy must be provided not only for rights
guaranteed by the treaty, but also for rights guaranteed by the constitution and laws
of the state. This has resulted in a large volume of cases finding violations of Article
25, often in conjunction with Article 8. The 2009 Annual Report of the IA Court,
revealed that ninety-four of the 120 cases decided to that point established a vio-
lation of Article 8, and ninety-three found a violation of Article 25, far exceeding
the violations found for all the other guaranteed rights. Also notable, the American
Convention requires a remedy before a court and judicial guarantees are not subject
to derogation or suspension.47
In contrast, neither the ICCPR nor the ECHR include due process and access
to justice on the list of non-derogable rights, but the Human Rights Committee in
General Comment No. 29,48 asserted that states parties may ‘in no circumstances’
invoke the ICCPR Article 4 on states of emergency to deviate from ‘fundamental
principles of fair trial, including the presumption of innocence’ (para. 11). ICCPR
General Comment 32 (2007) calls a fair trial a key element of human rights protection
and a procedural means to safeguard the rule of law. As such, it may never be made
subject to measures of derogation that would circumvent the protection of
non-derogable rights.49

45
  Judgment of 30 Sept. 2004, 458, para. 43.
46
  The disappearance case of Blake v. Guatemala reinforced the links between Convention Article
8(1), Article 25 and Article 1(1). The Court held that the three provisions taken together ensure, for
each person, that those responsible for violations of human rights will be judged and that the victims
can obtain a remedy for damage suffered: Inter-American Court of Human Rights, Blake v. Guatemala
(Merits), judgment of 24 Jan. 1998, (2000) Series C No. 36; (Reparations) (2000) Series C No. 48. The
right to a remedy was called one of the basic pillars not only of the American Convention, but of the
rule of law and a democratic society: ibid, para. 63. See also Castillo Paez v. Peru (1997) Series C No. 34,
paras. 82, 83; Suárez Rosero v. Ecuador (1998) Series C No. 35, para. 65; Paniagua Morales and others
v. Guatemala (1998) Series C No. 37; Loayza Tamayo v. Peru (Reparations) (2000) Series C No. 42, para.
169; Castillo Paez v. Peru (Reparations) (2000) Series C No. 43, para. 106.
47
  See: Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations (Arts. 27(2),
25(1) and 7(6) American Convention on Human Rights), Advisory Opinion, (1987) Series C No. 8;
Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8) American Convention on Human
Rights). Advisory Opinion, (1987) Series C No. 9. On the drafting history of the American Convention
provisions, see: Laurence Burgogue-Larsen and Amaya Ubeda de Torres, Inter-American Court of Human
Rights: Cases and Commentary (Oxford, 2011), 678–679.
48
  States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11 (31 Aug. 2001).
49
  Comm. No. 64-/1995, Lindon v. Australia, para. 19: ‘The requirement of competence, independ-
ence and impartiality of a tribunal in the sense of article 14, para. 1, is an absolute right that is not subject
to any exception’. Comm. No. 262/1987, Gonzalez del Rio v. Peru, para. 5.2, para. 25: The notion of fair
trial includes the guarantee of a fair and public hearing.
96 The Institutional Framework

4.2.1 Access to justice
Access to justice is the first part of providing domestic remedies. It must be assured
within the domestic legal system as the procedural guarantee necessary to enforce other
rights.50 Although no single remedy may be entirely satisfactory, ‘the aggregate of rem-
edies provided for under domestic law’ may suffice.51 In fact, it is not considered duplica-
tive to seek redress against the state and proceed with civil actions for damages against
the responsible persons. Although in some instances a state has argued that this means
double compensation, tribunals insist that the liability of the state for its own violation
is different from the liability of other persons, especially in cases where the original viola-
tion was condoned by the state in not conducting a proper investigation.52
In a study on access to justice, the IACHR emphasized that states not only have a
negative obligation not to obstruct access to remedies but also a positive duty to organize
their institutional apparatus so that all individuals can access those remedies.53 To that
end, states are required to remove any regulatory, social, or economic obstacles that pre-
vent or hinder the possibility of access to justice. The IACHR has identified several core
issues that it regards as priorities for the judicial protection of rights. They are: 1) remov-
ing economic obstacles that hamper access to the courts; 2) ensuring due process of law
in administrative and judicial proceedings; and 3) providing effective judicial protection
of individual and collective rights.
Access to justice means ensuring the possibility for an injured individual or group
to bring a claim before an appropriate tribunal and have it adjudicated, increasingly
this means by judicial proceedings. It thus means the right to seek a remedy before a
tribunal which is constituted by law and which is independent and impartial in the
application of the law.54 In the context of gross and systematic violations, however, it
is not uncommon for mass claims to be processed through administrative programs or
special tribunals, as discussed in section 4.3.
The European Court first interpreted the right to a fair hearing to include the right
of access to justice in the case of Golder v. United Kingdom,55 where the government’s
refusal to allow a prisoner to communicate with a lawyer in order to institute proceed-
ings was found to violate an implicit Article 6 right of access to justice. According to the
Court, there should be no hindrance in law or fact to the ability to institute proceedings,
unless the restriction is justified by and proportionate to a legitimate aim.56 In general, an

50
  See Francesco Francioni (ed.), Access to Justice as a Human Right (2007); Martin Scheinin, ‘The
Human Rights Committee’s Pronouncements on the Right to an Effective Remedy—An Illustration of
the Legal Nature of the Committee’s Work under the Optional Protocol’, in Nitsuke Ando (ed.), Toward
Implementing Universal Human Rights (Leiden, 2004), 101.
51
 Ibid.
52
  Inter-American Court of Human Rights, Ximenes-Lopez v.  Brazil, (2006) Series C No. 149,
para. 232.
53
 IACHR, Access to Justice as a Guarantee of Economic, Social, and Cultural Rights. A  Review of
the Standards Adopted by the Inter-American System of Human Rights, OEA/Ser.L/V/II.129, Doc. 4,
7 September 2007.
54
  E.g., ICCPR, art. 2; ECHR art. 6(1); IACHR art. 25, and African Charter art. 7.1.
55
  European Court of Human Rights, Golder v. United Kingdom (1975) Series A No. 18, [1975]
ECHR 1, (1979) 1 EHRR 524, IHRL 9 (ECHR 1975).
56
  European Court of Human Rights, F.E. v. France, judgment of 30 October 1998; Fayed v. United
Kingdom, (1994) Series A No. 294–B, 49–50, para. 65; Bellet v. France, (1995) Series A No. 333–B, 41,
para. 31; and Levages Prestations Services v. France, 1996–V Reports, 1543, para. 40. On the permissibil-
ity of immunities to limit litigation see European Court of Human Rights, Fayed v. United Kingdom
(1994) Series A No. 294B, where the principle of proportionality was applied to uphold an immunity
conferred on those investigating the affairs of a company.
 Domestic Remedies 97

individual applicant ‘must have a bona fide opportunity to have his case tested on its merits
and, if appropriate, to obtain redress’.57
States necessarily regulate access to justice to limit stale claims and exclude abusive filings.
Human rights tribunals agree that states may impose reasonable restrictions, including stat-
utes of limitations or a requirement of legal representation, to ensure the proper administra-
tion of justice.58 The right of access thus may be subject to limitations; however, limitations
must not restrict exercise of the right in such a way or to such an extent that the very essence
of the right is impaired.59 The European Court of Human Rights has in effect required the
tolling of statutes of limitations when the applicant proved scientifically that he or she could
not have known of the particular injury due to its latency, finding that the Swiss absolute
limit of ten years to file a damage claim due to exposure to asbestos violated the European
Convention.60 The Inter-American Court has indicated that statutes of limitations that elim-
inate the possibility of criminal prosecutions are inadmissible under international law for
certain offences such as forced disappearance of persons, extrajudicial execution, and torture,
‘the severity of which makes their punishment necessary in order to avoid their repetition’.61
Not all limitations on a domestic court’s jurisdiction are considered acceptable, even
if they involve application of long-standing legal doctrine. In the 1997 case of Gustavo
Carranza,62 the IACHR held that Argentina violated Article 25 of the Convention when
its courts applied the ‘political question’ doctrine and refused to decide a case on the merits.
The IACHR accepted the political question doctrine in theory,63 finding it grounded in the
democratic system of separation of powers, by virtue of which the judiciary abstains from
reviewing acts that presuppose a political or discretionary judgment reserved exclusively
for another branch of government. The IACHR decided that it therefore would not pass
judgment on the wisdom or efficacy of the doctrine ‘unless its application results in a viola-
tion of any of the rights protected by the American Convention’.64 In this case, the IACHR
noted that judges had ‘frequently redefined the scope of political questions’65 and the courts
of Argentina had used the political question doctrine to justify the actions of a de facto
military government that took power by unconstitutional means. The last factor seemed
determinative in finding a violation.66 The Commission interpreted Article 25 to encom-
pass the right to ‘effective’ judicial protection, not mere access to a judicial body. According
to the Commission, this means that the tribunal ‘must reach a reasoned conclusion on the
claim’s merits, establishing the appropriateness or inappropriateness of the legal claim that,
precisely, gives rise to the judicial recourse’.67

57
  European Court of Human Rights, Leander v. Sweden (1987) Series A No. 116.
58
  Cf. European Court of Human Rights, Stubbings v. United Kingdom, (1997) 23 EHRR 213,
Hennings v. Germany, (1992) Series A No. 251A.
59
  European Court of Human Rights, Ashingdane v. United Kingdom (1985) Series A No. 93, 24–25,
para. 57.
60
  Howald Moor and Others v. Switzerland, (2014) (available only in French).
61
  Inter-American Court of Human Rights, Suarez Peralta v. Ecuador, (2013) Series C No. 261 citing
Barrios Altos v. Peru (2001), Series C No. 75, para. 41, and Velez Restrepo and family members v. Colombia,
(2012) Series C No. 248, para. 283.
62
  Report No. 30/97, Case, 10.087, Gustavo Carranza v. Argentina, Annual Report of the Inter-American
Commission on Human Rights 1997, OEA/Ser.L/V/II.98, Doc. 7 rev. (1998), 254. In the matter, a judge
removed from office sought a judicial remedy and was denied access to the courts on the basis that his
dismissal constituted a political question.
63
  The government of Argentina relied on the United States Supreme Court decision in Baker v. Carr,
369 U.S. 186 (1962).
64
  Carranza v. Argentina, supra n. 62, 261. 65
 Ibid. 66
 Ibid, 263.
67
  Ibid, 266–7. The Commission cites Report 5/96 wherein it held that ‘the right to a recourse set
forth in Article 25, interpreted in conjunction with the obligation in Article 1(1) and the provisions of
98 The Institutional Framework

Access to justice may also be impeded by practical factors, including poverty.

International tribunals hold that where representation by a lawyer is necessary in law or
in fact, the state may be obliged to provide legal aid for indigent litigants to ensure their
effective access to justice.68 No cases thus far have discussed the adequacy of state-provided
representation nor reviewed state standards for determining indigence, but most human
rights tribunals have held that if the failure to provide legal aid interferes with the right
to pursue legal remedies or is discriminatory69 it is itself a human rights violation. In an
advisory opinion,70 the Inter-American Court went further and advised states on the
factors to use in determining whether free legal counsel is necessary: the resources avail-
able to the person concerned, the complexity of the issues involved, and the significance
of the rights involved. In this framework, the IACHR has held that it is not sufficient to
claim to be indigent and that legal assistance is unavailable; such an assertion must be
substantiated with appropriate evidence.71
Procedural costs, whether in judicial or administrative proceedings, and the location
of tribunals, may also be impediments to access to justice. The Committee on Economic,
Social and Cultural Rights insists that remedies for violations must be affordable for all,
with ‘related administrative and legal costs . . . based on the principle of equity’.72 Similarly,
the Committee on Migrant Workers expressed concern that certain migrant workers
would be unable to seek redress through means free of legal fees,73 while the Committee
on the Rights of the Child has affirmed that states must eliminate economic barriers to
access to justice,74 and the United Nations Special Rapporteur on extreme poverty and
human rights has identified economic accessibility as one of the principal barriers limit-
ing access to justice,75 while the Special Rapporteur on the human right to safe drinking
water and sanitation has emphasized that remedies must be financially accessible to the
poor.76 To ensure economic accessibility, formal fees should be reduced or eliminated and
attention should be paid to other costs that might limit access to justice.77
The Inter-American Court has held in contentious cases that the imposition of pro-
hibitive costs, such as filing fees, violates Article 8 of the American Convention.78 The

Article 8(1), must be understood as the right of every individual to go to a tribunal when any of his rights
have been violated (whether a right protected by the Convention, the constitution, or the domestic laws
of the state concerned), to obtain a judicial investigation conducted by a competent, impartial, and
independent tribunal that will establish whether or not a violation has taken place and will set, when
appropriate, adequate compensation’.
68
  European Court of Human Rights, Airey v. Ireland, judgment of 9 October 1979 Series A No. 32.
See also CCPR, General Comment No. 31.
69
  The Inter-American Court has found that ‘ . . . [i]‌f a person who is seeking the protection of the
law in order to assert rights which the American Convention guarantees finds that his economic status
(in this case, his indigence) prevents him from so doing because he cannot afford . . . the necessary legal
counsel . . . that person is being discriminated against by reason of his economic status and, hence, is
not receiving equal protection before the law’. Inter-American Court of Human Rights, Exhaustion of
Remedies (1990) Series A No. 11.
70
  Juridical Condition and Rights of the Undocumented Migrants (Advisory Opinion) (2003) Series
A No. 18.
71
  IACHR, Report No. 81/05, Petition 11.862, Inadmissibility, Andrew Harte and Family v. Canada,
24 October 2005.
72
  CESCR, General Comment No. 17 (2005), para. 18 (b) (ii).
73
  CMW/C/SYR/CO/1, 2008, para. 25.
74
  CRC, General Comment No. 16 (2013), para. 68. 75
  A/67/278, paras. 51–56.
76
  A/HRC/15/31/Add.1, para. 54.
77
  A/HRC/23/35, paras. 79–80; A/67/278, para. 96. See also Airey v. Ireland, supra n. 68, paras. 26–28.
78
  Inter-American Court of Human Rights, Case of Cantos (2002) Series C No. 97. The claim that
Mr Cantos filed with Argentina’s Supreme Court totalled 2,780,015,303.44 pesos (the same amount in
United States dollars). Under Argentine law, the fee at time of filing was three percent (3%) of the total
 Domestic Remedies 99

Court is clear that ‘[a]‌ny domestic law or measure that imposes costs or in any other way
obstructs individuals’ access to the courts and that is not warranted by what is reasonably
needed for the administration of justice must be regarded as contrary to Article 8(1) of
the Convention’.79 The Court considers that although the right of access to a court is not
an absolute and may be subject to certain limitations set by the state, the means used
must be proportional to the aim sought.80 In the Yean and Bosico case,81 the Court again
expressly referred to the need to set limits on costs in proceedings in order to prevent
violation of fundamental human rights.
Physical access to remedies is also required. The Committee on Economic, Social and
Cultural Rights82 and United Nations experts, including the Special Rapporteur on the
human right to safe drinking water and sanitation83 the Special Rapporteur on extreme
poverty and human rights,84 and the Human Rights Council Advisory Committee,85
have all alluded to the requirement of physical access to justice. Physical accessibility
is of particular concern in the case of persons with disabilities.86 It is also important for
people living in remote areas, as the distances involved in travelling to the locations of
established justice mechanisms can seriously impede their effective access.87
Finally, legal access is required. In Canea Catholic Church v. Greece,88 a law foreclosed
the ability of the church to bring proceedings in Greek courts, because of formalities
required in order for it to acquire legal personality. The European Court found the law
to be an impermissible interference with the right of access to justice.89
Access to justice is required for a broad range of public rights that includes social
security benefits and other welfare assistance,90 even when an administrative body deter-
mines the rights conferred.91 International tribunals have also recognized the need for
particular protections for specific marginalized groups seeking access to justice,92 includ-
ing through bringing collective administrative or judicial claims.93

amount of relief being claimed. The filing fee is the sum of money that every person filing suit in court
must pay to have access to the courts. Under Argentine law, the filing fee is a flat percentage, and there
is no maximum filing fee. In the case of Cantos that three percent represented 83,400,459.10 pesos or
US dollars (ibid, para. 53).
79
 Ibid, para. 50.   80  Ibid, para. 54.
81
  Inter-American Court of Human Rights, Case of the Girls Yean and Bosico (2005) Series C No. 130.
82
  CESCR, General Comment No. 17 (2005), para. 18 (b) (i) (concerning rights of the author).
83
  A/HRC/15/31/Add.1, para. 54.
84
  A/HRC/21/39, paras. 67–68; A/67/278, para. 11. 85
  A/HRC/22/72, para. 51.
86
  CESCR, General Comment No. 17 (2005), para. 18 (b) (i); A/67/278, para. 11.
87
  A/67/278, paras. 36–40. 88
  16 Dec. 1997, 1997 ECtHR 100.
89
  See also European Court of Human Rights, Former King of Greece and others v. Greece [GC] (2001)
33 EHRR 516.
90
  See: European Court of Human Rights, Engel and others (1976) Series A No. 22, para. 82; Deweer,
(1980) Series A No. 35, para. 49; Campbell and Fell (1984) Series A No. 80 para. 68; Salesi v. Italy, Series
A No. 257-E, 26 February 1993; Schuler-Zgraggen v. Switzerland (1993) Series A No. 263; Inter-American
Court of Human Rights, Baena Ricardo et al. v. Panama (2001) Series C No. 72, para. 129.
91
  See, e.g., European Court of Human Rights, X v. Austria, App. No. 5362/72, 2 CD 145 (1972);
European Court of Human Rights, Heinrich v. France,(1994) 269-A, para. 56.
92
 See: Access to Justice for Women Victims Of Sexual Violence In Mesoamerica, OEA/Ser.L/V/II., Doc.
63 (2011); Access to Justice for Women Victims of Violence in the Americas, OEA/Ser.L/V//II, Doc. 68
(2007); The Situation of People of African Descent in the Americas, ch. III(b), OEA/Ser.L/V/II. Doc. 62
(2011).
93
  Committee on Economic, Social and Cultural Rights, CESCR, General Comment No. 4 (1991),
para. 17 (right to housing); General Comment No. 9 (1998), para. 2; General Comment No. 19 (2008),
para. 77 (right to social security); General Comment No. 18 (2005), para. 48 (right to work); General
Comment No. 15 (2002), para. 55 (right to water); General Comment No. 14 (2000), para. 59 (right
to health); General Comment No. 12 (1999) (right to adequate food), para. 32. See also A/HRC/7/21,
para. 30.
100 The Institutional Framework

The right of access to justice may, in principle, be satisfied by proceedings either before
a judicial body or an administrative one, subject to judicial appeal when appropriate.94
Administrative remedies can be an adequate venue of redress if they are accessible,95
affordable,96 timely or prompt,97 effective,98 legitimate,99 predictable,100 compatible with
rights,101 and transparent.102 They must also be equitable,103 requiring that they provide
means to include the ‘poorest and most disadvantaged and marginalized’.104
Although treaty bodies have stated that either form of remedy may be sufficient, they
emphasize that whenever a right ‘cannot be made fully effective without some role for
the judiciary, judicial remedies are necessary’, and that an effective judicial remedy is
considered an appropriate, and perhaps even necessary, means of realizing economic,
social and cultural rights, since other means ‘could be rendered ineffective if they are not
reinforced or complemented by judicial remedies’.105 Moreover, even when an admin-
istrative remedy is permissible, it is typically essential that there be a judicial appeal
available for review of the administrative resolution of the issue.106 To justify the failure
to provide any judicial recourse, a state would need to show that such recourse was
neither an appropriate means for realizing the rights in question nor necessary for that
purpose.107

4.2.2 An independent, impartial, and competent tribunal

The principle of judicial independence, recognized as ‘international custom and a gen-
eral principle of law’108 is also guaranteed in human rights instruments.109 This guarantee
extends to any organ or institution that performs judicial functions110 and is considered
a precondition for the observance of the standards of due process as a human right.111

94
  CESCR, General Comment No. 9 (1998), para. 9; General Comment No. 3 (1990), para. 5;
General Comment No. 16 (2005), para. 38; and General Comment No. 17 (2005), para. 18 (a);
E/C.12/NPL/CO/2 (2007), para. 32. See also Human Rights Council, Report of the Secretary-General
on the Question of the Realization in All Countries of Economic, Social and Cultural Rights, UN Doc. A/
HRC/25/31, 19 Dec. 2013.
95
  CESCR, General Comment No. 9 (1998), para. 9; General Comment No. 16 (2005), para. 21;
A/HRC/7/11, para. 51 (d).
96
 CESCR, General Comment No. 9 (1998), para. 9; A/HRC/15/31/Add.1, para. 54; A/
HRC/21/42, para. 77.
97
  A/HRC/15/31/Add.1, para. 54; CRC, General Comment No. 16 (2013), para. 30; CMW/C/
GTM/CO/1, 2011, para. 21.
98
  CESCR, General Comment No. 20 (2009), para. 40; General Comment No. 16 (2005), para. 38;
E/C.12/NPL/CO/2, 2007, para. 32.
99
  CESCR, General Comment No. 9 (1998), para. 9; A/HRC/15/31 para. 58.
100
  A/HRC/15/31, para. 58. 101
 Ibid.
102
  A/HRC/7/11, para. 51; A/HRC/15/31 para. 58. 103
  A/67/278, para. 8.
104
  CESCR, General Comment No. 16 (2005), para. 21.
105
  CESCR, General Comment No. 9 (1998), paras. 3 and 9. 106
 Ibid.
107
  Ibid, para. 3; CESCR, General Comment No. 3 (1990), para. 5.
108
  United Nations. General Assembly. Human Rights Council. Report of the Special Rapporteur on
the Independence of Judges and Lawyers, Leandro Despouy, A/HRC/11/41, 24 March 2009, para. 14.
109
  See:  UDHR, Article 10; ICCPR, Article 14; American Convention, Article 8(1); European
Convention, Article 6.1; and the African Charter HPR Article 7.1; Migrant Workers Convention,
Article 18.1; Enforced Disappearance Convention, Article 11.3; the Additional Protocol to the Geneva
Conventions (Article 75.4) and the Additional Protocol relating to the Protection of Victims of
Non-International Armed Conflicts (Protocol II) (Article 6.2).
110
  Inter-American Court of Human Rights, Case of the Constitutional Court v. Peru (2001) Series C
No. 71, para. 71.
111
  Inter-American Court of Human Rights, Radilla Pacheco v. Mexico,(2009) Series C No. 209, para.
273; see also Inter-American Court of Human Rights, Ivcher Bronstein v. Peru, (2001) Series C No. 74,
para. 112; and 19 Tradesmen v. Colombia, (2004) Series C No. 109, para. 167.
 Domestic Remedies 101

The African Commission has explained the need for independence of the judiciary and
the guarantees of a fair trial, calling attacks on the judiciary ‘especially invidious, because
while it is a violation of human rights in itself, it permits other violations of rights to
go unredressed’.112 The United Nations Human Rights Committee has observed that
‘a situation where the functions and competences of the judiciary and the executive are
not clearly distinguishable or where the latter is able to control or direct the former is
incompatible with the notion of an independent tribunal’.113
Human rights tribunals have pronounced on the essential requirements of an adjudi-
cating body, whether it is administrative or judicial. Within the United Nations system,
in 1985 the General Assembly established the United Nations Basic Principles on the
Independence of the Judiciary, which set out the minimum guarantees that must be
observed to ensure independence.114 These principles have been accepted as a UN instru-
ment for measuring the independence of the judiciary in a given member state. Other
global and regional instruments have been adopted since then to protect the independ-
ence of the judicial branch of government.115
Several of the UN special procedures have addressed the issue of judicial inde-
pendence. The Special Rapporteur on the right to education has noted that the very
purpose of adjudicating alleged violations of that right is ‘to have a credible, independ-
ent body monitoring the legal compliance of State actors in the field of education’.116
Independence is guaranteed not only by formal legal or constitutional requirements
but must also ensure the de facto independence of officials, judges and magistrates.117
Various special rapporteurs have stated that independence requires proper financing, as
well as adequate human resources and institutional structures.118 Similarly, the European
Court tests whether a tribunal is independent by examining, inter alia, the manner of
appointment of its members and their term of office, the existence of safeguards against
outside pressures and whether the body presents an appearance of independence.119
Two tests apply to the condition of ‘impartiality’: the first seeks to determine the
personal conviction of a particular judge in a given case and the second tries to ascertain
whether the judge offered guarantees sufficient to exclude any legitimate doubt in this
respect. When applied to a body sitting as a bench, it means determining whether, quite
apart from the personal conduct of any of the members of that body, there are ascertain-
able facts which may raise doubts as to its impartiality. Appearances may be important in

112
  African Commission on Human Rights, Communication No. 129/94, Civil Liberties Organization
v. Nigeria, AGH/207(XXXII) Annex VIII17, 19. The Commission deemed the ousting of jurisdiction
of the Nigerian courts ‘an attack of incalculable proportions on Article 7’: ibid. The Commission also
referred to Art. 26, stating that it ‘clearly envisions the protection of the courts which have traditionally
been the bastion of protection of the individual’s rights against the abuses of State power’: ibid.
113
 United Nations Human Rights Committee, General Comment No. 32, CCPR/C/GC/32
(2007), para. 19.
114
  The United Nations Basic Principles on the Independence of the Judiciary were adopted by the
Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at
Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of
29 November 1985 and 40/146 of 13 December 1985.
115
  E.g.: The United Nations Economic and Social Council approved the Bangalore Principles (2002)
which mention the importance of a competent, independent and impartial judiciary to the protection
of human rights. At the regional level, the standards for guaranteeing judicial independence are set out
in the Commonwealth (Latimer House) Principles on the three branches of government; the European
Charter on the Statute for Judges (1998) and the Beijing Statement of Principles on the Independence
of the Judiciary in the LAWASIA Region (1995).
116
  A/HRC/23/35 para. 82 (e). 117
  E/C.12/1/Add.20, 1997, para. 15.
118
  A/67/278, paras. 41–42; A/HRC/15/31/Add.1, para. 53.
119
  See European Court of Human Rights, Findlay v. United Kingdom (1997) Reports 1997-I, 281;
Cirklar v. Turkey, judgment of 28 Oct. 1998.
102 The Institutional Framework

deciding whether there is a legitimate reason to fear that a particular body lacks impar-
tiality, and the standpoint of those claiming that it is not impartial is important. It is
not, however, decisive; what is decisive is whether the fear can be held to be objectively
justified.120
The Inter-American Court has said that judges must have certain guarantees for the
sake of those on trial or parties to litigation. These guarantees, including ‘reinforced
guarantees’ of tenure,121 are deemed ‘essential for the exercise of the judicial function’122
and a corollary of the right of access to justice that every person enjoys. This emphasis
has made human rights institutions, especially in the Inter-American system, sceptical
of military or special tribunals.123 One judgment suggested that for any crime in which
there is evidence of the involvement of a military member, the jurisdiction of military
tribunals may be improper,124 because the impartiality of the military courts will be in
doubt.125 The Court indicated, however, that the fact that a case was heard in military
courts ‘does not per se signify that the human rights guaranteed the accused party by the
Convention are being violated’,126 but this finding has been strictly limited in subse-
quent judgments of the Inter-American Court.127
Finally, the Committee on Economic, Social and Cultural Rights has emphasized
that, because the realization of rights requires good governance, the courts and admin-
istrative bodies responsible for providing remedies for rights violations must be both
transparent and accountable.128 In this regard, both United Nations treaty bodies and
experts have emphasized the state duty to combat corruption among officials respond-
ing to economic, social and cultural rights violations.129 The Committee on Migrant
Workers has underscored that states must take a proactive role in eliminating corrup-
tion, including by investigating and sanctioning those involved.130

4.2.3  Timely and expeditious proceedings

The speed with which a remedy can be obtained may be relevant in assessing its
effectiveness.131 A hearing within a reasonable time is required by Art. 6(1) ECHR and
Art. 8(1) of the ACHR, as well as ICCPR Art. 14(3)(c). The European Court of Human

120
  See European Court of Human Rights, Gautrin and others v. France (1998) EHRR 1998–III,
para. 58, (1999) EHRR 196.
121
  Inter-American Court of Human Rights, Reverón Trujillo v. Venezuela (2009) Series C No. 197,
para. 67.
122
  Ibid; Inter-American Court of Human Rights, Chocrón Chocrón v. Venezuela, (2011) Series C No.
227, para. 97.
123
  Inter-American Court of Human Rights, Genie Lacayo Case (1998) Series C No. 30.
124
  Ibid, para. 15.
125
  Impartiality in these cases was doubted because of Art. 52 of Decree 591 which required military
courts to assess evidence in accordance with the ‘Sandinista juridical conscience’: ibid, para. 38(c).
126
  Ibid, para. 84.
127
  Inter-American Court of Human Rights, 19 Tradesmen v. Colombia (2004) Series C No. 109,
para. 165. Current doctrine holds that a state’s military courts may prosecute military personnel for
crimes relating to the functions that the law assigns to military forces and, during international armed
conflicts, may try privileged and unprivileged combatants, provided the minimum requirements of due
process are guaranteed. Military courts may not prosecute human rights violations or other crimes, which
must be tried by civilian tribunals. The state is also prohibited from using secret or faceless judicial pro-
cedures. See IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116m Doc. 5 rev. 1 corr.
22 October 2002.
128
  CESCR, General Comment No. 15 (2002), para. 49.
129
  E/C.12/KHM/CO/1, 2009, para. 14; CMW/C/MEX/CO/2, 2011, para. 27.
130
  CMW/C/MEX/CO/2, 2011, para. 28.
131
  European Court of Human Rights, Selmouni v. France (1997) Series A No. 88B, 55.
 Domestic Remedies 103

Rights has interpreted Art. 6(1) to require not only a fair trial but also a judgment within
a reasonable time. What constitutes a reasonable time depends upon the circumstances
and the complexity of the case, taking into account the conduct of all parties to the case.
At the ICCPR, the burden of proof for justifying any delay and showing that a case was
particularly complex rests with the state party.
Unjustified delay in domestic remedies thus not only provides an exception to the
exhaustion requirement but may also result in a finding that the right to a remedy has
been violated.132 Delay is usually measured by including the time involved in admin-
istrative proceedings prior to judicial review and enforcement measures required after
such review.
The requirement of prompt remedies extends to economic, social and cultural rights133
whose protection is often linked to the livelihood of rights holders.134 United Nations
treaty bodies and experts have made extensive reference to this requirement, stating that
remedial proceedings must be timely, prompt and expeditious.135 Although there is no
legal stipulation as to the appropriate length of any given administrative proceeding or
judicial process, the Committee on Economic, Social and Cultural Rights made clear
that proceedings should not result in ‘unwarranted delays’ in the preliminary stages of
proceedings or in arriving at a final decision.136 The reasonableness and adequacy of the
length of the decision must take into account the specific nature of the controversy and
the specific needs of claimants, especially of those who are most in need of an expeditious
response, such as children or migrant workers facing deportation.137
The Inter-American Court has emphasized the role of the judge in conducting pro-
ceedings in a timely manner consistent with due process. In Suarez Peralta v. Ecuador, the
Inter-American Court reiterated that ‘[t]‌he right to effective judicial protection requires
judges to guide the proceedings in a way that avoids undue delays and obstructions
resulting in impunity, thus thwarting the due judicial protection of human rights’,138
otherwise, this ‘leads to the violation of the State’s international obligation of prevention
and to protect human rights, and violates the right of the victim and his or her next of
kin to know the truth of what happened, that those responsible are identified and pun-
ished, and to obtain the corresponding reparations’.139 The obligations for proceedings

132
  See Inter-American Court of Human Rights, Juan Humberto Sanchez v. Honduras (2003) Series
C No. 99, para. 67. See also Zambrano Velez et al. v. Ecuador, (2007) 166 Inter-Am.Ct. H.R. (ser. C)
paras. 111 et seq.
133
  CESCR, General Comment No. 17 (2005), para. 18 (c) and General Comment No. 20 (2009),
para. 40 (discrimination); CRC, General Comment No. 16 (2013), para. 30.
134
  CESCR, General Comment No. 9 (1998), para. 9 and General Comment No. 17 (2005),
para. 18 (c); CRC, General Comment No. 16 (2013), para. 31. See also European Court of Human
Rights, applying the guarantee of reasonable length of judicial procedures to economic and social
rights: European Court of Human Rights, Deumeland v. Germany (29 May 1986); Obermeier v. Austria
(1990) Series A No. 179; Vocaturo v. Italy (1991) Series A No. 206-C; Lestini v. Italy (1992) Series A No.
228-E; Ruotolo v. Italy (1992) Series A No. 230-D; X v. France (1992) Series A No. 232; Salesi v. Italy,
(1993) Series A No. 257-E, 26 EHRR 187; Schouten and Meldrum v. the Netherlands (1994) Series A No.
304; Mosca v. Italy, (2000) 43 YB No. 60; Mennitto v. Italy (2000) 2000-X (2002) 34 EHRR 1122.
135
  CESCR, General Comment No. 9 (1998), para. 9; CMW/C/GTM/CO/1, 2011, para. 21;
CRC, General Comment No. 16 (2013), para. 30; A/HRC/15/31/Add.1, para. 54.
136
  CESCR, General Comment No. 17 (2005), para. 52.
137
  CMW/C/GTM/CO/1, 2011, para. 21; CRC, General Comment No. 16 (2013), para. 30.
138
  Inter-American Court of Human Rights, Suarez Peralta v. Ecuador (2013) Series C No. 261,
para. 93, citing Bulacio v. Argentina (Merits, reparations and costs) (2003) Series C No. 100, para.
115, and Case of Myrna Mack Chang v.  Guatemala (Merits, reparations and costs) (2003) Series
C No. 101, para. 210.
139
  Case of Myrna Mack Chang supra n. 138, para. 211, and Case of the Las Dos Erres Massacre (2009)
Series C No. 211, para. 120 and 255.
104 The Institutional Framework

to respect due process guarantees and to be completed within a reasonable time are even
more important in those cases where there is evident harm to the person’s integrity,
even when the harm is not deliberate, such as when there is medical malpractice.140 In
such instances, the political, administrative and, especially, the judicial authorities must
ensure and implement reasonable and timely promptness in deciding the case.
The requirement of proceedings within a reasonable time applies to administrative as
well as judicial proceedings. The Inter-American Court has determined that a prolonged
delay in an administrative proceeding constitutes, in principle, a violation of Article 8
of the Convention and that, in order to refute such a conclusion, it is up to the state to
show that the delay in the proceeding was due to the complexity of the case or to the
conduct of the parties.
The Inter-American Court determines delay by examining the complexity of the
matter, judicial activity of the interested party, behaviour of the judicial authorities and
the rights at issue. In Valle Jaramillo v. Colombia,141 the court also held that ‘the adverse
effect of the duration of the proceedings on the judicial situation of the person involved
in it must be taken into account’. The IACHR has added that the length of a trial should
be counted from the start of the administrative proceedings, not when the case reaches
the judicial stage. At the end of the proceedings, enforcement of the judgment is con-
sidered an integral part of the proceeding and, consequently, it should be taken into
account in examining if the length of a proceeding is reasonable.
Although all treaties require timely proceedings for the determination of rights and
remedies, some commentators argue that ‘delayed justice’ has virtues in the context
of gross and systematic violations, or ‘transitional justice’.142 Delay is said to provide a
society with time to improve its justice system, restock its institutions, and enshrine the
necessary legal rights and procedures. Secondly, delayed justice allows the government
to spend time and energy on restoring order, reducing crime, and otherwise dealing
with the current situation, while preserving legal recourse dealing with the past for a
later opportunity. Thirdly, delays provide society with an opportunity to utilize scarce
economic resources in meeting social needs. As even the proponents note, however,
delay risks diminishing the political will to provide redress and undertake the difficult
investigations and prosecutions that are required by law. At the least, delay may raise
significant rule of law issues. Given the importance of societal memory and an agreed
narrative about the past, the more trials or other procedures are delayed, the more dif-
ficult the task becomes.

4.2.4 Fair proceedings
International human rights treaties and jurisprudence have identified certain basic ele-
ments of due process that are required for a fair proceeding. These due process guaran-
tees have full applicability to administrative proceedings that determine obligations and

140
  Suarez Peralta, supra n. 138, para. 101.
141
  Valle Jaramillo v. Colombia, (2008) 192 Inter-Am. Ct.H.R. (ser. C), para. 155.
142
  Sang Wook Daniel Han, ‘Transitional Justice:  When Justice Strikes Back—Case Studies Of
Delayed Justice In Argentina And South Korea’ (2008) 30 Houston J. Int’l L. 653. Han argues that
delayed justice allows a holistic view of justice by allowing reform and the strengthening of civil society
and governance before bringing legal justice. It thus provides a flexible alternative for a country in
transition.
 Domestic Remedies 105

rights.143 In Baena Ricardo et al. case,144 the Inter-American Court noted the following
with regard to the scope of Article 8 of the American Convention:
Although Article 8 of the American Convention is entitled ‘Right to a Fair Trial’, its application
is not limited to judicial remedies in a strict sense, ‘but [to] all the requirements that must be
observed in the procedural stages, in order for all persons to be able to defend their rights ade-
quately vis-à-vis any type of State action that could affect them. That is to say that the due process
of law must be respected in any act or omission on the part of the State bodies in a proceeding,
whether of a punitive administrative, or of a judicial nature’145 . . . that concerns the determination
of rights and obligations of a civil, labor, fiscal, or any other nature.146
The right to a hearing includes the right to a reasonable time in which to prepare and
formalize arguments, as well as to marshal the corresponding evidence. Prior notification
of charges in any punitive proceeding is also a core component of the guarantee, as is
judicial review of administrative decisions.147 In the judicial review process, there should
be at least a basic supervision of the lawfulness and reasonableness of administrative
decisions, in order to ascertain that they are compatible with human rights guarantees.148
Equality of arms is a key element of fair proceedings. United Nations experts have sig-
nalled the importance of not presuming that conditions of equality exist between the par-
ties to a dispute, when practice and experience have shown otherwise. The Committee on
Economic, Social and Cultural Rights has stressed the need to balance inequalities, includ-
ing by shifting the burden of proof in proceedings. The Committee has stated, in that
regard, that ‘where the facts and events at issue lie wholly, or in part, within the exclusive
knowledge of the authorities or other respondent, the burden of proof should be regarded
as resting on the authorities, or the other respondent, respectively’.149 The Inter-American
Court also holds that ‘the judicial process must recognize and correct any real disadvan-
tages that those brought before the bar might have, thus observing the principle of equality
before the law and the courts and the corollary principle prohibiting discrimination’.150
The European Court has ruled that ‘[e]‌very party to a case must be afforded a rea-
sonable opportunity to present his or her case under conditions that do not place the
party at a substantial disadvantage vis-à-vis the opponent’.151 The idea of a ‘just balance’
between the parties means, in particular, the right to present the case to a court in equal
conditions.152 The principle of equality of arms also ‘includes the fundamental right that
proceedings should be adversarial’, meaning that, ‘within the context of proceedings
on a civil right to which persons belonging to that circle are a party, those persons must
as a rule be guaranteed free access to the observations of the other participants in these
proceedings and a genuine opportunity to comment on those observations’.153

143
  Inter-American Court of Human Rights, Ivcher Bronstein,(2001) Series C No. 74, paras. 104–105
(deprivation of citizenship). See also Claude Reyes et al. v. Chile, (2006) Series C No. 151, para. 118.
144
  Baena Ricardo et al. v. Panama, supra n. 90. 145
  Ibid, paras. 124, 125.
146
  Ibid, para. 127; Advisory Opinion OC-18/03, para. 125.
147
  Inter-American Court of Human Rights, The Girls Yean and Bosico, (2005) Series C No. 130.
148
 European Court of Human Rights, The Right to Information on Consular Assistance in the
Framework of the Guarantees of the Due Process of Law (Advisory Opinion) (1999) Series A No. 16.
149
  CESCR, General Comment No. 20 (2009), para. 40. See also E/C.12/HUN/CO/3, 2008, para. 8;
E/C.12/1/Add.86, 2003, para. 10.
150
  The Right to Consular Assistance, supra n. 148, paras. 117, 119. See also European Court of Human
Rights, Bönisch v. Austria (1985) Series A No. 92, para. 32.
151
  European Court of Human Rights, Kaufman v. Belgium (1972) 42 CD 145 and Bendenoun
v. France, (1994) Series A No. 284, (1994) 18 EHRR 54 para. 52.
152
  European Court of Human Rights, Foucher v. France (1997) 1997-II 33, para. 34.
153
  European Court of Human Rights, Ruiz Mateos v. Spain (1993) Series A No. 262, 16 EHRR 505,
paras. 15, 61, 63 and 65.
106 The Institutional Framework

Finally, to make administrative and judicial remedial mechanisms effective, the

decision reached at the end of the proceeding must include the reasons on which it is
based.154 The resolution should explain the decision on the merits of the legal claims put
forward in the complaint and indicate the reparations awarded to remedy any breaches
of rights that have been determined.

4.2.5  Redress
The general obligation to secure the rights and freedoms contained in human rights
instruments leaves each state considerable latitude to achieve this result by the means
that it chooses,155 but the right to an effective remedy entails that the substantive rem-
edy provided must be capable of providing adequate reparations for the violation. The
European Court has recognized that a ‘practice’ of violations, something the Court calls
‘an aggravated violation’,156 demonstrates that the right to a remedy does not function,
or the practice would not exist.157 This long-standing doctrine was reiterated in Cyprus
v. Turkey, where the European Court again held that the exhaustion rule is inapplicable
where an administrative practice, namely a repetition of acts incompatible with the
Convention and official tolerance by the State authorities, has been shown to exist and
is of such a nature as to make proceedings futile or ineffective.158
The Committee on Economic, Social and Cultural Rights has clearly stated that
all victims of violations of economic, social and cultural rights should be entitled to
adequate reparation, including restitution, compensation, satisfaction or guarantees
of non-repetition.159 Other treaty bodies have made similar findings, including the
Committee on the Rights of the Child, which has recognized the need for a broad range
of reparations for violations of the rights of the child, and specifically acknowledged
such a right for violations of the right to health.160 The UN Special Rapporteurs on
the right to health,161 on the human right to safe drinking water and sanitation,162 on

154
  E/C.12/PHL/CO/4, 2008, para. 12; E/C.12/KHM/CO/1, 2009, para. 12.
155
 European Court of Human Rights, Swedish Engine Drivers’ Union v.  Sweden (1976) Series
A No. 20.
156
  Such a practice consists of repetition of acts and official tolerance. See Denmark, Norway, Sweden
and the Netherlands v. Greece, Yearbook of the European Convention on Human Rights 1969: The
Greek Case (1972). See Aisling Reidy, Francoise Hampson and Kevin Boyle, ‘Gross Violations of
Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey’ (1997)
15 Neth.QHR 161.
157
  ‘When there is a practice of non-observance of certain Convention provisions the remedies will
of necessity be side-stepped or rendered inadequate . . . Judicial remedies prescribed would be rendered
ineffective by the difficulty of securing probative evidence, and administrative inquiries would either
not be instituted or if they were, would likely be half-hearted and incomplete’: Greek Case, 35 D&R 143,
164–5, supra, in the preceding note.
158
  European Court of Human Rights, Cyprus v. Turkey, para. 99, citing Akdivar and Others v. Turkey
judgment of 16 September 1996, Reports 1996-IV, 1210, §§ 66–67.
159
  CESCR, General Comment No. 19 (2008), para. 77 (right to social security); General Comment
No. 18 (2005), para. 48 (right to work); General Comment No. 15 (2002), para. 55 (right to water);
General Comment No. 14 (2000), para. 59 (right to health); General Comment No. 12 (1999),
para. 32. See also CESCR, General Comment No. 16 (2005), para. 21 (availability and accessibility
of appropriate remedies, such as compensation, reparation, restitution, rehabilitation, guarantees of
non-repetition, declarations, public apologies, educational programmes and prevention programmes);
and General Comment No. 20 (2009), para. 40 (discrimination).
160
  CRC, General Comment No. 5 (2003), para. 24 (considering all rights of the child); General
Comment No. 15 (2013), para. 119 (right to health); and General Comment No. 16 (2013), paras.
30–31 (harm caused by third parties); see also CRC/C/MMR/CO/3-4, 2012, paras. 21–22 and 86 (d).
161
  A/HRC/20/15, para. 58. 162
  A/HRC/12/24, para. 64; A/HRC/15/31, para. 60.
 Domestic Remedies 107

extreme poverty and human rights,163 and on toxic waste164 have also stated that the right
to a remedy requires reparations in appropriate circumstances. For its part, the African
Commission on Human and Peoples’ Rights has found that redress must be available,
effective and sufficient.165

4.2.6 Sanctions, investigation, prosecution, and punishment

Investigation, prosecution and punishment have become key aspects of remedies for
human rights violations that constitute crimes under national or international law.
Human rights conventions generally are silent about the duty to punish violations, but
jurisprudence holds that the obligation to ensure rights encompasses such a duty, at least
with respect to the most serious violations.166
The Human Rights Committee has interpreted Article 2(3) of the International
Covenant on Civil and Political Rights to require an effective investigation and prosecu-
tion to remedy the harm caused to victims of violations of the right to life and personal
integrity. In cases involving arbitrary detentions, forced disappearances,167 torture,168
and extrajudicial executions169 the Human Rights Committee has ruled that an effective
remedy for direct victims and family members must include a criminal investigation
that brings to justice those responsible.170 On a related point, the Committee has stated
that amnesties for acts of torture ‘are generally incompatible with the duty of States to
investigate such acts; to guarantee freedom from such acts within their jurisdiction;
and to ensure that they do not occur in the future’.171 Further, ‘States may not deprive
individuals of the right to an effective remedy, including compensation and such full

163
  A/67/278, para. 8. 164
  A/HRC/7/21, para. 30.
165
  Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan,
Comm. No. 279/03-296/05, (2009) Afr. Comm. HPR, 45th Sess., para. 99.
166
  Two decades ago, Michael Scharf argued that customary international law does not include a
broad-based duty to prosecute, but limits it to international crimes as contained in treaties explicitly
establishing the duty. The obligation to ensure respect for human rights can be met without prosecu-
tion by establishment of a truth commission, purges of wrongdoers from office and limited prosecu-
tions, together with victim compensation and civil redress: Michael Scharf, ‘Swapping Amnesty for
Peace: Was There a Duty to Prosecute International Crimes in Haiti?’ (1996) 31 Tex. Int’l L.J. 1, 40.
Developments in the law since the article appeared suggest a broader duty exists today.
167
  Bautista de Arellana v. Colombia, Comm. No. 563/1993 (1995), finding that disciplinary and
administrative remedies alone are not ‘adequate and effective’ to redress a forced disappearance, suggest-
ing that anything short of criminal prosecution would not comply with the Covenant’s requirements.
168
  The Human Rights Committee has stated that where acts of torture occur, Article 2(3) of the
Covenant places the government ‘under a duty to . . . conduct an inquiry into the circumstances of [the
victim’s] torture, to punish those found guilty of torture and to take steps to ensure that similar viola-
tions do not occur in the future’ Report of the Human Rights Committee, GAOR, 39th Sess., Supp. No.
40, Annex XIII, para. 13, at 188, UN Doc. A/39/40 (1984).
169
 See Baboeram v. Suriname, Comm. Nos. 146/1983 and 148–54/1983, 40 GAOR Supp. (No.
40), Annex X, para. 13.2, UN Doc. A/40/40 (1985) (duty to investigate and bring to justice persons
responsible for executions); Quinteros Almeida v. Uruguay, Comm. No. 107/1981, 38 GOAR Supp.
(No. 40), Annex XXII, UN Doc. A/38/40 (1983) (duty to investigate and bring to justice any persons
responsible for disappearances).
170
  See e.g. Chonwe v. Zambia, Comm. 821/1998, p. 7 (2000) (attempted killing); Vicente et al. v.
Colombia, Comm. 612/1995, p. 10 (1997) (arbitrary detention, torture and forced disappearance);
Atachahua v. Peru, Comm. 540/1993, p. 10 (1996) (disappearance); Bautista v. Colombia, Comm.
563/1993, p. 10 (1995) (disappearances); Rodriguez v. Uruguay, Comm. 322/1998, p. 14 (1994) (arbi-
trary detention and torture); Tshiongo v. Zaire, Comm. 366/1989, p. 7 (1993) (arbitrary detention and
torture).
171
  General Comment 20 (44) (Art. 7), para. 15 in Official Records of the Human Rights Committee
1991–2, CCPR/11/Add.1 (1995), 370.
108 The Institutional Framework

rehabilitation as possible’.172 Similarly, the UN Committee against Torture has held that
Article 13 of the Convention requires a state to conduct an impartial investigation when
allegations of torture are made173 and the Working Group on Enforced or Involuntary
Disappearance has interpreted Article 19 of the UN Declaration, which pertains to the
right to an effective remedy, to require the prosecution and punishment of perpetrators.174
On the regional level, the European and Inter-American Courts both have inter-
preted their Conventions to require investigation, prosecution and punishment of seri-
ous human rights violations.175 The European Court of Human Rights has held that
ECHR Articles 2, 3 and 13 prescribe victims’ rights in the criminal process for viola-
tions of the right to life,176 disappearances,177 and torture.178 Investigation and prosecu-
tions are thus deemed to be remedies the state owes the victims of violent crime.179
The European Court has found violations when there was no criminal investigation
into alleged right to life or personal integrity violations and where the investigation was
deemed inadequate. Both Article 2 and 3 are thus deemed to impose procedural obliga-
tions that require a state to carry out an effective official investigation capable of leading
to the identification and punishment of those responsible, in addition to the payment of
compensation where appropriate.180 Such prosecutions must involve public scrutiny and
‘the next of kin must be involved in the procedure to the extent necessary to safeguard
his or her legitimate interests’.181 These obligations overlap with, but are independent of
the right to a remedy in ECHR Article 13.182 In some instances the Court has found a

172
 Ibid.
173
  M’Barek v. Tunisia, Comm. 60/1996, p. 12, UN Doc. CAT/C/23/D/60/1996 (2000); Blanco
Abad v. Spain, Comm. 59/1996, UN Doc. CAT/C/20/D/59/1996 (1998).
174
  See report E/CN.4/1998/43, 71 (1998).
175
  See Inter-American Court of Human Rights, Velásquez-Rodríguez Case (1988) Series C No. 4,
para. 164.
176
  European Court of Human Rights, Kaya v. Turkey, EHRR 1998-I 297, (1998) 28 EHRR 1;
Gulec v. Turkey, Reports 1998-IV, p. 1698, (1999) 28 EHRR 121; Ergi v. Turkey (1998) CD 726; Yasa
v. Turkey, Reports 1998-VI, p. 2411, (1999) 28 EHRR 408; Ogur v. Turkey (2001) 31 EHRR 912;
Tanrikulu v. Turkey (2000) 30 EHRR 950; Kilic v. Turkey (2001) 33 EHRR 58; Salman v. Turkey (2002)
34 EHRR 17; Akkoc v. Turkey (2002) 34 EHRR 382; Gul v. Turkey (2002) 34 EHRR 28.
177
  Kurt v. Turkey, supra n. 24; Cakici v. Turkey (2001) 31 EHRR 5; Timurtas v. Turkey (2001) 33
EHRR 6; Tas v. Turkey (2001) 33 EHRR 15.
178
  Aksoy v. Turkey, supra n. 25; Aydin v. Turkey, (1998) 25 EHRR 251, Reports 1996-VI, p. 1866;
Tekin v. Turkey (2001) 31 EHRR 95; Ilhan v. Turkey (2002) 34 EHRR 36.
179
  Criminal prosecutions are not always required; some cases have held that it is sufficient if civil
remedies are available against officials. See Jordan v. U.K. (2001) 31 EHRR 6; Kelly and others v. UK,
judgment of 4 May 2001. Other cases have called for sanctions appropriate for the level of misconduct.
See European Court of Human Rights, Oneryildiz v. Turkey, [GC] (2004), 41 EHRR 20, paras. 92–93
(‘if the infringement of the right to life or to physical integrity is not caused intentionally, the positive
obligation to set up an “effective judicial system” does not necessarily require criminal proceedings to
be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were
available to the victims’, but ‘where it is established that the negligence attributable to State officials or
bodies on that account goes beyond an error of judgment or carelessness . . . the fact that those responsi-
ble for endangering life have not been charged with a criminal offence or prosecuted may amount to a
violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their
own initiative’).
180
  European Court of Human Rights, McCann and others v. United Kingdom (1995) Series A No.
324; Kaya, supra n. 176; Yasa, supra n. 176; Tanrikulu, supra n. 176; Cakici, supra n. 177; Kilic, supra
n. 176; Timurtas, supra n. 177; Salman, supra n. 176; Akkoc, supra n. 176; Tas, supra n. 177.; Gul,
supra n. 176; Akdeniz and others v. Turkey, judgment of 31 May 2001 [2001] EHRR 353; Aksoy, supra
n. 25; Aydin, supra n. 178; Mentes v. Turkey (Art. 50) (1998) Reports 1998-IV, p. 16886; Selçuk and
Asker v. Turkey, supra n. 28; Assenov v. Bulgaria, Reports 1998-VII, p. 3264; Egmez v. Cyprus (2002) 34
EHRR 29.
181
 See Jordan, supra n. 179; Kelly and Shanaghan, supra n. 179. ; McKerr v. U.K. (2002) 34 EHRR 20.
182
  Mentes v. Turkey, supra n. 180.
 Domestic Remedies 109

procedural violation of the substantive right (e.g. right to life)183 after holding that there
is insufficient evidence to conclude that government intentionally killed the deceased. In
Kaya v. Turkey, the Court noted that protection of the right to life would be ineffective
in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal
force by state authorities:
The obligation to protect the right to life under Article 2, read in conjunction with the State’s
general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the
rights and freedoms in [the] Convention’, requires by implication that there should be some form
of effective official investigation when individuals have been killed as a result of the use of force by,
inter alios, agents of the State.184
This procedural protection of the right to life ‘secures the accountability of agents of
the state for their use of lethal force by subjecting their actions to some form of inde-
pendent and public scrutiny capable of leading to a determination of whether the force
used was or was not justified in a particular set of circumstances’.185
As for Article 13, violations of the right to life ‘cannot be remedied exclusively
through an award of compensation to the relatives of the victim’.186 Where relatives of
the deceased have an arguable claim that the victim has been unlawfully killed by agents
of the state, the notion of an effective remedy for the purposes of Article 13 entails,
additionally to compensation, a thorough and effective investigation capable of lead-
ing to the identification and punishment of those responsible and including effective
access for the relatives to the investigatory procedure. The requirements of Article 13
are, thus, broader than the procedural obligation under Article 2 to conduct an effective
investigation.187
The Inter-American Commission and Court have insisted on prosecution for viola-
tions of right to life and personal integrity under Convention Articles 8, 25, and 1(1).188
The Court has interpreted Articles 25 and 8 as directly related; the former requires the
state to provide human rights victims access to a criminal trial as reparation for the
violation and the latter requires the criminal trial be conducted in a way that guarantees
procedural fairness to victims. Along with Article 1(1) of the Convention, these provi-
sions impose an affirmative duty on the state to effectuate personal security rights, by
having the crime investigated and those responsible prosecuted and when appropriate
punished.189 The duty must be fulfilled with due process guarantees, within a reasonable
time, and by a competent, independent and impartial tribunal. Article 25 has also been
interpreted as including victims’ access to criminal proceedings in order to guarantee
family members the right to know the truth.190 The Inter-American system’s emphasis on
investigation, prosecution and punishment is understandable given the nature of viola-
tions that have come before the Commission and Court. Most cases heard by the Court

183
  McCann, supra n. 180.
184
  Kaya, supra n. 176, para. 86, citing McCann and others, supra n. 180, 47, para. 161.
185
  Kaya, supra n. 176, para. 88.
186
 Citing Aksoy, supra n. 25, 2285–6, paras. 93–4, and Aydin, supra n. 178, 1894–6, paras. 100–3.
187
  Ergi v. Turkey, supra n. 176, para. 98.
188
 See: Castillo Paez Case, supra n. 46; Blake, supra n. 46; Bámaca Velásquez Case (2001) Series C No.
70; Villagrán Morales et al. Case (Reparations) (2001) Series C No. 77, paras. 86–7; Durand and Ugarte
Case (2001) Series C No. 89; Cantoral Benavides Case (Reparations), judgment of 3 Dec. 2001 (2002)
Series C No. 88, para. 68; Trujillo Oroza Case (2002) Series C No. 92; and Barrios Altos Case (Reparations)
(2001) Series C No. 87.
189
  Paniagua Morales, supra n. 188; Durand and Ugarte, supra n. 188; Genie Lacayo, supra n. 123;
Blake, supra n. 46; Villagrán Morales, supra n. 188; Bámaca Velásquez, supra n. 188.
190
  Bámaca Velásquez, supra n. 188; Castillo Paez, supra n. 46; Barrios Altos, supra n. 188.
110 The Institutional Framework

have involved disappearances, torture, and death. With respect to disappearances, the
obligation to investigate continues as long as the uncertainty over the fate of the disap-
peared person persists.191
For certain violations, all measures short of investigation, prosecution and pun-
ishment may be found insufficient to satisfy the right to a remedy. In 1996, the
Inter-American Commission concluded that the Chilean Truth Commission192 was
an inadequate response to the violations that took place during the Pinochet regime.
According to the Commission, the government’s recognition of responsibility, its partial
investigation of the facts and subsequent payment of compensation were ‘not enough, in
themselves, to fulfil its obligations under the Convention’, because the government had
failed to identify the perpetrators, which made it impossible for the victims to establish
responsibility before civil courts, and the state failed to take any punitive action against
the perpetrators. According to the IACHR, ‘the State has the obligation to investigate all
violations that have been committed within its jurisdiction, for the purpose of identify-
ing the persons responsible, imposing appropriate punishment on them, and ensuring
adequate reparations for the victims’.193
The question of punishment of wrongdoers is often debated despite the duties
imposed under international law.194 Proponents claim that prosecution, conviction and
punishment act to deter the specific wrongdoers from future violations and are also
general deterrents to human rights violations. Further, prosecution and punishment
serve as retribution and an expression of the moral condemnation of society, which
should proclaim and enforce its condemnation of abuses in order to affirm the rule of law
and fundamental societal norms. Punishment fosters the advance of constitutional and
international legal principles when the government asserts its authority over violators.
Accountability also gives significance to the suffering of the victims and serves as partial
reparation, preventing private acts of revenge and helping to rehabilitate the victims.195
The national reconciliation and healing necessary to establish a stable, democratic
society may be made more difficult, however, when there are numerous prosecutions and
punishments. Jose Zalaquett argues that ‘to set standards which are perceived as too rigid
and impractical could also end up by undermining international law’.196 Governments
may lack the power to carry out their obligation to deal with past human rights abuses
in the face of obduracy, especially where the people who should be prosecuted remain in
positions of power. Efforts to prosecute can induce the military to close ranks, to chal-
lenge democratic institutions or to attempt to overthrow the democratic government.197
In Argentina, efforts to prosecute led to several rebellions during the 1980s against the
civilian government.198

191
  Report No. 25/98, Chile, IACHR, Annual Report of the Inter-American Commission on Human
Rights 1997, OEA/Ser.L/V/II.98, Doc. 7 rev. (1998), 535.
192
 Ibid.
193
  Garay Hermosilla et al., Rep.  36/96, Case 10.843 (Chile), Annual Report of the Inter-Am.
Comm’n H.R. 1996, 156, para. 77.
194
 Ibid.
195
  Mob justice can be seen in cycles in countries where impunity is known. See Scharf, supra n. 166, 14.
196
  J. Zalaquett, ‘Confronting Human Rights Violations Committed by Former Governments:
Principles Applicable and Political Constraints’, in Aspen Institute (ed.), State Crimes: Punishment or
Pardon? (New York, 1989) 27.
197
  Dianne Orentlicher traces the Uruguayan amnesty law to the challenge mounted by the military
when summoned to appear to answer charges relating to human rights violations committed in the
1970s. The military defendants refused to respond: D. Orentlicher, ‘Settling Accounts: The Duty to
Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale L.J. 2537, 2611.
198
 Ibid, 2545.
 Domestic Remedies 111

Prosecution nonetheless has a key role to play in establishing an authoritative record

of abuses that will withstand later revisionist efforts. The emphasis in criminal trials on
full and reliable evidence in accordance with due process usually makes the results more
credible than those of other, more political proceedings, including truth commissions.
The Chief Prosecutor at Nuremberg said that the documentation of Nazi atrocities was
one of the most important legacies of the trials. The Nazi actions were documented
‘with such authenticity and in such detail that there can be no responsible denial of these
crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among
informed people’.199 The problem of the security forces is widespread and particularly
serious. Often there is no remorse, but, instead, their leaders justify human rights abuses
on the basis of national security, perhaps conceding some ‘unavoidable excesses’.
The problems raised by efforts to prosecute perpetrators of human rights abuses
have led some governments to negotiate or declare amnesties, arguing that the need for
reconciliation outweighs the interests in accountability and redress.200 Amnesties thus
continue to limit access to justice in some states.201 The Inter-American Commission
and Court were the first to conclude that such measures violate the victim’s rights to
judicial protection and are contrary to the duty to investigate, prosecute and punish
those responsible. In holding the amnesty laws passed by Peru to be contrary to Articles
8(1), 25 and 1(1), and 2 the Court declared that:
all amnesty provisions, provisions on prescription and the establishment of measures designed to
eliminate responsibility are inadmissible, because they are intended to prevent the investigation
and punishment of those responsible for serious human rights violations such as torture, extraju-
dicial, summary or arbitrary execution and forced disappearance, all of them prohibited because
they violate non-derogable rights recognized by international human rights law.202
In a strongly worded direction to the state, the Court said that:
 . . . the said laws lack legal effect and may not continue to obstruct the investigation of the grounds
on which this case is based or the identification and punishment of those responsible, nor can they
have the same or a similar impact with regard to other cases that have occurred in Peru, where the
rights established in the American Convention have been violated.203
The UN Committee against Torture has also held that amnesties for the crime of
torture are incompatible with the obligations of states parties under the Convention,
including under the remedies provision (Article 14). As its General Comment No. 2
stated, ‘amnesties or other impediments which preclude or indicate unwillingness to
provide prompt and fair prosecution and punishment of perpetrators of torture or
ill-treatment violate the principle of non-derogability’. The Committee against Torture
considers that amnesties for torture and ill-treatment pose impermissible obstacles to a
victim in his or her efforts to obtain redress and contribute to a climate of impunity and
therefore states parties should remove any amnesties for torture or ill-treatment.

199
 See Report to the President from Justice Robert H. Jackson, Chief of Counsel for the United States
in the Prosecution of Axis War Criminals (7 June 1945) (1945) 39 Am. J. Int’l L. (Supp.) 178, 184.
200
  Examples of such laws include Ley 104 of 30 Dec. 1993, Regimen Penal Colombiano envio 36
(februro/abril de 1994) and envio 38 (noviembre de 1994), ss. 8122 et seq. (Colombia); Decree Law
2.191 of 18 Apr. 1978, Diario oficial No. 30/042 (19 Apr. 1978) (Chile); Decree Law 22.924 of 22 Sept.
1983, Legislacion Argentina (1983B), at 1681 (Argentina).
201
  See E. Voyakis, ‘Access to Court v. State Immunity’, (2005) 52 ICLQ 297. But see Simmon y otros/
privacion ilegitima de la libertad, Supreme Court (Argentina, causa No. 17, 768, 14 June 2005 holding
that amnesty laws adopted in 1986 and 1987 were unconstitutional and void).
202
  Barrios Altos Case, supra n. 188, para. 41. 203
  Ibid, para. 44.
112 The Institutional Framework

The former United Nations Human Rights Commission and the Sub-Commission
concluded that impunity is one of the main reasons for the continuation of grave viola-
tions of human rights throughout the world,204 increasing abuses in some instances.205
The United Nations Working Group on Involuntary or Forced Disappearances similarly
claims: ‘Impunity is perhaps the single most important factor contributing to the phe-
nomenon of disappearance. Perpetrators of human rights violations . . . become all the
more irresponsible if they are not held to account before a court of law’.206 Remedies for
the most serious violations thus now include investigations and sanctions.

4.2.7 The right to the truth

Victims usually seek revelation and acknowledgement of the truth of events involved in
human rights violations.207 Acquiring the truth may aid healing, vindicates the memory
of deceased victims, and helps promote reform by encouraging the state to confront its
past. Truth telling addresses some of the moral injury, but usually needs to be accom-
panied by compensation or further non-monetary relief. Although most human rights
treaties do not explicitly state a right to know the truth, such a right has been held to be
encompassed in the conventional duty to ‘ensure’ or ‘protect’ human rights208 and thus
is an obligation of the state.209
The law of remedies recognizes the dual nature of the right to the truth, being a right
that pertains to individual victims as well as society as a whole. In 2005, the updated
set of principles to combat impunity asserted the ‘inalienable right to know the truth’
and the corresponding duty of the state to ensure this right.210 Principle 2 insists that
‘[i]‌rrespective of any legal proceedings, victims and their families have the imprescripti-
ble right to know the truth about the circumstances in which violations took place and,
in the event of death or disappearance, the victims’ fate’.
Truth telling is heavily emphasized because proponents claim it protects and deters,
depoliticizes and shows solidarity with victims. Most victims seek the truth as part of jus-
tice, because it validates their individual experiences. Victims may have faced ostracism
or an assumption that what was done to them was warranted, reflecting social acceptance
of the frequent official explanation that the victim was a criminal, terrorist, subversive
or otherwise deserving of the mistreatment that occurred. Acknowledgement is thus

204
  United Nations Commission on Human Rights, Report on the Consequences of Impunity, UN Doc.
E/CN.4/1990/13.
205
  See cases cited in Scharf, supra n. 166, 12, n. 81.
206
  Report of the Working Group on Enforced or Involuntary Disappearances, UN ESCOR, Comm’n on
Human Rights, 47th Sess., para. 406, UN Doc. E/CN.4/1991/20 (1991).
207
  See ‘Under Pressure, Putin Promises Inquiry’, International Herald Tribune, 11–12 Sept. 2004,
1, reporting that the Russian President responded to the public demands that he investigate the Beslan
massacre of some 368 persons, half of them children held hostage at a school.
208
  Art. 1(1) of the American Convention requires State Parties to ‘ensure to all persons subject
to their jurisdiction the free and full exercise’ of the rights provided in the Convention: American
Convention on Human Rights, 22 Nov. 1969, 9 ILM 673, OEA/Ser.K/XVI/I.1, doc. 65, rev. 1 corr.1
(1970) (entered into force 18 July 1978).
209
  Inter-American Court of Human Rights, Velásquez-Rodríguez Case (1988) Series C No. 4, para.
174, OAS/ser.L/V/III.19, doc. 13 (1988).
210
  E/CN.4/2005/102/Add.1 (‘Every people has the inalienable right to know the truth about past
events concerning the perpetration of heinous crimes and about the circumstances and reasons that led,
through massive or systematic violations, to the perpetration of those crimes’). See also Working Group
on Enforced or Involuntary Disappearances General Comment on the Right to the Truth in Relation
to Enforced Disappearances.
 Domestic Remedies 113

important; it ‘is what happens to knowledge when it becomes officially sanctioned and
enters the public realm’211 where it can educate citizens about the nature and extent of
prior wrongdoing and become a powerful tool of rehabilitation. Moreover, an official
report about events can establish the predicate for compensation.
In a study on the right to the truth,212 the OHCHR claims that this concept is his-
torically rooted in international humanitarian law, in particular, in regard to the right
of families to know the fate of their relatives, together with the obligation of parties to
an armed conflict to search for missing persons.213 The International Red Cross and Red
Crescent Movement considers that the right to know the truth about the fate suffered by
victims of forced disappearance applies both to situations of international armed conflict
as well as those of internal armed conflict.214 Indeed, the International Committee of the
Red Cross (ICRC) concluded that the right to truth is a norm of customary international
law and ‘each party to the conflict must take all feasible measures to account for persons
reported missing as a result of armed conflict and must provide their family members
with any information it has on their fate’.215
The ad hoc working group on human rights in Chile, the Working Group on Enforced
or Involuntary Disappearances (WGEID) and the Inter-American Commission on
Human Rights (IACHR)216 have also developed doctrine on this right, initially based
on Articles 32 and 33 of the Additional Protocol I  to the Geneva Conventions, of
12 August 1949.217 The International Convention for the Protection of All Persons from
Enforced Disappearance is the first treaty to provide explicitly that each victim has the
right to know the truth regarding the circumstances of an enforced disappearance, the
progress and results of the investigation and the fate of the disappeared person. Earlier,
the UN General Assembly addressed issues related to the right to the truth in numerous
resolutions since 1974 regarding missing persons or those subjected to enforced disap-
pearances.218 These resolutions often refer to ‘the desire to know’ as ‘a basic human need’.
The right to the truth has also been the subject of a number of resolutions and dec-
larations by the Human Rights Council (HRC) and other international bodies.219 On

211
  Uruguay Report, 29/92 reprinted in (1992) 13 Hum.Rts.L.J. 340, 18.
212
  Study on the right to the truth; Report of the Office of the United Nations High Commissioner
for Human Rights, E/CN.4/2006/91, 8 February 2006.
213
  Article 32 of the Additional Protocol to the Geneva Conventions, of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts.
214
 Resolution II of the XXIV International Conference of the Red Cross and Red Crescent
(Manila 1981).
215
  ‘Rule 117’ in ICRC, Customary International Humanitarian Law, i, ‘Rules’ (2005), 421.
216
  IACHR, Report No. 136/99, Case 10.488 Ignacio Ellacuría et  al., para. 221; CCPR/C/79/
Add.63, para. 25.
217
  First report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1435,
para. 187; Annual Report of the Inter-American Commission on Human Rights, (IACHR), 1985-1986,
OEA/Ser.L/V/II.68, Doc. 8, rev. 1, p. 205.
218
 General Assembly resolutions 3220 (XXIX), 33/173, 45/165, and 47/132.The former UN
Human Rights Commission also made reference to the right to know or right to the truth, in particular
in relation to amnesty laws as well as in regard to missing persons and the right of family members
to know their fate and whereabouts. Commission resolution 2005/66 recognized ‘the importance of
respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote
and protect human rights’ (para. 1).
219
  See, e.g., Human Rights Council Res. 2005/66, 9/11 and 12/12. Resolution 12/12 ‘[r]‌ecognises
the importance of respecting and ensuring the right to the truth as to contribute to ending impunity and
to promote and protect human rights’. Promotion and Protection of All Human Rights, Civil, Political
Economic, Social and Cultural Rights, Including the Right to Development, Right to the Truth, UN
Doc. A/HRC/RES/12/12 (12 Oct. 2009).
114 The Institutional Framework

12 October 2009, the HRC, for example, adopted a resolution on the right to the truth,
calling upon states to take steps to facilitate efforts by victims or their next of kin to
determine the truth about gross violations of human rights. In its resolution, the HRC
emphasized that ‘the public and individuals are entitled to have access, to the fullest
extent practicable, to information regarding the actions and decision-making processes
of their Government’.220
The HRC has expressly recognized the right to the truth for families of victims of
enforced disappearance and arbitrary executions, in connection with the right not to
be subjected to torture or ill-treatment.221 The HRC also found that the required effec-
tive remedy includes information about the violation or, in cases of death of a missing
person, the location of the burial site. It has urged states parties to allow the victims
of human rights violations to find out the truth about those acts in order to combat
impunity.
At the regional level, the Parliamentary Assembly of the Council of Europe has passed
a series of recommendations regarding the right of family members to know the truth
about the fate of those who disappeared.222 The European Union has also affirmed the
right to the truth in its resolutions on missing persons and in reference to the process
of disarming and demobilizing paramilitary groups in the context of peace talks.223 The
European Court of Human Rights (ECtHR) has inferred the right to know the truth as
part of the right to be free from torture or ill-treatment, the right to an effective remedy
and the right to an effective investigation and to be informed of the results.224 The Court
has held that a state’s failure to conduct an effective investigation aimed at clarifying the
whereabouts and fate of missing persons ‘who disappeared in life-threatening circum-
stances’ constitutes a continuing violation of its procedural obligation to protect the
right to life.225
The OAS General Assembly has urged states to inform relatives concerning the fate
of the victims of forced disappearance226 and in 2005, the OAS Permanent Council
adopted a resolution urging the members of OAS to take all measures necessary to pre-
vent enforced disappearances and to ensure the right to truth of the relatives of disap-
peared. In its work, the Inter-American Commission on Human Rights has recognized
the right ‘to know the full, complete, and public truth as to the events that transpired,
their specific circumstances, and who participated in them’ as ‘part of the right to rep-
aration for human rights violations’.227 The Commission also deems the right to the
truth to be among the guarantees of non-repetition, asserting that ‘every society has

220
  Human Rights Council Res. 12/12, 12th Sess., Promotion and Protection of All Human Rights,
Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Right to
the Truth, A/HRC/RES/12/12, at 3 (12 Oct. 2009).
221
  Report of the Human Rights Committee, Vol. II, (2009), GAOR 64th Sess., Supp. No. 40
(A/64/40), 504, paras. 20-22. The Committee has determined that the next of kin of detained and
disappeared family members should be considered victims of ill treatment with a right to learn of their
family members’ fate. Quinteros v. Uruguay, P 14, Comm. No. 107/1981, UN Doc. CCPR/C/OP/2
(1983).
222
  Council of Europe, Parliamentary Assembly, resolution 1056 (1987); Res. 1414 (2004), para. 3,
and resolution 1463 (2005), para. 10 (2).
223
  See, e.g., European Parliament, resolution on missing persons in Cyprus, of 11 January 1983.
224
  Tas v. Turkey, supra n. 177; Cyprus v. Turkey, App. No. 25781/94 (2001).
225
  Cyprus v. Turkey, supra n. 224, para. 136.
226
  AG/RES. 666 (XIII-0/83), of 18 November 1983, para. 5, and AG/RES.742 (XIV-0/84), of 17
November 1984, para. 5.
227
  Inter-American Court of Human Rights, Rep. 37/00, Case 11.481 (Monsignor Oscar Arnulfo
Romero y Galdamez v. El Salvador), paras. 147–8.
 Domestic Remedies 115

the inalienable right to know the truth about past events, as well as the motives and the
circumstances in which aberrant crimes came to be committed, in order to prevent rep-
etition of such acts in the future’.228
The Inter-American Court, too, has insisted that for disappearances and extrajudicial
executions, there is the right of relatives and society to ‘be informed about everything
that happened in relation to the violations’, as ‘an important measure of reparations’.229
The Inter-American Court has repeatedly held that a state’s failure to disclose the fate of
a person disappeared or detained by agents of the state constitutes a continuing violation
of the prohibition of inhuman treatment with respect to family members.230 The right to
truth is held to arise from the general duty of the states to respect and guarantee human
rights, the right to a hearing by a competent, independent and impartial tribunal, the
right to an effective remedy and judicial protection and, the right to seek information.231
The Inter-American Court also links the right to the truth to the remedial rights and
corresponding state responsibilities established in American Convention Articles 8 and
25,232 together with the general obligations enshrined in Article 1.233
More recent jurisprudence insists that there exists an autonomous right to the truth.234
The Inter-American system has gradually accepted that the right to the truth is not only an
individual right linked to access to justice,235 but also a collective right of society as a whole.
In Bámaca-Velásquez v. Guatemala, the Inter-American Commission first described the col-
lective right of society as a whole to ‘have access to essential information for the development

228
 Inter-Am.Comm’n H.R., Annual Report, 1985–86, OEA/Ser.L/V/II.68, doc. 8 rev. 1, 191,
192–93 (1986).
229
  Velásquez-Rodríguez Case, supra n. 27, para. 181; Blake case, supra n. 46, para. 97; Myrna Mack Chang
Case (2003) Series C No. 101, para. 274.
230
 Inter-American Court of Human Rights, Blake v.  Guatemala (24 January 1998)  Series C
No. 36, 114-16; Villagran-Morales, et al. (19 November 1999) Series C No. 63, paras. 177, 253.4;
Bámaca-Velásquez v. Guatemala (25 November 2000) Series C No. 70, 159-166, 230.2; Mapiripán
Massacre v. Columbia (15 September 2005) Series C No. 134, 140-46, 335.1; Pueblo Bello Massacre
v. Columbia (31 January 2006) Series C No. 140, 163, 296.3; Baldeón-García v. Peru (6 April 2006) Series
C No. 147, 127-30, 218.4; Ximenes-Lopes v. Brazil (4 July 2006) Series C No. 149, 155-63, 262.3;
Montero-Aranguren et al. v. Venezuela (Detention Center of Catia) (5 July 2006) Series C No. 150, 53,
160.2 (Venezuela acknowledged its violation of Articles 5 & 1(1)); Goiburú et al. v. Paraguay (Condor)
(22 September 2006) Series C No. 153, 95-104, 192; La Cantuta v. Peru (19 November 2006) Series
C No. 162, 81-98, 122-29, 254.5; Anzualdo Castro v. Peru (Preliminary Objection, Merits, Reparations
and Costs) (22 September 2009) Series C No. 202, 113-14; Chitay Nech et al. v. Guatemala (25 May
2010) Series C No. 212, 209; and Manuel Cepeda Vargas v. Colombia (26 May 2010) Series C No. 213,
195. See also Las Dos Erres Massacre v. Guatemala (Preliminary Objections, Merits, Reparations and
Costs) (24 November 2009) Series C No. 211, 213 (‘[T]‌he impunity that persists in the instant case is
experienced by the alleged victims as a new traumatic impact, which has been generated by feelings of
anger, frustration and even fear of retaliation due to their search for justice’).
231
  Annual Reports of IACHR, 1985–1986, 205; and 1987–1988, 359.
232
  See Inter-American Court of Human Rights, Tibi v. Ecuador (2004) Series C No. 114.
233
  Ximenes-Lopes v. Brazil (2006) Series C No. 149, 262.4; also paras.170–206; Villagran-Morales
et al. (1999) Series C No. 63, 253.6; Bámaca-Velásquez v. Guatemala (Order of the Court) (2000)
Series C No. 70,195, 230; Barrios Altos v. Peru (2001) Series C No. 75, 51.2(c); Mapiripán Massacre
v.  Columbia (2005) Series C No. 134, 195-241, 335.5; Pueblo Bello Massacre v.  Columbia (2006)
Series C No. 140,169-212, 296.4; Baldeón-García v. Peru (2006) Series C No. 147, 139-69, 218.5;
Montero-Aranguren et al. v. Venezuela (Detention Center of Catia) (2006) Series C No. 150, 53, 160.2;
Goiburú et al. v. Paraguay (Condor) (2006) Series C No. 153, 111-33, 192; and La Cantuta v. Peru
(2006) Series C No. 162, 81-98, 135-61, 254.6.
234
  Inter-American Court of Human Rights, Blanco-Romero v. Venezuela (2005) Series C No. 138,
62. See also Castillo-Páez v. Peru (1997) Series C No. 34, 86.
235
  Inter-American Court of Human Rights, Barrios Altos v. Peru (2001) Series C No. 75, 48. See also
Pueblo Bello Massacre v. Columbia (2006) Series C No. 140, 219; Chitay Nech et al. v. Guatemala (2010)
Series C No. 212, 206.
116 The Institutional Framework

of democratic systems’.236 In the November 2009, judgment in Los Dos Erres, the Court
acknowledged the societal dimension of the right, noting its importance, but suggesting that
it was already served by remedies the court ordered on behalf of the individual claimants.237 In
addition to resolving lingering uncertainty about the fate of the victim, public dissemination of
the truth corrects any negative image that may have been created about the victim. The Chilean
Truth Commission stated that ‘only the knowledge of the truth will restore the dignity of the
victims in the public mind, allow their relatives and mourners to honour them fittingly, and in
some measure make it possible to make amends for the damage done’.238
In its Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,
the African Commission infers that the right to the truth forms a constitutive part of the
right to an effective remedy.239 Moreover, the African Commission on Human and Peoples’
Rights considers that the failure to give information about the fate and whereabouts of dis-
appeared persons or of the circumstances of an execution and the exact place of burial of the
executed persons can amount to torture or ill-treatment.240
Some peace agreements, like the General Framework Agreement for Peace in Bosnia
and Herzegovina241 have enshrined the right of families to know the fate of persons unac-
counted for and have instituted mechanisms of implementation. In 2004, the Parliament
of Bosnia and Herzegovina adopted a law on missing persons, which reaffirms the right of
the families to know the fates of their missing relatives.242 In a case concerning the 1995
massacre of Srebrenica, the Bosnia-Herzogovina Human Rights Chamber found that the
failure of Republika Srpska authorities ‘to inform the applicants about the truth of the fate
and whereabouts of their missing loved ones’ violated European Convention Article 3 and
failure to disclose information concerning some 7,500 missing men violated the applicants’
right to respect for their private and family life.243
In several countries, the right to the truth has been explicitly cited as a legal basis for the
establishment of truth commissions, grounded in the stated need of the victims, their relatives
and society as a whole to know the truth about what has taken place; to facilitate the reconcili-
ation process; to contribute to the fight against impunity; and to reinstate or to strengthen
democracy and the rule of law.244 National courts have also recognized the right to the truth.245

236
  Bámaca-Velásquez v. Guatemala (Order of the Court) (2000) Series C No. 70, P 197.
237
  Las Dos Erres Massacre v. Guatemala (Preliminary Objections, Merits, Reparations and Costs)
(2009) Series C No. 211, 310.
238
  Comision Nacional De Verdad y Reconciliacion, Report of the Chilean National Commission on
Truth and Reconciliation (trans. Philip Berryman), 5 (quoting Supreme Decree No. 355 of 25 Apr. 1990,
which created the Commission).
239
  African Union, African Commission on Human and Peoples’ Rights, DOC/OS (XXX) 247.
240
  Annual report of IACHR—1978, OEA/Ser.L/II.47, doc. 13/Rev.1; and Amnesty International
v. Sudan, Comm. Nos. 48/90, 50/91, 52/91, 89/93 (1999) Afr. Commn HPR.
241
  Agreements on Refugees and Displaced Persons (annex 7, art. V) and on the Military Aspects of
the Peace Settlement (annex 1A, art. IX).
242
  Law on Missing, Bosnia and Herzegovina Official Gazette 50/04. A.
243
  See, e.g. Srebrenica Cases, Case No. CH/01/836, et al., Decision on Admissibility and Merits, Bosnia
and Herzegovina: Human Rights Chamber for Bosnia and Herzegovina (7 Mar. 2003), paras. 220(4), 181
and 200(3). See also, Unkovic v. Bosnia and Herzegovina, Case No. CH/99/2150, Decision on Review, PP
101-19 (Hum. R. Chamber for Bosnia and Herzegovina, 10 May 2002). Although the chamber found that
Article 3 protected families from the suffering caused by the government’s failure to provide information, it
did not find that the government’s conduct, in this particular case, constituted a violation.
244
  Mexico City Agreements, Agreement No. IV ‘Truth Commission’, United Nations, DPI/1208-
92615-July 1992-7M; and Overview of the Sierra Leone Truth and Reconciliation Commission
report—Report of the truth commission, October 2004, para. 27. See also, the Peace Agreement
between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (art.
XXVI) and the Government of Chile Supreme Decree No. 355 of 25 April 1990, establishing the Truth
and Reconciliation Commission.
245
  Constitutional Court of Colombia, Judgments of 20 January 2003, Case T-249/03 and C-228
of 3 April 2002; Constitutional Tribunal of Peru, Judgment of 18 March 2004, Case 2488-2002-HC/
 Domestic Remedies 117

Truth commissions thus have become an important source of documentation of

human rights abuses and one means of implementing the right to the truth. From 1974
to 2011, reports indicate that some forty truth commissions have been established.246
Governments sometimes announce a formal acceptance of responsibility as part of the
process247 and may identify perpetrators in anticipation of prosecution.248 The reports
of truth commissions may and should contain a comprehensive and integrated histori-
cal record of the offences in question and the context in which they occurred. South
African Justice Richard Goldstone has noted the importance of establishing the his-
torical record: ‘If it were not for the Truth and Reconciliation Commission people who
today are saying that they did not know about apartheid would be saying that it didn’t
happen. This is a fact, and it cannot be underestimated’.249
As an alternative to domestic truth commissions, the United Nations and regional
organizations have mounted several international investigations of gross and system-
atic human rights abuses and have issued reports documenting their findings, as in El
Salvador250 and Guatemala.251 The chapters of the Guatemala peace agreement con-
cerned with rebuilding Guatemalan society and redressing past wrongs included recom-
mendations on the establishment of a truth commission252 and an agreement on the
rights of indigenous peoples. Article III of the Agreement recognized the ‘need for firm
action against impunity’, as part of which the government pledged not to sponsor the
adoption of any measure to prevent the prosecution and punishment of persons respon-
sible for human rights violations. Article VIII recognized that ‘it is a humanitarian duty
to compensate and/or assist victims of human rights violations’ and said it should be
effected by means of government measures.
The Sierra Leone Truth Commission, established pursuant to the Lomé Peace
Agreement of 17 July 1999 and subsequent implementing legislation, aimed ‘to work to

TC; Agreement of 1 September 2003 of the National Chamber for Federal Criminal and Correctional
Matters, Caso Suárez Mason, Rol. 450 and Caso Escuela Mecánica de la Armada, Rol. 761.
246
 Data available at http://www.amnesty.org/en/international-justice/issues/truth-commissions
(accessed March 2011).
247
 See: El Salvador, Accountability and Human Rights: The Report of the United Nations Commission
on the Truth for El Salvador (1993), UN Doc. S/25500 [hereinafter Report on El Salvador]; Honduran
National Commissioner for the Protection of Human Rights, The Facts Speak for Themselves (1994);
Nunca Mas, (Never Again): Report of Conadep (Argentina National Commission on the Disappearance
of Persons)(1984); IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.66,
Doc.17 (1985).
248
  In some states, however, prosecution is precluded. Argentina investigated and published the truth,
passed legislation providing compensation to the victims and families, and judged and imprisoned sev-
eral of the junta leaders. The victims were unable to pursue criminal prosecutions of individual violators.
See Inter-Am.Ct.H.R., Argentina, Rep. No. 28/92, reprinted in (1992) 13 Hum.Rts.L.J. 336. Uruguay
also declared an amnesty, but permitted victims to seek damages in civil court: Inter-Am.Ct H.R.,
Uruguay Report, 29/92 reprinted in (1992) 13 Hum.Rts.L.J. 340, para. 27. Identification of perpetrators
by truth commissions is controversial because if the reporting body has no prosecutorial powers, then
individuals may be identified as wrongdoers without the benefit of a proper defence in a fair hearing.
249
  Justice Richard Goldstone, ‘Justice or Reconciliation’, University of Chicago Law School, Center
for International Studies Conference, University of Chicago, 26 Apr. 1997. See also Sir Roland Wilson,
Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait
Islander Children from Their Families (1997).
250
  Report on El Salvador, supra n. 247, Annex.
251
 Agreement between the Government of Guatemala and Unidad Revolucionaria Nacional
Guatemalteca (Guatemala City, 29 Dec. 1996), reprinted in (1997) 36 ILM 258.
252
  The Guatemalan Commission for Historical Clarification issued its report on 25 Feb. 1999, in
which it found the government responsible for the vast majority of human rights abuses that occurred
during the internal conflict.
118 The Institutional Framework

help restore the human dignity of victims and promote reconciliation by providing an
opportunity for victims to give an account of the violations and abuses suffered and for
perpetrators to relate their experiences, and by creating a climate which fosters construc-
tive interchange between victims and perpetrators, giving special attention to the subject
of sexual abuses and to the experiences of children within the armed conflict’.253 The
Commission, set up in July 2002, took approximately 7000 statements, which were fol-
lowed by hearings. It presented a final report to the president of the country on 5 October
2004, containing a detailed narrative of the country’s history, focusing on the civil war
of the 1990s, with a view to understanding its causes and making a series of findings and
recommendations.
Truth commissions can be useful in identifying modes of redress beyond the truth
sought by the victims and survivors of abuse. In South Africa, the TRC recognized
the importance not only of narrative but also of factual evidence, social dialogue, and
healing.254 In the process, the Reparations and Rehabilitation Committee asked victims
for the form of reparations they preferred; the responses indicated preferences for fur-
ther investigation of violations, compensation, scholarships, shelter, medical care, tomb-
stones for deceased family members, prosecution, and acknowledgement or apology.255
The Commission’s Final Report of October 1998 recommended that reparations should
be development-centred in community-based programs such as schools, medical and
mental health services, simple, efficient and culturally appropriate. Non-monetary repa-
rations recommended included symbolic, legal and administrative measures to ‘facilitate
the communal process of remembering and commemorating the pain and victories of
the past,’256 such as national days of remembrance and reconciliation, the installation of
memorials and monuments, and the establishment of museums, as well as correcting
legal records from the apartheid era. Compensation awards were minimal—$300 paid
to those needing interim relief—and the Commission ultimately rejected a plan for
pensions.257
In addition to recommending modes of redress, truth commissions normally make
recommendations to the government to help prevent further abuses. In Peru, the TRC
was charged with clarifying ‘the process, facts, and responsibilities of the terrorist violence
and human rights violations produced from May 1980 to Nov. 2000, whether imputable
to terrorist organizations or state agents, as well as proposing initiatives destined to affirm
peace and harmony among Peruvians’.258 The TRC’s jurisdiction extended to fact-finding
about a list of crimes linked to non-derogable rights: murders and kidnappings, forced
disappearances, torture (eventually including sexual violence) and other serious injuries,
violations of the collective rights of indigenous communities, and other crimes and seri-
ous violations of the rights of individuals,259 including crimes against children, forced dis-
placement and genocide. The TRC drew heavily from human rights law as it found that the

253
  Truth and Reconciliation Commission Act 2000 [Sierra Leone], Supplement to the Sierra Leone
Gazette Vol. CXXXI, No. 9, dated 10 February 2000, Part III, 6(2)(b).
254
  Erin Daly, ‘Reparations in South Africa: A Cautionary Tale’, (2002-2003) 33 U. Mem. L. Rev. 367.
255
  South Africa TRC Report, 179. 256
 Ibid, 176.
257
  In Sierra Leone in 2009, the government gave lump sum individual payments to the most affected
victims of the conflict, including children, of less than US$100, in contrast with the TC’s report which
recommended instead granting of life pensions.
258
  Supreme Decree 065-2001-LCM, Art. 1. For a discussion of the work of the Peruvian TRC, see
Lisa Magarrell, ‘Reparations for Massive or Widespread Human Rights Violations: Sorting out Claims
for Reparations and the Struggle for Social Justice’, (2003) 22 Windsor Y.B. Access Just. 85.
259
  Ibid, Art. 3.
 Domestic Remedies 119

Peruvian State was bound to provide remedies to those injured260 by violations attributable to
state agents as well as those committed by insurgent groups and terrorists.261
The Truth Commission recognized that certain groups, mostly poor and marginalized
indigenous and campesino communities, had been collectively injured due to mass viola-
tions directed at them, often leading to internal displacement.262 According to the TRC,
these groups could be identified as having suffered a communal harm and considered ben-
eficiaries of collective reparations. Thus, the TRC recommended a ‘Program for Collective
Reparations’ designed to provide redress, including a form of joint compensation, to the
affected communities and groups. The scheme would work by channelling financial and
technical resources into rebuilding the infrastructure of the communities and the social
institutions destroyed or impaired during the conflict.263
The Program for Economic Reparations proposed by the TRC aimed expressly to com-
pensate financially the moral and material harm suffered by victims and their families as a
result of the armed conflict. It also sought to contribute to the formation of a new ‘social
compact’ based on inclusiveness and respect for human rights and the rule of law. The
TRC recommended awards of tax-exempt monetary compensation in the forms of pen-
sions, indemnification and/or service packages. The TRC declined to specify the amount of
compensation, preferring to have the victims help define the appropriate levels of indem-
nification. Pension levels were left to be set by subsequent legislation. Other recommenda-
tions included a system of preferential ranking for beneficiaries who apply to government
programs directed at increasing employment, providing housing, and addressing health and
education. The ‘Program for Reparations in Health’ aimed at rehabilitation by treating the
psychological and physical harm suffered by victims and their families, as well as the collec-
tive beneficiaries. A similar ‘Program for Reparations in Education’ aimed to provide access
to persons who lost the chance of receiving an adequate education or finishing their studies
due to the armed conflict. The ‘Program for the Restitution of Civil Rights’ seeks to promote
the adoption of legal measures designed to redress the prejudicial legal consequences of the
conflict, especially with respect to those persons unjustly accused of terrorism or treason,
and those wrongly imprisoned for these crimes. The TRC also proposed a ‘Program for
Symbolic Reparations’, by which the government would publicly acknowledge and accept
responsibility for the harm done to individual victims and Peruvian society. The aim was
to restore the dignity of the persons affected and promote reconciliation and solidarity.264
This commission and others are often built on the assumption that they ‘are better
suited to assess the contexts, causes and patterns of human rights violations’, than are
individual cases.265 The evaluation of such commissions often focuses on the process,
from victims’ participation and the techniques used to collect their statements266 to

260
  The beneficiaries of the TRC’s proposed plan could be either individuals or collective entities.
Among individuals, beneficiaries include direct victims and the immediate family members of the vic-
tims who were killed or disappeared, and other claimants who could prove a close relationship with the
victim. Eligible direct victims would be strictly limited to persons who suffered physical or mental dis-
abilities, arbitrary imprisonment, and those who were the victims of rape and their children.
261
  Comission de la Verdad y Reconciliacion, Vol. IX pp.  117-208, http://www.cverdad.org.pe,
ch. IX, Reparations, p. 142., p. 151, n. 14 [hereinafter Informe Final] (stating that the TRC adopted
the ‘jurisprudential developments’ of the Inter-American Court in the Aloeboetoe Case). The TRC also
referred to the Court’s ‘due diligence’ standard from the Velasquez-Rodriguez case in discussing the state’s
responsibility for violations committed by non-state actors.
262
  Informe Final, supra, n. 261 at 150. 263
  Ibid, 193–202. 264
  Ibid, 159–61.
265
  A. Chapman & P. Ball, ‘The Truth of Truth Commissions: Comparative Lessons from Haiti,
South Africa and Guatemala’, in (2001) 23 Human Rights Quarterly 1-43 at 41.
266
  P. Gready, ‘Telling Truth? The Methodological Challenges of Truth Commissions’, in F. Coomans,
F. Gruenfeld, and M. Kamminga (eds.) Methods of Human Rights Research (Antwerp, 2009), 15.
120 The Institutional Framework

implementation of the concluding recommendations. Implementation is often a lengthy

process,267 hampered by a lack of political will and scarcity of financial resources.268 The
report of the Guatemalan Commission for Historical Clarification specifically men-
tioned the necessity of including the Mayan population most affected by the war,269
but dialogue between Mayans and the rest of Guatemalans has been quite limited.270
The National Reparation Program, created subsequently, has encountered financial and
logistics problems resulting in very limited distribution of monetary compensation and
severe resistance to prosecution of those responsible for the violations. Putting into oper-
ation the recommendations of truth commissions, especially on redress and sanctions,
can be quite problematic.

4.2.8 Enforcement of judgments
Finally, states have an obligation to take steps in order to ensure that judicial and admin-
istrative decisions on redress are enforced or implemented. The purpose of any remedial
proceeding is to give effect to the rights contained in various human rights instruments.
Therefore, follow-up and enforcement mechanisms must be established and be available
and accessible in practice. As a way to promote enforcement, United Nations Special
Rapporteurs have recommended implementing measures, including sanctions, against
those who interfere with the implementation of rights enshrined in the instruments.271
The European Court of Human Rights has held that remedial rights under Article
6(1) are violated if governmental authorities fail to comply in practice and within a
reasonable time with the domestic court’s judgments.272 In the Inter-American system
as well, enforcement of judgments is encompassed within Article 25 of the Convention,
which establishes the duty of states parties to provide a simple, prompt, and effective
recourse for the protection and assurance of rights. The IACHR has held on several occa-
sions that failure to abide by a binding judicial decision constitutes a continuing breach
of Article 25 of the American Convention.

4.3  Gross and Systematic Violations

The discussion of international human rights law, especially as it has developed within
the United Nations, separates situations of gross and systematic violations of human
rights from individual cases. Though never exactly defined,273 the phrase ‘gross and

267
  The Peruvian TRC published a reparations program at the end of August 2003, but faced numerous
problems. See Informe Final, supra, n. 261.
268
  S. Herencia Carrasco, ‘Transitional Justice and the Situation of Children in Colombia and Peru’,
Innocenti Working Paper No. 2010-16. Florence, UNICEF Innocenti Research Centre at12.
269
  See the final report of the Commission for the Historical Clarification ‘Guatemala: Memory of
Silence’.
270
 See A. Issacs, ‘Confronting the Past? The Challenge of Truth, Justice and Reparations in
Guatemala’, Madrid: Real Instituto Elcano de Estudios Internacionales y Estrategicos, 10 January 2006
available at http://www.realinstitutoelcano.org/analisis/870/Isaacs879.pdf.
271
 CMW/C/MEX/CO/2, 2011, para. 28; CEDAW, general recommendation No. 24 (1999),
para. 15.
272
  See, e.g. European Court of Human Rights, Okyay v. Turkey, 2005-VII (12 July), 43 EHRR 788
(2006).
273
  ECOSOC Resolution 1503 (XLVIII) (1970) authorizes the United Nations Sub-Commission on
Prevention of Discrimination and Protection of Minorities to consider communications received from
 Domestic Remedies 121

systematic’ includes both a quantitative and a qualitative element: ‘gross’ violations are

those that are deemed particularly serious in nature because of their cruelty or depravity,
while ‘systematic’ violations suggest an official, widespread pattern or practice.
For several reasons, the quantitative and qualitative differences between gross and
systematic violations and individual cases affect the scope and nature of remedies. First,
gross and systematic violations often accompany internal armed conflicts where the sheer
number of victims and perpetrators may overwhelm the best efforts to provide redress.274
Rwanda and Cambodia illustrate situations where tens of thousands of individuals par-
ticipated in mass killings and in the process undermined each state’s institutions and
social fabric.275 Second, the transition from repression or conflict to establishing or
reinstating the rule of law may be hampered by a weak government presiding over a
fragile economy with few governmental resources.276 The money that is available may
be needed to build national institutions, leaving insufficient funds to redress victim’s
injuries. Third, widespread human rights abuses usually implicate many if not most
members of society.277 Given these problems, governments may face the problem of try-
ing to achieve simultaneously several goals, including rebuilding institutions and infra-
structure, preventing further conflict and abuse, rehabilitating society and victims, and
reconciling individuals and groups.278
Not surprisingly, responses to gross and systematic violations have varied, following polit-
ical changes in countries of Central and Eastern Europe, Asia, Latin America and Africa.279
Most of the approaches have been compromises that resulted in partial accountability and
limited redress, leaving many victims without remedies and perpetrators unsanctioned.
Some governments have chosen to prosecute the ‘worst’ violators, while others have offered
reduced sentences or pardons in exchange for full confessions and apologies. Others have
chosen not to prosecute at all, but to rely on truth commissions and/or civil remedies.280
Each response represents a deliberately chosen social policy. From the perspective
of victims, compensation is often too limited despite its importance in aiding victims

individuals and groups that ‘appear to reveal a consistent pattern of gross and reliably attested violations
of human rights and fundamental freedoms’.
274
  Rudolf Rummer estimates that internal conflicts and systematic human rights violations this
century have caused some 170 million deaths, compared to 33 million persons killed in international
military conflicts: Rudolf J. Rummel, Death by Government (1994), 9. Jennifer Balint claims that the
period from the end of the Second World War to 1996 included at least 220 non-international conflicts
that may have resulted in 86 million deaths: Jennifer Balint, ‘An Empirical Study of Conflict, Conflict
Victimization, and Legal Redress’, in Christopher C. Joyner (ed.), Reining in Impunity for International
Crimes and Serious Violations of Fundamental Human Rights (Nouvelles Etudes Penales 14)  (1998),
101, 107.
275
  More than 100,000 Rwandans were probably involved in the genocidal slaughter that took place
in the country. Ninety-five per cent of the country’s lawyers and judges were either killed or in exile or
prison. With 115,000 Rwandans detained in prisons, the Ministry of Justice had seven attorneys on its
staff at the end of the conflict. See ‘Symposium: Accountability for International Crimes and Serious
Violations of Fundamental Human Rights’ (1996) 50 Law and Contemp. Prob. 135.
276
  Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human
Rights and Fundamental Freedoms, Report of the Secretary-General prepared pursuant to Commission
Resolution 1995/34, E/CN.4/1996/29/Add.1 (1996) (4 Jan. 1996).
277
  Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human
Rights and Fundamental Freedoms, Report of the Secretary-General prepared pursuant to Commission
Resolution 1995/34, E/CN.4/1996/29/Add.1 (1996) (4 Jan. 1996) at 36.
278
 Zalaquett, supra n. 196, 29.
279
  Stanley Cohen, ‘State Crimes of Previous Regimes; Knowledge, Accountability, and the Policing
of the Past’ (1995) A.B.A. J. L. & Soc. Pol’y 7.
280
  See Luc Huyse, ‘Justice after Transition: On the Choices Successor Elites Make in Dealing with
the Past’ (1995) 20 L. & Soc. Inquiry 51.
122 The Institutional Framework

to manage the material aspects of their losses and its value in representing an official
acknowledgement of the wrong done. One well-known psychiatrist comments that:
Some torture victims seek psychological help but all of them want social justice . . . Allied to this
is the vital question of official reparation for human rights crimes. Victims may better become
survivors if some part of the legacy of the past is addressed . . . Justice, even if long delayed, is
reparative.281
Ability to compensate is undoubtedly a limiting factor in some cases. A  United
Nations Victims of Crime report recommended that ‘if it is uncertain whether the budg-
etary means of the State will be sufficient to cover an unknown number of claimants, a
fund should be established to limit the financial burden. A basic amount should be paid
out immediately and the difference paid later, the final amount payable to each claimant
being known only at the time when it is clear how many claimants filed claims and the
amounts distributable out of the fund’.282
The quality and quantity of the violations may suggest using administrative solutions
like sampling, or summary procedures that can assist in affording swift resolution of
claims. In most instances of mass violations, compensation will not afford full reparation
and requires supplemental measures. Loss of reputation and a sense of self-worth may be
as harmful to the individual as material loss. Symbolic reparations through government
acknowledgement of the wrongs done also serves as a remedy for these individuals, along
with an effort to ensure the accountability of those who perpetrated the abuses. In sum,
the same purposes that underlay all remedies—redress for the victims and deterrence
for potential violators—apply in this context; but the nature and scope of the violations
requires that more be done to redress and to deter.

4.3.1 Administrative reparations programs

In recent years, states have established or proposed compensation schemes to provide
redress for victims of systematic human rights violations, in addition to or in the place
of individual claims through litigation. The 1988 Brazilian Constitution contains a pro-
vision on reparations that was followed, in 1996, by adoption of a law providing com-
pensation to the relatives of persons who disappeared after capture by the Army in the
1960s and created a blue-ribbon commission to receive requests from other presumptive
victims of the military dictatorship. In Argentina, the government similarly chose to
compensate more than 8,000 persons held in detention without charges, forced into
exile under the state of siege, or tried by military courts between 1974 and 1983.
The IACHR has written extensively on the issue of constructing remedies for wide-
spread violations in the aftermath of armed conflict. The Statement of the Inter-American
Commission on Human Rights on the Application and Scope of the Justice and Peace Law
in Colombia, August 2006, and its Report on the Implementation of the Justice and Peace
Law283 reviews the jurisprudence of the inter-American system holding that victims of
serious human rights violations, including violations committed during armed conflict,

281
  D. Summerfield, Addressing Human Response to War and Atrocity: Major Themes for Health Workers
(London, 1993).
282
  Victims of Crimes: Working Paper prepared by the Secretariat, 7th United Nations Congress on
the Prevention of Crime and the Treatment of Offenders, A/CONF.121/6 at 39 (1985). See also, United
Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 13,
G.A. Res. 40/34, 29 Nov. 1985, Annex.
283
 IACHR. Statement of the Inter-American Commission on Human Rights on the Application and
Scope of the Justice and Peace Law in Colombia, OEA/Ser. L/V/II 125 doc. 15, 1 August 2006, para. 48;
 Domestic Remedies 123

are entitled to individual compensation calculated to constitute restitution, compensa-

tion and rehabilitation, as well as to general measures of satisfaction and guarantees of
non-repetition.284 The measures taken together should tend to make the effects of the
violations committed disappear and will depend on the material and moral damage
caused. Reparations do not involve enrichment or impoverishment of the victim or his
or her heirs, nor can they be subject to the prior determination of criminal liability of
the perpetrators. The Inter-American Court of Human Rights has added that ‘in cases
of human rights violations the duty to provide reparations lies with the State, and con-
sequently while victims and their relatives must also have ample opportunities to seek
fair compensation under domestic law, this duty cannot rest solely on their initiative and
their private ability to provide evidence’.285
In response to a request from the Colombian government, the IACHR drafted
a set of guidelines that should be included in a comprehensive reparations policy.286
Although written for Colombia, the guidelines offer a restatement of the jurisprudence
on reparations for gross and systematic violations, especially in the context of an armed
conflict.
The IACHR recommended that the state provide low-cost, streamlined adminis-
trative avenues for victims to access economic reparations programs. This should be
without prejudice to any other non-pecuniary reparations, collective reparations, and
social programs and services that might be established for the population affected dur-
ing the conflict.287 Victims should be able to choose the avenue that they consider best
to ensure, in the end, that they receive reparations. An administrative reparations pro-
gram should reflect the outcome of an open and transparent participatory process,288
designed to lend legitimacy to the policy and ensure its continuity, irreversibility and
institutionalization.
Administrative avenues should not exclude recourse to the courts; instead, the admin-
istrative process should complement judicial proceedings for reparations. An adminis-
trative program should be understood as a consequence of liability or legal obligation

IACHR. Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of
the AUC and First Judicial Proceedings. OEA/Ser. L/V/II 129 doc. 6, 2 October 2007, para. 97.
284
  Ibid, citing I/A Court H.R. Case of Mack Chang, Judgment of 25 November 2003, paragraphs
236–237; Case of the Caracazo, Reparations (Article 63(1) American Convention on Human Rights),
Judgment of 29 August 2002, Series C No. 95, paras. 77–78; Blake Case, Reparations (Article 63(1)
American Convention on Human Rights), Judgment of 22 January 1999, Series C No. 48, paras.
31–32; Suárez Rosero Case, Reparations (Article 63(1) American Convention on Human Rights),
Judgment of 20 January 1999, Series C No. 44, para. 41; Castillo Páez Case, Reparations (Article 63(1)
American Convention on Human Rights), Judgment of 27 November 1998, Series C No. 43, para. 53.
285
  See Inter-American Court of Human Rights, Case of the La Rochela Massacre (Judgment on the
Merits and Reparations) (11 May 2007) Series C No. 163, para. 220.
286
  The Commission expressly based its Guidelines on the UN’s 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, Resolution 60/147, approved by the UN General
Assembly 16 December 2005, E/CN.4/Sub.2/1996/17.
287
 IACHR. Report on the Implementation of the Justice and Peace Law:  Initial Stages in the
Demobilization of the AUC and First Judicial Proceedings, OEA/Ser. L/V/II 129 doc. 6, 2 October 2007,
para. 99. Special social benefits may be given as reparations, such as the reparations pensions given in
Chile, educational benefits for children of the disappeared, health services through the Reparations
Programs and full health and mental health care through incorporation into PRAIS and human rights
programs. ICTJ. The Handbook of Reparations. The Reparations Policy for Human Rights Violations
in Chile by Elizabeth Lira, Chapter II, 2006, pp. 60–64.
288
 IACHR, Violence and Discrimination against Women during the Armed Conflict in Colombia,
OEA/Ser.L/V/II. Doc. 67, 18 October 2006, recommendation 63.
124 The Institutional Framework

and not as an ex gratia or humanitarian payment; given its foundation in state respon-
sibility, an administrative reparations proceeding ought not to preclude a contentious
legal action for accountability.
As with judicial remedies, all procedures designed as part of an administrative repara-
tions program, must be respectful of due process rights and guarantees, as set forth in
Articles 8 and 25 of the American Convention.289 The requisite elements include: the
guarantee of a hearing; the right to legal representation; prior notification of charges;
the right to a reasoned judgment; the right to public proceedings; the right to a decision
within a reasonable time period and the right to judicial review of the administrative
decisions.290 The proceedings must be accessible, flexible, transparent and public, except
in the case of information that could put the victims at risk. The state should disseminate
information about the program widely.
Given the nature of the violations for which reparations are sought, the evidentiary
requirements in administrative programs should be liberal, perhaps allowing circum-
stantial evidence to be introduced, together with the testimony of the victims and their
next of kin, and details about the social context and patterns of violations found in other
cases before national and international tribunals.
Administrative reparations programs should provide specific mechanisms
designed to redress fully the acts of violence and discrimination that women have
experienced,291 especially in the context of armed conflict where they are dispropor-
tionately affected. In addition, administrative reparations programs should factor
in reparative criteria for victims displaced as a result of the violence perpetrated by
armed groups.292 In this regard, the Inter-American Court of Human Rights has
established that the vulnerability of displaced persons may oblige states to grant them
preferential treatment and take active measures to reverse the harmful consequences
of their status.293
Examples of administrative programs in the aftermath of gross and systematic viola-
tions can be found in all regions of the world294 where the numbers of victims range
into the tens of thousands.295 Reparations vary and include pensions (Argentina, Chile,
Albania), non-monetary forms of reparation, such as exemption from military service

289
  See IACHR, Report on Access to Justice as a Guarantee of Economic, Social, and Cultural Rights.
A Review of the Standards Adopted by the Inter-American System of Human Rights. OEA/Ser.L/V/II.129.
Doc. 4, 7 September 2007, para. 104.
290
 IACHR, Report on Access to Justice as a Guarantee of Economic, Social, and Cultural Rights. A Review
of the Standards Adopted by the Inter-American System of Human Rights. OEA/Ser.L/V/II.129. Doc. 4,
7 September 2007, pp. 35–45.
291
  Even if violations are not widespread, the Convention of Belém do Pará urges states parties to
establish the judicial and administrative mechanisms necessary to ensure that women victims of violence
have effective access to restitution, reparation of the harm done or other just and effective means of com-
pensation. Inter-American Convention on the Prevention, Punishment and Eradication of Violence
against Women (Convention of Belém do Pará) Art. 7. See also United Nations Security Council reso-
lution 1325, S/RES/1325/2000; IACHR, ‘Violence and Discrimination against Women during the
Armed Conflict in Colombia’, OEA/Ser.L/V/II. Doc. 67, 18 October 2006, para. 233.
292
  Based on Principle 29 of the United Nations’ Guiding Principles on International Displacements,
dated 11 February 1998. E/CN.4/1998/53/Add.2.
293
  I/A Court H.R. Case of the Ituango Massacres (Preliminary Objection, Merits, Reparations and
Costs) (2006) 148 Inter-Am.Ct.H.R. (ser. C), para. 210.
294
  See examples of Argentina, Chile, Hungary, the Czech Republic, Sri Lanka and others in the
second edition of this book, 412–422.
295
  In Argentina, estimates of the number of victims of the so-called ‘Dirty War’ range from 9000
(official) to 30,000 (NGOs). See Alison Brysk, ‘The Politics of Measurement: The Contested Count of
the Disappeared in Argentina’, (1993) 16 Hum. Rts Q. 676.
 Domestic Remedies 125

(Argentina, Chile) or educational benefits (Chile296), compensation (Argentina,297

Czech Republic,298 Chile, Hungary, Albania,299 Rwanda,300 Uganda301), rehabilitation
(Czech Republic,302 Chile, Hungary303), restitution of property (Uganda304) and access
to secret archives about violations (Czech Republic305). Without acknowledgement of
the truth and acceptance of state responsibility, many victims have been unwilling to
accept financial compensation.306
The main issue that arises with regard to administrative programs is individualizing
the violation and the resulting harm. Some argue that it is not possible to devise a set
of objective criteria which will allow for abuse to be differentiated according to severity,
because the response to different forms and intensities of abuse is so subjective, conclud-
ing that for this reason each victim should receive the same award of reparation.307 But to
treat all victims the same seems unjust, and it is clearly possible to distinguish long-term
disability resulting from severe torture from less consequential violations.

296
  The Chilean Truth Commission recommended several forms of redress: symbolic reparation to
vindicate the victims; legal and administrative measures to resolve issues arising from death (inheritance,
family status, situation of minors); and compensation, including social benefits, health care, and educa-
tion. The report also put forward specific recommendations to guard against human rights violations in
the country and consolidate a human rights culture. Law 19.123 of 31 Jan. 1992, Diario Oficial, 8 Feb.
1992 created the Chilean National Corporation for Reparation and Reconciliation. Its role was to coor-
dinate, implement and promote the actions necessary to comply with the recommendations contained
in the report of the National Commission.
297
  Beginning in 1991, the Argentine government paid reparations in the form of bonds worth
$220,000–256,000 for each disappeared person. When an economic crisis erupted in Dec. 2001, the
government decided to suspend payments of interest and principal on the bonds. Some recipients were
pressured to accept loans with lower values. Those who did not swap bonds saw them depreciate radi-
cally in value due to the depreciation of the Argentine peso. As the economic crisis deepened, the govern-
ment decided to suspend interest and principal payments on its debt, including the reparations bonds.
See C.M. Wilson, ‘Argentina’s Reparation Bonds: An Analysis of Continuing Obligations’, (2004) 28
Fordham Int’l L. J. 786.
298
  Act No. 198/1993 SB, on the Illegitimacy of the Communist Regime, provided financial com-
pensation for each month of imprisonment. Former political prisoners were also given free public trans-
port, subsidies, special medical treatment, and some modest spa subsidies.
299
  Law on Former Victims of Persecution, Law No. 7748 (29 July 1993), reprinted in Neil Kritz
(ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (1995) Vol. III: Laws,
Rulings, and Reports at 661.
300
  The Rwandan legislature addressed the issue of compensation in the Organic Law of 30 August
1996 on the Organization of Prosecution for Offenses Constituting the Crime of Genocide or Crimes
against Humanity, committed between 1 October 1990 and 31 December 1994. It includes specific
clauses concerning the creation of a Compensation Fund.
301
  President’s War Veterans, Widows and Orphans Charity Fund Act (No. 2 of 1982).
302
  Act on Judicial Rehabilitation, Act No. 199/1990 Sb., secs 1-6, approved 23 April 1990, served to
repeal judicial decisions and reopen cases concerning over 250,000 people. The law also cancelled admin-
istrative decisions that expelled students and dismissed employees for political reasons. Another law,
the Act on Extra-Judicial Rehabilitation, Act No. 89/1991 Sb., concerned the restitution of confiscated
properties in the possession of the state, municipalities and cooperatives, to their original owners or heirs.
303
  Hungary, Act XI of 19 Feb. 1992 declared null and void political offences and the sentences
imposed for them as well as instituting a compensation scheme for previously expropriated or con-
fiscated property. In Somers v. Hungary, the United Nations Human Rights Committee found that
the Hungarian compensation scheme did not discriminate in violation of Article 26 of the Covenant
on Civil and Political Rights. Views of the Human Rights Committee, 23 July 1996, Comm. No.
566/1993, reprinted in (1996) 17 Hum. Rts. L.J. 412.
304
  Expropriated Properties Act (No. 9 of 1982).
305
  Act on the Access to Files Created through the Activities of the State Security, Act No. 140/1996 Sb.
306
 Margarita K.  O’Donnell, ‘New Dirty War Judgments in Argentina:  National Courts and
Domestic Prosecutions of International Human Rights Violations’, (2009) 84 NYU L.  Rev. 333;
Terence Roehrig, ‘Executive Leadership and the Continuing Quest for Justice in Argentina’, 31 Hum.
Rts Q. 721–747 (2009); Carlos Santiago Nino, Radical Evil on Trial (New Haven, 1996).
307
 Ibid.
126 The Institutional Framework

4.3.2╇Judicial remedies
Even for gross and systematic violations, judicial remedies should continue to be availa-
ble, although often with modified procedures such as class actions, sampling, and special
masters. Victims may be able to initiate civil actions against an individual perpetrator,
as in the cases brought against former Philippine head of state, Ferdinand Marcos, and
others filed against companies complicit in human rights violations. In other instances,
peace agreements concluding recent armed conflict have included provisions foreseeing
mechanisms of reparation for human rights violations committed prior to or during the
conflict,308 including in some instances through the creation of special tribunals. The
jurisdiction and reparations mandate of such tribunals vary widely.309

4.3.2.1╇Special tribunals
Cases of widespread violations are sometimes so pervasive and serious that it is deemed
necessary to create special judicial bodies to deal with them, often at least partially inter-
nationalized or ‘hybrid’ in nature. Such tribunals may be criminal courts designed to
prosecute offenders; others are civil in nature and aim at providing reparations for the
victims. Other innovative approaches include community-based proceedings. An exam-
ple of each is provided here.
In April 1975, the Khmer Rouge seized control of Cambodia and began a reign
of terror that killed approximately two million Cambodians—nearly a fifth of the
population310—before the regime ended in 1979. In 1997 Cambodia’s prime minis-
ter sent a letter to the UN requesting assistance in the formation of a tribunal to hold
accountable those responsible for the crimes.311 The resulting Agreement between the
UN and the government312 envisaged creation of a tribunal for the prosecution of
the leaders of the Khmer Rouge. The tribunal created, the Extraordinary Chambers of
the Courts of Cambodia (ECCC), is technically a domestic court313 established pursu-
ant to Cambodian law, and operating within the pre-existing Cambodian judicial frame-
work, yet it maintains an international component with half of the judges, staff, and

308
╇ Christine Bell, Peace Agreements and Human Rights (Oxford, 2000), 6.
309
╇ See Lisa Ann Tortell, Monetary Remedies For Breach Of Human Rights:  A  Comparative Study
(Oxford, 2006). Elke Schwager, ‘The Right to Compensation for Victims of an Armed Conflict’, (2005)
4 Chinese J. Int’l L. 417; James Sloan, ‘The Dayton Peace Agreement: Human Rights Guarantees and
Their Implementation’, (1996) 7 Eur. J. Int’l L. 207 (1996).
310
╇ Seeta Scully, ‘Judging the Successes and Failures of the Extraordinary Chambers of the Courts
of Cambodia’, (2011) 13 Asian-Pacific Law & Policy Journal, 300 (2011). See also Suzannah Linton,
‘Cambodia, East Timor, Sierra Leone: Experiments in International Justice’, (2001) 12 Crim. L. F. 185,
185 (2001); Steven D. Roper & Lilian A. Barria, ‘Providing Justice and Reconciliation: The Criminal
Tribunals for Sierra Leone and Cambodia’, (2005) Hum. Rts Rev. 5, 11; Helen Horsington, ‘The
Cambodian Khmer Rouge Tribunal: The Promise of a Hybrid Tribunal’, 5 Melbourne J. Int’l L. 462.
311
╇ UN Doc. A/51/90-S/1997/488 (24 June 1997), UN Doc. A/RES52/135 (27 Feb. 1998), para. 16.
312
╇ Agreement between the United Nations and the Royal Government of Cambodia concern-
ing the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic
Kampuchea, RGC-UN, 4 Oct. 2004 (ratified by the Cambodian National Assembly) [hereinafter
Agreement]; Khmer Rouge Trials, UNGA Res. 57/228 B, GAOR, 57th Sess., 85th Plen. Mtg, Agenda
Item 109(b), Annex, UN Doc. A/RES/57/228B, art. 1 (2003). See: Report of the Group of Experts
for Cambodia Established Pursuant to General Assembly Resolution, 52/135, UNGA 53/850, UNSC
1999/231, GAOR, 53rd Sess., at para. 60 (16 March 1999).
313
╇ Alex Bates, ‘Cambodia’s Extraordinary Chamber: Is it the Most Effective and Appropriate Means
of Addressing the Crimes of the Khmer Rouge?’, in R. Henham, P. Behrens (eds.)The Criminal Law of
Genocide: International, Comparative, and Contextual Aspects (Aldershot, 2007), 195,197.
 Domestic Remedies 127

counsel appointed by the UN.314 In addition, the agreement confirms that international
legal principles guide the jurisprudence of the Court.
The functioning of the ECCC rests on three basic pillars: the 2003 UN-Cambodian
agreement; the domestic ECCC Law of 2001 according to which the court will oper-
ate pursuant to ‘international standards of justice’,315 and internal rules adopted in
2007, establishing the procedural and evidentiary rules which govern the court and the
parties.316 The primary function of the ECCC is criminal prosecution and it was not
intended as a venue to provide direct relief for victims. The 2003 Agreement contained
no reference to reparations nor was there one in the domestic law on the establishment
of the ECCC. It was only in 2007 that the internal rules provided for victim participa-
tion and the right to claim ‘collective and moral’ reparations from the accused persons.
Victims may get an award of publication of the judgment at the convicted person’s
expense and can seek to fund any non-profit activity or service that is intended for the
benefit of victims; or other appropriate and comparable forms of reparation (Rule 23).
In the five prosecutions initiated, the ECCC has allowed victim participation as civil
parties, the first internationalized tribunal to do so in criminal proceedings.317 Victim
participation has been based on the French civil party system, but with more extensive
rights granted in the ECCC.318
In Case 001, ninety civil parties participated, represented by four legal teams who
submitted a joint submission on reparations in September 2009.319 The submission
asked for reparations to take into account past harms suffered, on-going harm suffered
and the cultural context in which the civil parties live; it contained a minimum list of
forms of reparations sought: compilation and dissemination of apologetic statements
made by the defendant throughout the trial; access to free medical care, including psy-
chological and physical care and transportation to medical facilities; funding of educa-
tional programs, both in schools and museums, that inform Cambodians of the crimes
that took place under the Khmer Rouge; erection of memorials and pagodas; inclusion
of the names of all civil parties in the case in the final judgment, including a specifica-
tion of their connection with the events. Civil party lawyers also argued that the Court’s

314
╇Bates, supra n. 313. After receiving Cambodia’s request to consider the creation of a tribunal, the
Secretary-General convened a three-member group of experts to determine whether there were grounds
for the creation of a tribunal. In March 1999, the experts concluded that while there were grounds to
support creation of a tribunal, there were serious concerns about the state of the Cambodian judiciary.
Group of Experts, supra n. 312 at 1 & 39, para. 131).
315
╇Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for
the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, Law NS/
RKM/0801/12, adopted in its final version by the National Assembly on 11 July 2001, approved by
the Senate on 23 July 2001, pronounced as being fully in accordance with the Constitution by the
Constitutional Council in its Decision 043/005/2001 KBTh ch on 7 August 2001, and signed by the
Cambodian King on 10 August 2001, available at http://csf.colorado.edu/bcas/main-cas/camb-law.htm/
[hereinafter ECCC Law].
316
╇ ECCC Internal Rules 24—29 govern participation by victims in the criminal proceedings.
317
╇ Press Release, ECCC, Statement from the Co-Investigating Judges: The Co-Investigating Judges
Release the First Decisions on Admissibility of Civil Parties in Case No. 002 1 (30 Aug. 2010), available
at http://www.eccc.gov.kh/sites/default/files/media/OCIJ-ECCC30Aug2010(Eng).pdf.
318
╇ The amended reparations mandate since 2010 set the policy, in particular in Rule 23 quinquies,
especially 3(b) and 12 bix of the Internal Rules. The rules specify ‘collective’ reparations only and no
specific individual reparations can be awarded to individual civil parties. The term is not defined and
the term could refer to vindication of a collective right or the fact that the subject of the reparations is a
specific group; or it could mean the types of measures or mode of distribution are collective (publication
of a judgment).
319
╇ Civil Parties joint submission on reparations 14 Sept. 2009, E159/3.
128 The Institutional Framework

mandate could include ordering the Victims Unit to set up a voluntary trust fund and
encouraging the government to take the lead in providing reparations to victims.
In its judgment in case 001,320 the trial court recognized only sixty-six civil parties
for purposes of reparations, because the others did not prove the existence of wrongdo-
ing attributable to the accused which had a direct causal connection to a demonstrable
injury personally suffered. The ECCC determined that reparations could be granted
only when the awards qualified as collective and moral reparations within the mean-
ing of Rule 23 and were sufficiently certain or ascertainable to give rise to an enforce-
able order against the accused. The Chamber acknowledged international jurisprudence
regarding victims’ rights, but found its own power to be ‘constrained by limitations’ of
its mandate and Internal Rules.
In particular, the Court found that its competence is more limited than that of regional
human rights courts, which are empowered to adjudicate questions of state responsibil-
ity. The Chamber has no jurisdiction over Cambodian or other national authorities or
international bodies. At most, the Chamber can merely encourage national authorities,
the international community and other potential donors to show solidarity with the
victims by providing financial and other forms of support that contribute to their reha-
bilitation, reintegration and restoration of dignity.321 Further the Chamber found that
it was ‘unable to issue orders where the object of the claim is uncertain or unascertain-
able, and which are incapable of enforcement. Accordingly, a prerequisite to the grant
of an award is the clear specification of the nature of the relief sought, its link to the
harm caused by the Accused that it seeks to remedy, and the quantum of the indemnity
or amount of reparation sought from the Accused to give effect to it. Placing the bur-
den on the Chamber to substitute its own decision in these areas is inconsistent with a
mechanism that is claimant-driven, and is also irreconcilable with the need for a fair and
expeditious trial . . . ’322 In the end, the ECCC only granted the request to include in the
judgment the names of civil parties and their relatives who died at the specific facility
where the defendant acted, and to compile and publish all statements of apology by the
defendant. The victims expressed doubt about the sincerity of the apologies made, seeing
them as his way to obtain mitigation of punishment from the trial chamber. In addition,
the victims objected to any consideration of such apology as sufficient moral reparations
for their sufferings.323
Following case 001, the judges in 2010 amended the Internal Rules in relation to rep-
arations. Its new victim participation scheme created the position of Lead Co-Lawyers
who would ‘bear ultimate responsibility for the overall advocacy, strategy and in-court
presentation of the interests of the consolidated group of Civil Parties at the trial stage
and beyond’. They would also make a single claim for collective and moral reparations.
The mandate of the Victims Support section was expanded to implement ‘non-judicial
measures’ outside of formalized court proceedings. The measures could include services
and more victims than those admitted as civil parties. Measures could be developed in
collaboration with governmental and non-governmental agencies.
The ECCC explained that its motivation for the amended provisions on repara-
tions came from having found that where convicted persons are indigent, reparations
awards ‘are unlikely to yield significant tangible results for Civil Parties’.324 Moreover,

320
  Judgment in Case 001, 26 July 2010 (Chapter 4: civil party reparations, para. 635ff).
321
  Ibid, para. 663. 322
  Ibid, para. 665.
323
  Press release issued by the Victims’ Association of Kampuchea Democratic (Ksaem Ksan) express-
ing ‘sadness with the so-called collective and moral reparation awarded by the ECCC’.
324
  ECCC Press Release, Eighth ECCC Plenary Session Concludes, 17 Sept. 2010.
 Domestic Remedies 129

the previous process required meeting stringent admissibility and pleading require-
ments that had proved difficult to satisfy. The amendments allowed Lead Co-Lawyers to
request the Trial Chamber to identify specific reparations measures, designed or identi-
fied in coordination with the Victims Support Section, which have secured sufficient
external funding for implementation.
Following these amendments, in Case 002 the Court reconsidered its initial view
of what constituted injury for the purposes of allowing the participation of the 3988
applications received from those who were seeking admission as civil parties. In a deci-
sion of 24 June 2011, the Court held that it was necessary to take into account the men-
tal suffering of many who survived the Khmer Rouge regime: ‘The Pre-Trial Chamber
also notes that the very nature of the societal and cultural context at the time when the
alleged crimes occurred requires another and wider consideration of the matter of vic-
timization. This is particularly so in respect of the alleged involvement of the Accused
in implementing policies that affected whole groups and communities, even the whole
Cambodian society’.325 Applicants alleging psychological injury but without close rela-
tionship to a direct victim, could benefit, where appropriate, from a presumption of
collective injury deriving from the very nature of crimes like genocide or crimes against
humanity directed against groups or the population. As long as a civil party applicant
submitted that he/she was a member of the same targeted group or community, psycho-
logical harm suffered by the indirect victim would be deemed to arise out of the harm
suffered by the direct victim.326
One extensive study of civil party applicants in case 001 reported that nearly half of
the sample indicated that ‘the trial had a positive impact on their readiness to reconcile’327
and 92.1 per cent of respondents indicated that they appreciated the Khmer Rouge
Tribunal.328 Thus, despite reports that the ECCC was hampered by political interfer-
ence that affected its independence, the tribunal helped create a common history of the
crimes committed and helped reduce impunity and strengthen Cambodia’s judiciary.
In Europe, the Dayton Accords that followed the conflicts in the former Yugoslavia
partly reflected the consensus that human rights issues had to be emphasized in the
rebuilding process.329 Two of the Annexes to the General Framework Agreement explic-
itly address human rights330: Annex 4 on the Constitution; and Annex 6, the Agreement
on Human Rights. The Human Rights Chamber for Bosnia and Herzegovina (BH
Chamber)331 was thereafter created to consider alleged or apparent human rights

325
  PTC, Decision on Appeals against Orders of the Co-Investigation Judges on the Admissibility of
Civil Party Applications, D404/2/4 of 24 June 2011, para. 86.
326
  Ibid, para. 93.
327
  Nadine Stammel et al., Berlin Center for the Treatment of Torture Victims, The Survivor’s Voices: Attitudes
on the ECCC, The Former Khmer Rouge and Experiences with Civil Party Participation (2010), 6 [originally
named ‘Behandlungszentrum fur Folteropfer e.V’. or ‘BZFO’, hereinafter BZFO Report].
328
  BZFO Report, supra n. 327 at 54.
329
  See Fred L. Morrison, The Constitution of Bosnia-Herzegovina, (1996) 13 Const. Comment, 145,
152; Bell, supra n. 308, 6.
330
  Other Annexes address particular human rights issues such as the right to participate in the demo-
cratic process (Annex 3) and the right to freedom of movement of refugees and displaced persons
(Annex 7).
331
  Established under Annex 6 to the Geneva Framework Agreement for Peace in Bosnia-Herzogovina
(Dayton Peace Agreement) in March 1996, 50th Sess., Agenda Item 28, UN Doc. S/1995/999 (14 Dec.
1995, reprinted in 35 ILM 89). Jurisprudence of the BH Tribunal is collected in Prisca van Althuis et al.,
(eds.) Jurisprudence of the Human Rights Chamber for BH, vol. 1, ‘The Cases’ 96/1-96/45 v (2004). See
also J. David Yeager, ‘The Human Rights chamber for Bosnia-Herzogovina: A Case Study in Transitional
Justice’, (2004) 14 Int’l Legal Persp. 679 (2004).
130 The Institutional Framework

violations of the European Convention on Human Rights and its protocols and alleged
or apparent discrimination concerning rights guaranteed by that convention and fifteen
others listed in the Appendix to Annex 6. Like the ECCC, the BH Chamber was a
hybrid of national and international judges, the latter appointed by the Committee of
Ministers of the Council of Europe.
The very purpose of the Human Rights Chamber was ‘to provide a legal structure
within which Bosnian citizens could seek legal redress for postwar governmental human
rights violations’.332 Priority was given to severe or systematic violations and those
founded on alleged discrimination. Articles VII–XI gave the Chamber the power to
determine appropriate remedies including monetary compensation.
The Chamber’s mandate to award remedies and compensate victims of human rights
violations exceeded the ability of the European Court of Human Rights to afford just
satisfaction under ECHR Article 41 and has been called ‘an important and innovative
feature of the Agreement’.333 The Chamber could order the breaching state party to
repeal laws found in violation of the applicable norms, reinstate wrongfully dismissed
employees,334 and return property to its rightful, pre-war owners.335 Article XI of Annex 6
expressly allowed the Chamber to indicate after finding a breach ‘what steps shall be
taken by the Party to remedy such breach, including orders to cease and desist, mon-
etary relief (including pecuniary and non-pecuniary injuries) and provisional measures’.
The European system reinforced this power; in Jelicic v. Bosnia and Herzegovina,336 the
European Court held that the judgments of the Chamber were final and non-appealable
and therefore, failure to enforce the remedies ordered constitutes a violation of ECHR
Article 6.
Like the pilot-case procedure of the European Court developed later, the BH
Chamber relied on ‘lead cases’ to adjudicate the claims of similarly situated applicants.
It indicated in these instances of systematic violations what measures the state should
take to address the problems. The Chamber’s mandate began from the entry into force
of the Dayton Accords, but like other human rights tribunals, it adopted the doctrine of
‘continuing violations’.337
In Hermas v. Federation Bosnia and Herzegovina, the Chamber described its remedial
aim as being to ‘remove, alleviate or prevent damage to the applicant, as well as pay-
ment of compensation’.338 The majority of cases it heard concerned property, including
occupancy rights, reinstatement of ownership of ‘abandoned’ property, discrimination
among pensioners, and access to foreign currency accounts,339 but other cases raised

332
  Laura Palmer & Cristina Posa, ‘The Best Laid Plans: Implementation of the Dayton Peace Accords
in the Courtroom and on the Ground’, (1999) 12 Harv. Hum. Rts J. 361, 362.
333
 1996–2001 Human Rights Chamber for Bosnia and Herzegovina Digest, Decisions on Admissibility
and Merits xiv (2003) [hereinafter Digest].
334
  See e.g., Zahirovic v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, CH/97/67
(8 July 1999).
335
  Blentic v. Republika Srpska, CH/97/17 (3 Dec. 1997).
336
  European Court of Human Rights, Jelicic v. Bosnia and Herzegovina (2006) App. No. 41183/02 (fail-
ure to comply with a Chamber judgment requiring the state to change discriminatory pension payments).
337
 In Matanovic v. Republika Srpska, Decision on Admissibility, CH/96/1, at 4 (11 July 1997), the
Chamber held that it was competent, ratione temporis, to consider a case of disappearance although it
occurred before the entry into force of the Agreement, because ‘in so far as it is claimed that the alleged
victims have continued to be arbitrarily detained and thus deprived of their liberty after 14 December
1995, the subject matter is compatible with the Agreement and comes within the competence of the
Chamber ratione temporis’.
338
  Hermas v. Federation Bosnia and Herzegovina, CH/96/45, para. 117 (1998).
339
  See, e.g. Poropat v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina CH/97/48
(9 June 2000) [Poropat I].
 Domestic Remedies 131

issues of the right to life, inhuman or degrading treatment, forced labour, and freedom
of religion. Discrimination was alleged in many cases and most applicants claimed that
no adequate and effective remedies existed, in order to argue for the admissibility of their
matter.
In lead property cases, the authorities usually admitted the deprivation, but attempted
to justify the takings as being in the public interest or damage resulting from the realities
of war.340 The Chamber rejected these defences, often ordering the property returned
and title recognized, or contracts of lease and purchase be upheld,341 if necessary through
legislative or administrative action.342 If the applicant was unable to use or enjoy the
property, the Chamber usually awarded compensation,343 but if the applicant was not
threatened with eviction or other loss, no monetary damages were awarded.344
Many cases concerned the Law on Abandoned Apartments,345 which labelled apart-
ments abandoned if the occupancy right-holder or members of the household did not
use it, even temporarily. Such property could then be allocated to others. The law was
later repealed and former occupants had up to fifteen months to file a claim for repos-
session.346 The Chamber received numerous cases where rightful owners were unable
to achieve reinstatement of their properties despite favourable decisions of the compe-
tent authorities.347 The Chamber generally ordered reinstatement according to a strict
timeline and several applicants received compensation for non-pecuniary harm due to
having suffered a ‘sense of injustice’.348 Personal property was not covered, because the
applicants were generally unable to prove when the loss occurred or if it was attributable
to the authorities.
In the Foreign Currency case, the Chamber ordered the respondent to amend its
currency legislation to ‘achieve a fair balance between the general interest and the pro-
tection of the property rights of the applicants as holders of old foreign currency savings
accounts’.349 The Chamber rejected applicants’ request to be compensated in full for
their savings, applying the ‘fair balance’ test. The Federation amended its law to comply
with the judgment, but its Constitutional Court ruled that provisions of the new law
were unconstitutional and the applicants remained blocked from their accounts. The
issue returned to the Chamber,350 which held that the various domestic laws and ruling
had led to a situation of legal uncertainty that had to be remedied. The Chamber thus
ordered the Federation to enact, within six months, ‘relevant and binding laws or regula-
tions that clearly address this problem in a manner compatible with Article 1 of Protocol

340
  Digest, supra n. 333, at xiii.
341
  See e.g. Medan v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, CH/96/8
(3 Nov. 1997).
342
 Ibid, 10.
343
 In Galic v.  Federation of Bosnia and Herzegovina, CH/97/40 (12 June 1998), the Chamber
awarded DEM 4,132 for past deprivation of the use of his apartment, and DEM 16.50 for each day
until he regained possession.
344
  Podvorac et al. v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina.
345
 See Juric v. Federation of Bosnia and Herzegovina, CH/98/394 (10 Dec. 1999).
346
 Ibid, 4.
347
  The applicants asserted that ‘the Federation authorities systemically fail to reinstate pre-war occu-
pancy right holders into their apartments’: Ibid, 6.
348
 In Bojkovski v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, CH/97/73
(6 April 2001), the Federation was ordered to pay the applicant KM 2000 under this heading, as well as
KM 100 for each month she remained unable to reside in her apartment. See also O.K.K. v. Republika
Srpska, CH/98/834, at 10 (9 March 2001).
349
  Poropat I, n. 339 para. 168.
350
  Todorovic et al. v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, CH/97/104
(11 Oct. 2002).
132 The Institutional Framework

No. 1 to the [European] Convention’.351 Going further, the Chamber suggested sev-
eral specific alternative measures ‘to be considered’ by the Federation in remedying the
breach.352
After another year passed without compliance, the applicants returned again to the
Chamber, which held it ‘appropriate to order further remedies in each of these cases’.353 It
thereby ordered the respondent parties to pay each applicant within one month 20,000
JM ‘or the full balance of his or her old foreign currency savings accounts, whichever is
less, the cost to be born equally between the respondent Parties.’354 There seems to be a
clear punitive element to the award, given the holding in the prior cases that the appli-
cants did not necessarily have a right to the full amount.
Disappearances led to relatively high compensation awards as well as orders to carry
out investigations and release of any person found in detention.355 The right to a proper
investigation was also affirmed in case of homicide.356 Employment cases involved rein-
statement and compensation.357 Compensation awards were relatively high where ethnic
discrimination was proved in the dismissal from employment.358 In other discrimina-
tion cases, the Court noted the severity of the conduct and determined that substantial
compensation was warranted.359
Unlike in the European Court, the conduct of applicants did not seem to bar com-
pensation. In Damjanovic v. Federation of Bosnia and Herzegovina,360 the applicant had
been convicted of abduction, two rapes and seven murders, for which he had been sen-
tenced to death. The Chamber agreed with the applicant that imposition of the death

351
  Ibid, para. 164.
352
  Ibid, para. 164. The suggested alternatives were: (1) Payment of old foreign currency savings, in
whole or in part, to depositors upon demand, if the respondent Party has the means; (2) creation of
public debt in the amount of old foreign currency savings not already spent in the privatization pro-
cess; (3) methods by which citizens may use their old foreign currency savings as the equivalent of cash
inside or outside the privatization process, such as for payment to public entities for goods and services
including, but not limited to, utility bills, property, transportation, food, health care, housing and other
personal expenses; or (4) tax relief or tax credits; or (5) enhanced pension rights (as are allowed other
categories of citizens); or (6) earmarking of proceeds from succession funds, enhanced tax collection
enforcement, international aid, or other income streams to be used exclusively for repayment of old
foreign currency savings holders.
353
  Poropat et al. v. Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, CH/97/48
(4 July 2003)[Poropat II], par. 44.
354
  Ibid, para. 59.
355
 In Palic, the Chamber ordered the Republika Srpska to pay the wife of the disappeared KM 15,000
to compensate for her mental suffering, and for the disappeared himself, KM 50,000 in non-pecuniary
damage to be held by her for her husband or his heirs. Palic v. Republika Srpska, CH99/3196, at 15 (1 Jan.
2001).
356
  E.M. and S.T. v. Federation of Bosnia and Herzegovina, CH/01/69 (2002) (affirming a procedural
right under the ECHR ‘to have a proper investigation and trial in regard to her brother’s death, a positive
obligation that arises from Article 2: ibid, 77).
357
  Malic v. Federation of Bosnia and Herzegovina, CH/97/35 (5 Dec. 1997) (friendly settlement).
The Chamber ordered reinstatement plus pecuniary and non-pecuniary damages in Zahirovic v. Bosnia
and Herzegovina and Federation of Bosnia and Herzegovina, CH/97/67 (8 July 1999), para. 154.
358
 In Rajic v. Federation of Bosnia and Herzegovina, the Chamber ordered the Federation to pay
the applicant 12,886 Convertible Marks by way of compensation for lost income and legal expenses.
CH97/50 (3 Apr. 2000), while the applicant in M.K. v. Federation of Bosnia and Herzegovina, CH/98/565
(22 Dec. 2003) received an award of 20,000 convertible marks for pecuniary and non-pecuniary dam-
ages for his discriminatory dismissal from employment.
359
 See: R.G. & Matkovic v. Federation of Bosnia and Herzegovina, CH/98/1027 and CH/99/1842
(8 Sept. 2000), involving shootings and arbitrary detentions, as well as beatings and racist comments.
The Chamber found the conduct to be ‘recreational and sadistic violence by persons acting with appar-
ent impunity’: ibid, para. 130. Because of the gravity of the violations, the Chamber found that it was
‘appropriate to award the applicants a substantial amount of compensation’: ibid.
360
  Damjanovic v. Federation of Bosnia and Herzegovina, CH/96/30 (8 Oct. 1997).
 Domestic Remedies 133

penalty would violate the Dayton Agreement and ordered that the sentence not be
implemented. The mental suffering caused by fear of the death penalty being carried
out was deemed an appropriate basis for awarding damages on an equitable basis of
DEM 15,000.
In Hermas v. Federation of Bosnia and Herzegovina,361 the applicant requested a writ-
ten apology for the violations of Articles 3, 4 and 5 of the Convention of which he had
been a victim and a written certificate from the authorities of the Federation that he
was not under investigation or suspicion regarding his role in the war in Bosnia and
Herzegovina, as well as compensation. The Chamber found that the decision served as a
sufficient remedy in lieu of an apology. Part of the compensation amounts sought were
deemed punitive and the Chamber commented that it considered an award of puni-
tive damages ‘inappropriate;’ it did not say that it lacked the jurisdiction to make such
an award.
One of the most sweeping awards came in the case of the Islamic Community in Bosnia
and Herzegovina v. Republika Srpska362 that dealt with the destruction of fifteen mosques
in Banja Luka in 1993. After the entry into force of the Dayton Accords, the munici-
pal authorities allegedly removed the remains of the mosques and desecrated adjoining
graveyards. The applicant requested that the respondent be ordered to reconstruct the
mosques and refrain from taking any action which would even temporarily permit the
construction of buildings or objects, other than mosques, on the sites, and to refrain
from destroying or removing any immovable object remaining on the sites or from
changing the purpose of the sites. The applicant also sought an order for the respondent
to provide adequate places for worship in Banja Luka until the mosques had been rebuilt
and to enable the Muslims in Banja Luka to enjoy all civil rights and freedoms equally
with all other citizens.363
On the merits, the Chamber found wide-scale discrimination directed against the
Muslim population of Banja Luka and found it appropriate to order the respondent to
take immediate steps to allow the applicant to erect enclosures around the sites of the
fifteen destroyed mosques and to maintain those enclosures. It was further ordered to
take all necessary action to refrain from the construction of buildings or objects of any
nature on the sites indicated in the application, and not to permit any such construction
by any other institution or person, whether public or private, apart from the applicant
and persons acting under its authority. The order extended to refraining from destroying
or removing any object remaining on the sites, and not to permit any such destruction
or removal by any other institution or person, whether public or private, apart from the
applicant and persons acting under its authority. The Chamber found it also appropriate
to order the respondent to swiftly grant the applicant the necessary permits for reconstruc-
tion of seven of the destroyed mosques at the locations where they previously existed.364
Despite its successes and the generally welcome exercise of its remedial powers, the
Chamber was not without critical review. A Council of Europe report on the Chamber’s
decisions on reparations found that many persons did not receive reparations and those
afforded seemed to be ‘significantly more favourable to war veterans than to civilian
victims.’365

361
  Hermas v. Federation of Bosnia and Herzegovina, CH96/45 (18 Feb. 1998).
362
  Islamic Community in Bosnia and Herzegovina v. Republika Srpska, CH/96/29 (1 June 1999)
363
  Ibid, para. 210. 364
  Ibid, paras. 211–213.
365
 Post-war Justice and Durable Peace in the Former Yugoslavia (Issue Paper by the Council
of Europe Commissioner for Human Rights)(Feb. 2012) at 26, available at http://www.coe.int/t/
commissioner/source/prems/Prems14712_GBR_1700_PostwarJustice.pdf. The report also noted the
problems of the Roma as ‘the most vulnerable minority group’ subjected to deep-rooted prejudice: ibid, 20.
134 The Institutional Framework

The third example is that of Rwanda. Following the Rwandan genocide and pursuant
to a 2001 domestic law,366 Gacaca courts, inspired by traditional grassroots African dis-
pute settlement mechanisms367 were created in local communities. Each of some 11,000
communities were to elect lay judges, and a general assembly representing the popula-
tion, to preside over all the crimes that had occurred in their community. Rwandan
officials argued that Gacaca ‘would reveal what had happened in each community, allow
victims to be heard, help reintegrate perpetrators into their communities, and form the
basis for a reparation scheme.’368 Although some commentators claim that traditional
Gacaca focused on redress of damages, not sanctions,369 solutions were not necessarily
based on customary law or equity, but on efforts to restore peaceful relations by reinte-
grating the perpetrator within the community, even if the results were seen by some as
unfair.370
Gacaca operated mainly from 2002 to 2008 and did so on the basis of confession,
a guilty plea, repentance and apologies. The perpetrators could achieve a considerable
reduction in the sentence if they (1) gave a detailed description of the confessed offence,
specified how he or she carried it out and where, when he or she committed it, identified
witnesses to the facts, persons victimized and where he or she disposed of the bodies,
indicated the damage caused; (2) revealed the co-authors, accomplices and any other
information useful to the exercise of the public action; (3) apologised for the offences
that he or she has committed.371 The system has been criticized because the confession
conferred a major benefit on the perpetrator and often became a ‘mechanical recital of
the facts followed by a mechanical statement of repentance’,372 or worse, produced col-
lusion and even false confessions.
The looting that accompanied the genocide made receiving restitution or compen-
sation the most important part of the process for many survivors. Article 95(1) of the
Gacaca Law called for reparation for stolen or damaged property in the form of restitu-
tion whenever possible; otherwise the perpetrator should pay compensation or perform
work equivalent to the value of the loss. It was also possible to seize the offender’s prop-
erty to execute the judgment, including from successors if the offender was deceased.
Very few genocide survivors in Rwanda received any compensation for their suffer-
ings and the compensation that was received was ‘meagre to say the least.’373 Nonetheless,
several efforts were made to afford financial assistance and lump sum compensation.
Under Organic Law No. 08/96, the Rwandan courts in the genocide criminal trials
were given the competence to adjudicate the victim’s reparations claims. Civil liability
was imposed on the perpetrator and the Rwandan state jointly for all damages suffered

366
  Organic Law No. 40/2000 of 26 January 2001 setting up ‘gacaca jurisdictions’ and organizing
prosecutions for offences constituting the crime of genocide or crimes against humanity committed
between 1 October 1990 and 31 December 1994, OGRR no. 6 of 15 March 2001, amended by
Organic Law No. 33/2001 of 22 June 2001. Initially, the law envisaged prosecutions for all perpetra-
tors, as set forth in Loi organique No. 08/96 du 30 août 1996 sur l’organisation des poursuites des
infractions constitutives du crime de génocide ou de crimes contre l’humanité, commises á partir du
1er octobre 1990, J.O. République Rwandaise No. 17 du 1er Sept 1996. The sheer number of perpe-
trators convinced the government that this approach would not work. For a comprehensive and critical
look at the process, see: Paul Christoph Bornkamm, Rwanda’s Gacaca Courts: Between Retribution and
Reparation (2012).
367
  It is claimed that such a procedure has existed since the thirteenth century. See: I. Plumat, ‘Les
jurisdiction gacaca’, in RCN Bulletin no. special (2004) 6.
368
 Bornkamm supra n.  366, 2.  See also  J.A.D. Alie, ‘Reconciliation and Traditional Justice’ in
L. Huyse and M. Salter (eds.) Traditional Justice and Reconciliation after Violent Conflict (2008) 143.
369
  M. Goldstin Bolocan, ‘Rwandan Gacaca’, Journal of Dispute Resolution (2004) 377.
370
 Bornkamm, supra n. 366, 33. 371
  Art. 54(3) of the Gacaca Law.
372
 Bornkamm supra n. 366, 69. 373
 Ibid, 131.
 Domestic Remedies 135

during the genocide. The law provided for the creation of a compensation fund. In the
Affaire Euphrasie Kamatamu et consorts,374 the defendants and the Rwandan state were
ordered to pay approximately $US 9 million and $2.1 million respectively. After the
government showed reluctance to comply, individual judicial awards became rare and
the policy shifted to an administrative procedure and a fund.
Under the new plan, compensation was to be assessed according to a scale provided
in the projected law on the compensation fund,375 with all relevant findings transmitted
by the Gacaca tribunals to the fund administrator. In April 2009, the law on the Fund
for the Support and Assistance to the Survivors of the Genocide entered into force.376 It
provided for an increased budget and the ability to sue the main perpetrators for dam-
ages, but covered only survivors in need, especially orphans, widows, and handicapped
persons. The approach seems more one of providing social security than redress, being
based on need and not on injury. The law also required implementing measures that were
deferred. In sum, the failure to prevent genocide has been matched by a failure to redress
the sufferings of the survivors.

4.3.2.2╇Mass claims procedures

Mass claims procedures exist in domestic jurisdictions like Argentina, South Africa, and
the United States, and in some international—usually ad hoc—tribunals such as the
UN Compensation Commission, the Iran-US tribunal, and various Holocaust claims
procedures.377 The internal procedures are often set up pursuant to recommendations of
truth commissions and other processes of transitional justice. This is not always the case,
however, because some large human rights claims have been brought and succeeded in
United States courts under its federal Alien Tort Statute (ATS), 28 USC §1350.378 These
cases have been litigated with increasing frequency since the 1970s and have sometimes
involved thousands of victims.379
In both international and domestic mass claims procedures, the aim is to provide
compensation or restitution with speed and efficiency, although some scholars of transi-
tional justice argue that domestic procedures often are not primarily about redress, but
instead are linked to a broader strategy of national reconciliation and consolidation of
democratic institutions. If so, this differs from judicial procedures like the ATS, but all
mass claims may face resource constraints in providing the individualized full redress
that human rights law indicates for victims.

374
╇ Judgment of 17 July 1998. 375
╇ Art. 67(9) of Organic Law No. 40/2000.
376
╇ Law No. 69,2008 of 31 December 2008 relating to the establishment of the Fund for the Support
and Assistance to the Survivors of the Tutsi Genocide and other crimes against humanity committed
between 1 October 1990 and 31 December 1994, and determining its organization, competence and
functioning, OGRR no. special of 15 April 2009.
377
╇See, generally:  John Crook, Redressing Injustices through Mass Claims Processes (PCA 2006);
Howard M. Holtzmann and Edda Kristjiansdottir (eds.), International Mass Claims Processes: Legal and
Practical Perspectives (Oxford, 2007).
378
╇ The ATS is a grant of jurisdiction to federal district courts over suits brought by aliens for a tort
committed in violation of a treaty or ‘the law of nations’. The Torture Victim Protection Act (TCPA)
expands the ATS to the extent of allowing US nationals to sue for acts of torture committed abroad.
These grants of jurisdiction must be read alongside the US Foreign Sovereign Immunities Act (FSIA).
The United States Supreme Court (USSC) has held that the FSIA governs all suits against foreign states,
with the result that human rights victims generally may bring actions only against individuals or legal
persons who are present within the USA.
379
╇ See generally, B. Stephens and M. Ratner, International Human Rights Litigation in U.S. Courts
(New York, 1996).
136 The Institutional Framework

In the USA, the Marcos litigation exemplifies the problems associated with efforts
to afford all victims a remedy. In the class action, the large numbers of victims neces-
sitated innovative procedures that limited the individualized decision-making, taking
of evidence, and procedural fairness to both sides that would normally be required in
litigation. Rather than hold separate hearings on each of the 10,059 claims, the United
States District Court allowed the use of a statistical sample of the claims in determining
compensatory damages. After an initial review, 518 claims were ruled facially invalid,
leaving a pool of 9,541 of which 137 were randomly selected by computer. The num-
ber chosen was based on the testimony of a statistical expert who stated that a random
sample of 137 claims would achieve a 95 per cent statistical probability that the results
of the examined claims would be applicable to the totality of claims filed.380 The 137
in the random sample, which included torture victims, families of those summarily
executed, and those who disappeared, were deposed and the expert reviewed the deposi-
tions to determine the claims. Five per cent of the claims were determined to be invalid.
Based on the sample, the expert recommended that the sixty-four torture claimants get
US$3,310,000, an average of US$52,719 per valid claim. For summary execution the
recommendation was US$6,425,767 for fifty valid claims, an average of US$128,515
per valid claim. For the disappearances, he recommended US$1,833,515, an average of
US$107,853 per valid claim. The court applied the 5 per cent invalidity rate found in
the random samples in making its awards to the entire class of 10,059 remaining claims.
In calculating the amounts due for torture, the expert ranked the claims on a scale
from 1 to 5, with 5 representing the worst abuses and suffering. Consideration was given
to: (1) physical torture, including what methods were used and/or abuses were suffered;
(2) mental abuse, including fright and anguish; (3) amount of time the torture lasted;
(4) length of detention, if any; (5) physical and/or mental injuries; (6) victim’s age; and
(7) actual losses, including medical bills. ‘Although each claim of torture was unique’
the expert determined ‘that there were sufficient similarities within a rating category
to recommend a standard damage amount to each victim within that grouping’. The
amount ranged from US$20,000 for category 1 to US$100,000 for category 5. For
summary executions and disappearances, the existence of torture prior to the death or
disappearance was weighed in the damages. Loss of earnings was also factored in, using
the formula of ⅔ × (80 − age of death) × annual income, a formula adopted by the
Philippine Supreme Court. A cap of US$120,000 was placed on lost earnings. Where
there was no evidence of earnings, the average for the occupation was utilized. The jury
reviewed all the claims, including the testimony from the 137 random sample claimants.
For the most part, the jury followed the recommendations of the expert. It awarded more
than recommended to six torture claimants and less than recommended to five torture
claimants.
On appeal, the Estate of Marcos challenged the methodology used to award the
compensatory damages because it had not been used before and it lumped all the claims
together. The court agreed that some individualization was lost; ‘On the other hand,
the time and judicial resources required to try the nearly 10,000 claims in this case
would alone make resolution of [the] claims impossible’.381 Thus, ‘while the district
court’s methodology in determining valid claims is unorthodox, it can be justified by the
extraordinarily unusual nature of this case’.382 The Marcos cases demonstrate the unlike-
lihood of full compensation even where the desire to provide redress is present. Given the
limited resources available, the courts and states have sought a fair way of pro-rating the

380
  In re Estate of Marcos, 103 F.3d 767, 782.     Ibid, 786.   382 Ibid.
381
 Domestic Remedies 137

claims based on the severity of injury. Such an approach maximizes the recovery of all of
the victims who came forward, but should be coupled with other remedies, from pros-
ecution to rehabilitation. In the absence of full compensation, alternative relief becomes
even more important.
Judgments in ATS cases have ranged up to billions of dollars, although courts are split
on the issue of the applicable law of damages in such cases. In Trajano v. Marcos, where
the torture and execution of the deceased were held to be a gross violation of the law of
nations, the district court explicitly grounded its award of damages upon various articles
of the Philippine Civil Code.383 In Martinez-Baca v. Suarez-Mason,384 the district court
seemed to follow Filartiga and to base damages on international law:
International law principles, as incorporated in United States common law, provide the proper
rules for calculating the damages . . . International law requires that an injured plaintiff must be
compensated for all actual losses. Federal common law remedies likewise provide compensation
for losses resulting from a defendant’s wrongdoing. Accordingly, plaintiff should be awarded all
pecuniary and non-pecuniary damages, including pain and suffering and loss of employment,
resulting from his torture and prolonged arbitrary detention. An award of punitive damages is
also proper in order to punish and deter such acts and thereby further international human rights.
Humans must be deterred from inflicting such cruel punishment on fellow humans.385
In its conclusions of law the court found that both compensatory and punitive dam-
ages were ‘proper under the law of nations, the statutory and common law of the United
States and the common law of California’.386 Nearly all Alien Tort Claim actions decided
to date have involved issues of torture, summary execution, disappearance, or genocide.
Perhaps not surprisingly, the damage awards have been high and all have included puni-
tive damages, with totals ranging from $1,000,000387 to $41,000,000.388 Punitive dam-
ages of $5,000,000389 and $10,000,000 are frequent.390
In the first genocide case under the ATS, Mushikiwzabo v. Barayagwiza,391 five plain-
tiffs documented the massacre of their relatives in Rwanda. Three plaintiffs sued under
the ATS and two pursuant to the TVPA. The court held that the defendant, described as
one of the political leaders in Rwanda, was liable for inciting the massacres. The court said
that it had some difficulty placing a monetary value on the damages, because of the mag-
nitude of the suffering: ‘This Judge has seen no other case in which monetary damages
were so inadequate to compensate the plaintiffs for the injuries caused by a defendant.
One cannot place a dollar value on the lives lost as the result of the defendant’s actions

383
  Trajano v. Marcos, No. 86–0207, slip op. at 3 (D. Haw. 25 Mar. 1991).
384
  No. C-87-2057-SC, slip op. at 1 (N.D. Cal. 22 Apr. 1988).
385
  No. C-87-2057-SC, slip op. at 4 (N.D. Cal. 22 Apr. 1988). 386
 Ibid, 8.
387
  Forti v. Suarez-Mason, No. 87-2058-DLJ (N.D. Cal. 25 Apr. 1990) (arbitrary detentions and
abuse; another plaintiff who was tortured during arbitrary detention received $3 million in punitive
damages).
388
  Abebe-Jiri v. Negewo 72 F.3d 844 (11th Cir. 1996). Young women survivors of torture in Ethiopia
sued the torturer and were awarded compensatory and punitive damages of $41 million after a jury trial.
389
  Xuncax et al. v. Hector Gramajo; Ortiz v. Gramajo, 886 F. Supp. 162 (D. Ct Mass. 1995).
390
  Martinez-Baca v. Suarez-Mason, supra n. 384 (systematic arbitrary detention and torture); Quiros
de Rapaport v. Suarez-Mason, No. C87-2266 JPV (N.D. Cal. 11 Apr. 1989) torture, murder and disap-
pearance); Todd v. Panjaitan, No. CV-92-12255-PBS (D. Ct Mass. 26 Oct. 1994)(disappearance and
murder). In Mehinovic et al. v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. GA, 2002), an action against a for-
mer Bosnian Serb soldier alleging torture, cruel, inhuman or degrading treatment, arbitrary detention,
war crimes, crimes against humanity, genocide and municipal torts, the court found for the plaintiffs on
all allegations except genocide. Detailing the extreme suffering of the plaintiffs and the wanton acts of
the defendant, the court awarded each plaintiff US$10 million in pecuniary damages and US$25 mil-
lion in punitive damages.
391
  Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996).
138 The Institutional Framework

and the suffering inflicted on the innocent victims of his cruel campaign. Unfortunately,
however, a monetary judgment is all the court can award these plaintiffs’.392 Each plain-
tiff claimed $1.5 million for each relative killed, but the court found this excessive under
‘traditional principles for an award of pain and suffering’ because in almost all cases
the actual killing took place in a brief period of time. Therefore, the pain and suffering
award was calculated at $500,000 per relative. In addition, the court added an award
of punitive damages in the amount of $1,000,000 per relative victim. In total, the
court awarded Louise Mushikiwabo $35,204,577, Louis Rutare $10,736,227, Rangira
Beatrice Gallimore $16,746,291, Julie Mukandinda Mugemanshuro $20,215,869, and
Faustin Semuhungu $22,364,970.
In Tachiona v. Mugabe et al.,393 citizens of Zimbabwe filed an ATS and TVPA case
alleging torture, extrajudicial killing, loss of political rights, loss of property, system-
atic racial discrimination and destruction of business in violation of international
norms. Defendants were the ruling Zimbabwe African National Union-Patriotic Front
(ZANU-PF) political party and Robert Mugabe as its head. Claims against Mugabe as
president and against other government officials were dismissed on grounds of sovereign
or diplomatic immunity. Default judgment was entered and the case was referred to a
magistrate for consideration of damages. The Court adopted the magistrate’s recom-
mendation on damages under the TVPA, but conducted its own analysis to determine
the applicable substantive law on damages under the ATS.
In one of the longest and most carefully written opinions on reparations, the court
gave careful consideration to the rationale underlying a choice of law analysis concerning
damages. It questioned whether the analysis compels the application of a single juris-
diction’s law in its entirety or whether, as the plaintiffs argued, the court could identify
different sources and principles from which it could fashion the most appropriate rem-
edy given the circumstances of the case. The court noted that ordinarily a choice of law
assessment weighs the competing interests of the different jurisdictions and determines
on balance which jurisdiction has the most significant relationships with the parties and
events and thus the most extensive interests in the outcome of the litigation. This would
compel the entire body of local law be applied to the dispute, foreclosing the court from
picking among rules to tailor a specific remedy. The ‘significant quandary’ that this poses
for the ATS is that local law on remedies may be inadequate or may conflict with the
principles embodied in the ATS or with international norms. Thus, ‘circumstances may
arise, as in the instant case, in which rigid adherence to that local law may defeat the
purposes of the ATCA’.394
The court found that the United States had a significant interest in the adjudica-
tion of claims under the ATS alleging certain violations of international human rights
law, thereby advancing the realization of the values embodied in universally recognized
norms.395 It balanced this interest against the fact that all the plaintiffs and defendants,
actions and injuries were connected with Zimbabwe, giving that country the predomi-
nant interests, but also found that the governing law of Zimbabwe would not permit
recovery or would bar liability on some of the claims and thus would defeat the ATS.
Other constraints cautioned against strict adherence to municipal rules of the foreign
state in defining the rights and remedies under the ATS. The court noted, for example,
that the municipal laws in the case were largely enacted by the defendants themselves,
who were accused of egregious misconduct. The ‘concern lies in potential results that

392
  Mushikiwabo v. Barayagwiza, 1996 U.S. Dist. LEXIS 4409 (S.D.N.Y. 1996).
393
  Tachiona v. Mugabe et al., 216 F.Supp. 2d 262 (S.D.N.Y. 2002). 394
 Ibid, 407.
395
 Ibid, 408.
 Domestic Remedies 139

could frustrate efforts to fashion relief commensurate with the real repugnance of inter-
national wrongs and their profound effects, in other words, remedies that do not vindi-
cate and recompense the victims of state-sponsored genocide and murder as if they had
suffered nothing more than common law defamation and battery’.396 Reviewing each
claim under international law and the national laws of the USA and Zimbabwe, the
court fashioned the appropriate relief by comparing the three bodies of law. For extra-
judicial killings, it awarded each decedent’s estate $2,500,000 in compensatory dam-
ages, and $5,000,000 in punitive damages. For the two torture claims, the estates were
awarded $1,000,000 in compensatory damages and $5,000,000 in punitive damages.
The court had considerably more difficulty on the claims concerning loss of enjoyment
of political rights, but decided that these causes of action were properly stated, that the
violations were shown through a consistent pattern of acts of terror and violence, and
that two plaintiffs should be awarded $500,000 compensatory damages and $1,000,000
punitive damages, while the other two plaintiffs should receive double the amounts. In
the case of cruel, inhuman and degrading treatment, the court reviewed the facts and
distinction between this cause of action and torture:
By any measure of decency, the public dragging of a lifeless body, especially in front of the victim’s
own home, for close kin and neighbors to behold the gruesome spectacle, would rank as a degrada-
tion and mean affront to human dignity. By the same token, the relatives necessarily made to bear
witness to the torture and degradation of their kin, or the ransacking of their common property,
are technically not themselves victims of torture. Few would quarrel, however, that the offend-
ers’ lawlessness would cause these individuals themselves to suffer the severe emotional pain and
indignities associated with forms of cruelty and inhuman treatment. Thus, wherever the nuances
of conduct may blend at the frontiers that define the limits of cruel, inhuman or degrading treat-
ment, this Court has no hesitation finding that the wrongs committed by ZANU-PF in this case
fall well within the realm of the execrable—unlawful conduct that would be condemned and
rejected as contravening well-established and universally recognized norms of international law.397
On this claim, the court awarded four plaintiffs $1,000,000 in compensatory dam-
ages and $4,000,000 in punitive damages for three of them, $3,000,000 for the fourth.
Another two plaintiffs received $750,000 in compensatory damages and twice that in
punitive damages. The racial discrimination claim was also accepted and the two plain-
tiffs awarded $500,000 in compensatory damages and $1,000,000 in punitive damages.
Finally, the property claims were judged on the basis of proof of the property value with
no punitive damages awarded. In total, the court awarded over $20,000,000 in compen-
satory damages and a total of $51,000,000 in punitive damages.
It is worth noting that the large damage awards in the ATS cases have served primar-
ily to vindicate morally the victims and to deter violators from coming to or remaining
in the USA. Few, if any, victims have been able to execute the judgments rendered.398
Many of the defendants either have had no assets in the USA or were able to transfer
them out of the country during the pendency of the litigation. Assets in foreign coun-
tries have been difficult to locate. Nonetheless, the Alien Tort cases have had enormous
impact. First, there is no doubt that they have been significant victories for the plaintiffs,
allowing them to narrate the truth and have it confirmed, and in some cases to confront
their tormentors in open court. The suits have also provided accountability in regard
to violators who escaped any responsibility in their own states, serving notice that the
USA cannot be considered a haven for human rights violators. The cases also served to

 Ibid, 417.
396 397
  Tachiona v. Mugabe et al., 216 F.Supp. 2d 262 (S.D.N.Y. 2002), 438.
  Thus far, only $400 has been collected from Argentine General Suarez-Mason: B. Stephens and
398

M. Ratner, supra n. 379, 218.

140 The Institutional Framework

document abuses for possible further action, from deportation to criminal prosecution
in the state where the events occurred.

4.4 Conclusions
A credible and fair legal system should remedy every significant invasion of rights but
usually does not. The development of legal remedies should be governed by the desire
for consistent redress, but more often is determined by administrative feasibility, insti-
tutional functions and relationships, and, too often, by government’s desire not to be
held accountable. As United States President James Madison recognized ‘[i]‌n framing
a government which is to be administered by men over men, the great difficulty lies
in this: you must first enable the government to control the governed; and in the next
place oblige it to control itself. A dependence on the people is, no doubt, the primary
control on the government; but experience has taught mankind the necessity of auxiliary
precautions’.399 The forms and sources of official misconduct are many: lack of under-
standing, lack of capacity or capability, lack of resources, negligence, or intent to violate
the law. Each source may require a discrete response targeting the origin of the problem.
Society seeks to discourage official wrongdoing, in order to reduce the probability that
it will occur. Holding the government responsible may have such broad impact because
the government can employ the incentives, education, constraints, and other conditions
that influence officials’ behaviour.
As this chapter has demonstrated, national law generally allows courts to award nomi-
nal or compensatory damages and often permits imposition of exemplary, aggravated, or
punitive damages. Nominal damages are awarded when the court finds that no harm has
been done but legal rights have been violated. Compensatory damages are awarded to
make good or replace the direct and consequential losses caused by the wrong or injury.
Exemplary damages are awarded when the defendant’s conduct has aggravated the situ-
ation after the wrong or when the defendant has demonstrated a wanton disregard for
the plaintiff’s legal rights. Punitive damages punish particularly egregious misconduct.
Reference to national law can be helpful if the differences in public and private law
cases are recognized. In some instances, the interests protected by a particular constitu-
tional (or human) right may not also be protected by an analogous tort or private obliga-
tion. The difficult task is one of adapting rules of damages to provide fair compensation
for injuries caused by the deprivation of a right. The purpose of human and civil rights
litigation would be defeated if injuries caused by the deprivation of constitutional rights
went uncompensated simply because the law does not recognize an analogous cause of
action in tort. The rules governing compensation for injuries caused by the deprivation
of rights should be tailored to the interests protected by the particular right in ques-
tion. This raises a problem with procedural violations in particular: if the result would
have been the same in the matter, even with no violation, what is the wrong and what
is the remedy? It can be argued that all procedural violations should be compensated
because the purpose of the procedural right is to ensure feelings of just treatment as
well as to minimize the risk of mistake in the outcome. In a proper case, persons might
recover damages for mental and emotional distress caused by the denial of procedural
due process. Similarly, damages should be awarded for humiliation and distress caused

399
  A. Hamilton, J. Jay, J. Madison, The Federalist, No. 51.
 Domestic Remedies 141

by unlawful arrests, searches and seizures, and the wrongful deprivation of the right to
vote.400
Remedies available reflect some normative conception of the relationship between
the citizen and the state. The emergence of international human rights law has led to
important developments in national legal systems, as states have increasingly limited
their governmental immunities and developed innovative responses to human rights
violations. As the next chapter will show, the traditional law of state responsibility drew
upon national remedies as it attempted to provide redress, particularly in cases of injury
to aliens. Modern human rights tribunals could similarly develop human rights rem-
edies by the application of some common principles of national law.

400
  Wayne v. Venable, 260 F.63 (8th Cir. 1919) cited in Hostrop v. Board of Junior College Dist. No.
515, 523 F.2d 569 (7th Cir. 1975) cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976)
and Ashby v. White, supra n. 1.
 5
International Tribunals

In general international law, a tribunal with jurisdiction over a dispute has jurisdic-
tion to award reparations upon determining that a breach of an international obliga-
tion has occurred.1 International tribunals have exercised this jurisdiction to determine
the scope, nature, modality, and beneficiaries of reparations,2 accepting, modifying or
rejecting the applicants’ claims in whole or in part.3 This chapter examines the remedies’
precedents from arbitral tribunals, international courts of general jurisdiction, and spe-
cialized bodies like the International Criminal Court and administrative tribunals, as
well as the international claims procedures for reparations that have been utilized follow-
ing armed conflicts. The jurisprudence from these bodies provides guidance and exam-
ples for human rights tribunals, whose functions and powers are discussed in Chapter 6.

5.1  Arbitral Claims for Injury to Aliens

In many ways, the law on state responsibility for injury to aliens can be viewed as a pre-
cursor to international human rights law, despite long-standing debate over whether the
required standard of treatment was an ‘international minimum’4 or ‘national treatment’5
standard. In arbitral and judicial decisions as well as settlements and other agreements,

1
  LaGrand (Germany v. United States of America) (Merits) [2001] ICJ (June 27), para. 48, citing
the Factory at Chorzów Case (Germany v. Poland) (Jurisdiction) [1928] PCIJ Rep. Series A No. 17,
22. The inherent power of the Court to award reparations was also affirmed in, inter alia, Fisheries
Jurisdiction (FRG v. Iceland) (Merits) [1974] ICJ Rep. 175, 203–5, paras. 71–6 (July 24); and Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) [1986] ICJ
Rep. 14, 142 (June 27). Brownlie notes that the presumed power of the Court to award damages has
gone unquestioned. Ian Brownlie, ‘Remedies in the International Court of Justice’, in Vaughan Lowe
and Malgosia Fitzmaurice (eds.), Fifty Years of the International Court of Justice (Cambridge, 1996),
557, 558.
2
  In the Chorzów Factory Case the Court found that its jurisdiction extends to method of payment,
beneficiaries, and other aspects of reparation. Chorzów Factory Case (Merits), supra n. 1, 61–2. Later, in
the Corfu Channel Case, the Court decided that it had competence to assess the actual amount of dam-
ages due in any case where it had competence to say that there was a duty to pay compensation. Corfu
Channel Case (U.K. v. Albania) [1949] ICJ 4, 23–4. The Court relied on the principle of effectiveness in
finding that it was required to set the amount. Ibid 26.
3
  See e.g. Inter-American Court of Human Rights, Loayza Tamayo Case (Reparations) Series C No. 42
(27 November 1998), 1, paras. 155–8, wherein the Court invoked the principle of proportionality to
determine the scope of reparations, while in the earlier Velásquez-Rodríguez Case, it applied principles of
equity to determine indemnification for non-monetary harm. Inter-American Court of Human Rights,
Velásquez-Rodríguez Case (Reparations) Series C No. 7 (1989), 1, para. 27. In both cases, the court
denied some reparations claims of the applicants.
4
  Borchard is among those who argued for minimum international standards of fundamental human
rights applicable to the treatment of aliens: E.M. Borchard, The Diplomatic Protection of Citizens Abroad
(New York, 1915), 13–15.
5
  The Montevideo Convention on Rights and Duties of States (26 Dec. 1933) formulated the princi-
ple that ‘Nationals and foreigners are under the same protection of the law and national authorities, and
foreigners may not claim other or more extensive rights than those of the nationals’: Art. 9, reprinted in
Septima Conferencia International Americana (1933), 192, 197.
 International Tribunals 143

states have asserted and responded to claims of wrongdoing causing harm to individuals,
in the process developing extensive practice on the issue of remedies.6
Since at least the Jay Treaty of 1794, international commissions have existed to adju-
dicate interstate claims, especially those concerning injury to aliens.7 Article 7 of the Jay
Treaty created a mixed commission to settle claims arising from violations of the laws of
neutrality.8 The tribunal assumed that international law was the source of the rules to be
applied on the assessment of damages.
Then and now most compromis governing disputes do not include provisions on rem-
edies and damages. Given the lack of explicit direction, international arbitrators gener-
ally have exercised a considerable discretion to assess damages. It has been argued in fact
that, because of the discretion afforded and the range of possible reparations, customary
international law does not provide ‘any principles, criteria or methods for determining a
priori how reparation is to be made for the injury caused by a wrongful act or omission’.9
Other critics find the practice inconsistent, even incoherent.10 In a study of the Mexican
Claims Commission, 1923–34, A.H. Feller noted that ‘[n]‌o part of the law of inter-
national claims is more fragmentary or confused than that relating to the measure of
damages’.11 Similarly, Briggs commented that ‘[n]o one who reads through the printed
decisions of the various Mexican claims tribunals set up in the last decade can fail to
notice their helpless flounderings in the seas of inconsistency when dealing with the
measure of damages’.12 Suspicion exists that arbitral decisions have as much to do with
large states imposing their power over smaller ones as they do with the rule of law.13
The criticisms are overstated, because arbitral decisions do show some consistency
and often set forth the principles on which awards are based, at least as often as do human
rights bodies. Arbitral tribunals frequently restate the theory that reparation ‘must wipe
out all the consequences’ of the illegal act. In the Lusitania cases, the arbiter Parker stated
that the ‘remedy must be commensurate with the injury received . . . The compensation
must be adequate and balance as near as may be the injury suffered’.14 In other instances,
arbitral tribunals have borrowed from municipal law or created their own theories of

6
  Compilations and discussions of decisions can be found in J. Ralston, International Arbitral Law
(Stanford, 1929), ch. IX; J.B. Moore, International Adjudications Ancient and Modern (New  York,
1929–33) [hereinafter Moore, International Adjudications]; J.B. Moore, History and Digest of the
International Arbitrations to which the United States Has Been a Party (Washington, 1898) [hereinafter
Moore, International Arbitrations]; and M. Whiteman, Damages in International Law (Washington,
1937), i.
7
  According to Gray, damage claims for injury to aliens forms the largest class of claims presented
over the past two hundred years. Some 261 of 435 tribunals formed between 1794 and 1972 dealt with
such claims. C. Gray, Judicial Remedies in International Law (New York, 1987), 35, citing A.M. Stuyt,
A Survey of International Arbitrations (Leiden, 1972), 1794–970.
8
  See 3, 4 Moore, International Arbitrations and 4 International Adjudications; Gray, supra n. 7, 33.
9
  See F.V. Garcia-Amador et al., Recent Codification of the Law of State Responsibility for Injury to
Aliens (Dobbs Ferry, 1974), 89; L. Reitzer, La reparation comme conséquence de l’acte illicite en droit
international (Paris, 1938), 111.
10
 Gray, supra n. 7, 10–11.
11
  A.H. Feller, The Mexican Claims Commissions 1923–1934: A Study in the Law and Procedure of
International Tribunals (New York, 1935), 290.
12
  H. Briggs, ‘The Punitive Nature of Damage in International Law and Failure to Apprehend,
Prosecute or Punish’, in J.M. Mathews and J. Hart (eds.), Essays in Political Science in Honor of W.W.
Willoughby (Baltimore, 1937), 348.
13
  The Supreme Court of Brazil referred in one case to foreign claims as the ‘terrorism of the indem-
nities’: Araujo Goes v. Uniao Federal, 87 Rev. Dir.Civ.Com.Crim. 51, 54. The Supreme Court of Peru
complained they showed ‘naught but the constant display of might over weakness’: Herrera v. Saco y
Flores, 23 C.S., An Jud. 493 at 495. See, further, Gray, supra n. 7, 6.
14
  Lusitania Cases (1923) 7 RIAA 35, 36.
144 The Institutional Framework

international law on damages or other remedies. It is therefore worth studying the decisions
to identify the principles that are articulated and to observe how they are applied, as most of
these cases concern what today would constitute violations of international human rights law.
The Lusitania arbitration concerned compensation only, but it is clear that the tradi-
tional international duty to make reparation comprises restitution and/or satisfaction, as
well as monetary awards. Satisfaction has often been determined more by the nature of the
imputable wrong than by the injury actually caused, and in some cases appears to have puni-
tive character and purpose.15
Arbitral agreements generally say little about proof of loss other than requiring the
claimant to furnish all information necessary to enable the respondent state to examine
any request for compensation.16 Damages may be limited by political agreement or other
considerations, as in the Alabama Claims arbitration,17 but in general claimants must prove
they have suffered actual losses attributable to acts by the breaching state to qualify for relief.
The same domestic law considerations of certitude and public policy that limit recovery
for remote injury govern international tribunals as much as they govern municipal courts.
Lack of certainty or evidence has led to claims being rejected, and tribunals generally refuse
claims that they find ‘speculative’.18 Causality is a major consideration and damages caused
by intervening acts are excluded.19
Remote damages have been uniformly disallowed by claims commissions,20 but
indirect losses that are considered reasonably certain may be recovered. It seems that
15
  F.V. Garcia-Amador, supra n. 9, i, 559.
16
  G. Yates III, ‘Postwar Belgian International Claims: Their Settlement by Lump Sum Agreements’
(1973) 13 Va. J. Int’l L. 554, 596. See also R.B. Lillich and B. Weston, International Claims: Their
Settlement by Lump Sum Agreements (Charlottsville, 1975) [hereinafter Lillich and Weston], 174.
17
  See the discussion in C. Eagleton, ‘Measure of Damages in International Law’, (1929) 39 Yale
L. J. 52, 67.
18
 See e.g. the War-Risk Insurance Premium Claims, United States–Germany Mixed Claims
Commission, Decisions and Opinions, 134; Pelletier Case, Moore, International Arbitrations, supra n. 6,
iv, 1779; Brig William, Moore, International Arbitrations, supra n. 6, 4226; De Caro Case, J. Ralston,
Venezuelan Arbitrations of 1903 (Washington, 1904), 817. Yntema claims that tribunals use the term
speculative to deny the claims they do not wish to accept: H. Yntema, ‘The Treaties with Germany and
Compensation for War Damages’ (1924) 24 Colum. L. Rev. 135, 139.
19
  See the Lusitania Cases, supra n.14; Yuille, Shortridge and Co., A. de Lapradelle and N. Politis,
Recueil des arbitrages internationaux (Paris, 1932), ii, 109; and Wielemans Case, Tribunaux Arbitraux
Mixtes, ii, 230.
20
  See e.g. Grant (Gt. Brit.) v. U.S., 8 May 1871, Hale’s Rep. 162 (destruction of business); Pelletier (U.S.)
v. Haiti, 24 May 1884, Moore, International Arbitrations, supra n. 6, iv, 1779 (alleged loss of investments
of real estate, and claims in consequence of his imprisonment); Dix (U.S.) v. Venezuela, 17 Feb. 1903,
Ralston, supra n. 18, 7 (sale of cattle at inadequate price, owing to revolution); Oliva (Italy) v. Venezuela,
13 Feb. 1903, Ralston, supra n. 18, 782 (sale of business at reduced price to enable claimant to enter on
a concession contract with the government; too many elements may have contributed to reduce price);
Valentiner (Germany) v. Venezuela, 13 Feb. 1903, Ralston, supra n. 18, 564 and Plantagen Gesellschaft,
Ralston, supra n. 18, 631 (loss of crop owing to draft of claimant’s labourers); Monnot (U.S.) v. Venezuela,
17 Feb. 1903, Ralston, supra n. 18, 171 (loss of business prospects); Bischoff (Germany) v. Venezuela,
13 Feb. 1903, Ralston, supra n. 18, 81 (injury to business resulting from unreasonable detention of prop-
erty lawfully seized); Brig William (U.S.) v. Mexico, 11 Apr. 1839, Ralston, supra n. 18, 4226 (prospective
profits when vessel wrongfully detained disallowed); Hammaken (U.S. v. Mexico), 4 July 1868, Ralston,
supra n. 18, 3471 (consequential damages considered of an uncertain and imaginative nature); Salvador
Commercial Co. (U.S.) v. Salvador, 19 Dec. 1901, For.Rel. 1902, 857, 872 (‘probable future profits of the
undertaking’ disallowed); Rudloff (U.S.) v.Venezuela, 17 Feb. 1903, Ralston, supra n. 18, 182, 198 (average
profits of a business venture disallowed, because unable to show that profits would have been made); De
Caro (U.S.) v. Venezuela, 13 Feb. 1903, Ralston, supra n. 18, 810 (average profits disallowed, when other
causes, such as warfare, might have prevented them); Poggioli (Italy) v. Venezuela, 17 Feb. 1903, Ralston,
supra n. 18, 847 (claim for threats against claimants’ debtors disallowed, as indirect and uncertain). Such
a result was often compelled by the arbitration agreement. See e.g. Art. 3 of the Protocol of Arbitration
between France and Haiti, which said the Commission ‘shall throw out claims concerning indirect losses
or damages’: Protocol of Arbitration, 10 Sept. 1913; Suppl. to (1914) 8 Am. J. Int’l L. 125.
 International Tribunals 145

in general a state is not charged with responsibility for indirect damages to the same
extent as are private individuals in municipal tort litigation. Instead, international bod-
ies strictly apply the criteria of proximity, certainty, and causality, in some instances,
looking to the foreseeability of the damage.21
Claims of indirect damages, particularly lost profits, pose special concern due to
their speculative nature. Some early cases referred to Grotius, Pufendorf, and Vattel to
justify the award of lost profits.22 In the Alabama arbitration,23 the arbitrators expressed
the opinion that general principles of international law precluded recovery for certain
indirect claims arising out of the losses caused by the transfer of the American merchant
marine to the British flag.24 The arbitral decision also refused to award future earnings
‘inasmuch as they depend in their nature upon future and uncertain contingencies’.
Other tribunals also have refused to include anticipated profits, loss of credit, and similar
consequential losses.25 The Norwegian Shipowners26 and Lighthouses27 cases are contra,
awarding lost future profits. The primary question seems to be whether there is a rea-
sonable prospect of future profitability. Other factors taken into account in some lump
sum agreements are waivers of taxes and other charges or debts owed.28 In general, such
agreements involve only partial compensation for property taken.29
In claims for injury to aliens and in human rights claims, problems of proof can arise
due to actions by the defendant state. If the state refuses to permit physical investigations
by experts or will not otherwise help claimants to obtain evidence in support of their
claims, a tribunal has several options. It may either reject the claim for failure to meet the
burden of proof, liberalize its demands of proof and accept uncorroborated evidence,
or it may even recognize a presumption or inference against the defendant sufficient to
support an award.30 The choice can be difficult because, while compensation cannot be
computed with absolute certainty, it should not be fixed on the basis of conjecture.
Among the forms of redress, restitutio in integrum calls for re-establishment of the
situation ex ante. In the narrow sense, it calls for the return of a thing taken or the exact
re-establishment of what has been lost. It is not damages but rather restoration in natura.
It can be the restoration of objects unlawfully seized or the release of persons unlawfully
arrested or detained. It also can involve the repeal or amendment of laws, administrative
acts, or decisions that are internationally wrongful. In the Martini case, concerning an

21
  In the Samoan claims the commissioners held that ‘the damages for which a wrongdoer is liable are
the damages which are both, in fact, caused by his action, and cannot be attributed to any other causes,
and which a reasonable man in the position of the wrongdoer at the time would have foreseen as likely
to ensue from his action’: 1902 Germany–Great Britain, United States, 9 RIAA 15.
22
 See The Betsy, in Moore, International Adjudications, supra n. 6, iv, 194; and The Neptune, Moore,
International Adjudications, 372.
23
  Alabama Arbitration, Moore, International Arbitrations, supra n. 6, i, 623, 646, 658; J.B. Moore,
Digest of International Law (1906) vol. vi, [hereinafter Moore, Digest], 999.
24
  Damages were sought for the enhanced payments of insurance, prolongation of the war, in addi-
tion to the cost of the war, and the suppression of the rebellion.
25
  United States Acts of Congress authorizing domestic commissions to distribute international
awards have excluded anticipated profits and indirect losses from consideration as elements of dam-
age. See Act of 23 June 1874, s. 11, 18 Stat. L. 247 on Alabama Claims held to exclude a claim for loss
of catch in consequence of a vessel being driven away from whaling grounds: Gannett v. U.S., Moore,
International Arbitrations, supra n. 6, 4295. Similarly, the Spanish Treaty Claims Commission, created
by Act of 2 Mar. 1901, s. 11, 31 Stat. L. 879 stated that ‘Awards shall be only for the . . . actual and direct
damage . . . Remote and prospective damages shall not be awarded’.
26
  Norwegian Shipowners Claims (Nor. v. U.S.) (Perm.Ct. Arb.) (1922) 1 RIAA 307.
27
  Lighthouses Arbitration (France v. Greece) (Perm.Ct. Arb.) (1956) 23 ILR 299.
28
  Lillich and Weston, supra n. 16 at 220 et seq. 29
 Ibid 239.
30
  On this point, see the Diallo Case (Republic of Guinea v. Democratic Republic of the Congo) (Merits)
[2010] ICJ Rep. 639.
146 The Institutional Framework

unlawful demand of payment, the tribunal held that the obligations should be annulled,
applying the principle that the consequences of the illegal act should be wiped out (‘les
conséquences de l’acte illicite doivent être effacées’).31 In the Mavrommatis case, the
Permanent Court of International Justice called for annulment of the clause that vio-
lated international law even though it found no pecuniary harm to the individual.32
Where domestic law is incompatible with international obligations, ‘legal restitution’
through adoption of a legislative measure or rescission of an executive or administrative
decision may be possible, but repealing a law in force or revoking a judicial decision is
often difficult.33 Perhaps because of this, claims practice is not consistent; restitution was
granted as the primary remedy in the Libya Oil Companies Arbitration,34 while in British
Petroleum v. Libya35 no restitution was ordered.
Payment of compensation constitutes the most usual form of reparation. Monetary
awards are intended, in lieu of restitution, to indemnify fully all pecuniary and
non-pecuniary losses, with the latter often being assessed equitably on the basis of the
injury presumed to result from the breach. The degree of governmental misconduct can
be an important factor in the assessment. The injury itself may include both material and
moral losses, although more strictly and more rarely injury refers only to material losses.
For each type of alien injury, issues of causality, proximate harm, interest, and costs and
fees are important in assessing damages.
In nearly all legal systems, damages for injuries are recoverable from the actor causing
the harm. In inter-state claims, less consistency is found due to the fact that the state is
pursuing the claim for its own injury and only indirectly for that of the individual or
individuals involved and it is doing so against the state and not the individual perpetra-
tor. Still, it is possible to group together and analyse the most common types of claims
for injury to aliens and the relief afforded.

5.1.1  Wrongful  Death

Many human rights violations involve the death of individuals at the hands of govern-
ment agents in circumstances similar to those found in cases of injury to aliens. Damages
in the latter cases have generally been based on evaluation of the losses of the surviving
heirs or successors. The Lusitania arbitrator, Parker, set out the formula most often cited
to assess damages in cases of death, based on factors he found to be so ‘firmly established
by both the civil and common law authorities as to make further elaboration wholly
unnecessary’.36 He stated that a calculation of compensation should:
Estimate the amounts (a) which the decedent, had he not been killed, would probably have con-
tributed to the claimant, add thereto (b) the pecuniary value to such claimant of the deceased’s
personal services in claimant’s care, education, or supervision, and also add (c)  reasonable

31
  Martini Case (Italy v. Venezuela) (1930) 2 RIAA 977, 1002.
32
  ‘La clause de l’article 29 de la concession Rutenberg . . . doit etre considereé comme effaceé’: The
Mavrommatis Palestine Concessions Case [1924] PCIJ Series A No. 2, 51. See also Arrest Warrant of
11 April 2000 (Democratic Republic of the Congo v. Bel.) [2002] ICJ 3 [hereinafter Arrest Warrant Case].
33
  States have done so to comply with international judgments, however, to the point of amending
or repealing constitutional provisions found incompatible with international human rights norms. See,
e.g. Inter-American Court of Human Rights, Last Temptation of Christ (Olmedo Bustas et al.) v. Chile
(2001) Series C No. 73 (holding prior censorship to violate Inter-American norms, requiring a consti-
tutional amendment to eliminate the violation).
34
  Topco v. Libya (1977) 53 Int’l L.Rep. 389.
35
  British Petroleum v. Libya (1973) 53 Int’l L.Rep. 297.
36
  Lusitania Cases (1923), supra n. 14, 364.
 International Tribunals 147
compensation for such mental suffering or shock, if any, caused by the violent severing of family
ties, as claimant may actually have sustained by reason of such death. The sum of these estimates,
reduced to its present cash value will generally represent the loss sustained by claimant.37
Parker added that other factors also were to be taken into account in making the
calculation:
(a) the age, sex, health, condition and station in life, occupation, habits of industry
and sobriety, mental and physical capacity, frugality, earning capacity and cus-
tomary earnings of the deceased and the uses made of such earnings by him
(b) the probable duration of the life of the deceased but for the fatal injury, in arriving
at which standard life-expectancy tables and all other pertinent evidence offered
should be considered
(c) the reasonable probability that the earning capacity of the deceased, had he or she
lived, would either have increased or decreased
(d) the age, sex, health, condition and station in life, and probable life expectancy of
each of the claimants
(e) the extent to which the deceased, had he or she lived, would have applied income
from earnings or otherwise to personal expenditures from which claimants would
have derived no benefits.
According to Parker, interest rate and present-value tables should be used in reducing
the amount to present value. The deceased’s pain and suffering would not be considered
nor would life insurance proceeds. Punitive damages would not be included, but moral
damage would. ‘That one injured is, under the rules of international law, entitled to be
compensated for an injury inflicted resulting in mental suffering, injury to his feelings,
humiliation, shame, degradation, loss of social position or injury to his credit or to his
reputation, there can be no doubt, and such compensation should be commensurate to
the injury’.38
The arbitrator assisted claimants by indicating the evidence that would be deemed
to prove each element of the claim. The amount of financial support that a deceased
would have contributed to a claimant could be established by evidence of the relation-
ship of the two, the age of the deceased at the time of death, the deceased’s life expec-
tancy according to actuarial tables, and expected income. The last could be shown by
statements of employers, income patterns, rank and position, and statements of busi-
ness or professional associates regarding future potential together with an estimate of
the percentage of the income that would have gone to the claimant had the death not
occurred. Damages for the loss of the deceased’s personal services could be established
by affidavits of the claimant, others with personal knowledge of the extent and value
of the deceased’s services, and estimates by qualified persons of personal care and simi-
lar items of expense. Reasonable compensation for mental suffering, shock, or loss of
companionship could be estimated by medical opinion. Expenses of the estate could be
claimed by the administrator or by the heirs if paid by them.39 Medical, hospital, and
perhaps funeral expenses could be included and established by receipts, bills, statements,
or correspondence. Where an executor or administrator is not one of the survivors of the
deceased, a separate claim brought on behalf of an estate could be joined with the claim of
the deceased’s survivors.

37
 Ibid, 363. 38
 Ibid, 40.
39
  M.M. Whiteman, Digest of International Law (Washington, 1963), i, 789.
148 The Institutional Framework

In the De Caro case in the Venezuelan Arbitrations of 1903, the arbitrator evaluated ‘the
extent of comforts and amenities of which the wife has been the loser . . . the deprivation of
personal companionship and cherished associations consequent upon the loss of a husband
or a wife unexpectedly taken away. Nor can we overlook the strain and shock incident
to such violent severing of old relations’.40 The United States–Mexican General Claims
Commission in the Janes case41 also allowed compensation beyond material losses, for dam-
ages in respect of indignity, grief, and similar consequences of the wrongs done.
The Commission in the Janes case conceded the difficulty of measuring damage for
loss of life, which ‘cannot be computed by merely stating the damages caused by the
private delinquency’.42 It found, nonetheless, that a computation of this character is
no more difficult than computations in other cases of denial of justice, such as ille-
gal deprivation of liberty, harsh treatment in jail, insults and threats to prisoners, or
non-punishment of the perpetrator of a dignitary crime such as an assault or attack on
one’s reputation and honour.
In the Janes case, the United States–Mexican General Claims Commission accepted that
consistent failure to prosecute and punish could assume the character of non-prevention,
making the government primarily liable for the killing. In general, however, the govern-
ment’s liability would be premised on its failure to act after the event, not on the commis-
sion of the private crime. In this regard, the government’s improper conduct would be
taken into account in determining the amount of damages to be awarded—indeed, it is
virtually the only articulated criterion for setting the amount of reparations. ‘One among
the advantages of severing the Government’s dereliction of duty from the individual’s
crime’, the Commission reasoned, ‘is that it grants an opportunity to take into account
several shades of denial of justice, more serious ones and lighter ones’.43 In this case,
‘[g]‌iving careful consideration to all elements involved, the Commission holds that an
amount of $12,000, without interest, is not excessive as satisfaction for the personal dam-
age caused the claimants by the non-apprehension and non-punishment of the murderer
of Janes’.44 Thus, the losses due to the killing itself—lost earnings and other contributions
to the family—were not the measure. The measure was the grief and indignity caused rela-
tive to the extent of government dereliction. No breakdown was given of the total award;
the Commission noted only that it was based on ‘all elements involved’.
Following Janes, two General Claims Commission decisions in cases of wrongful
death resulted in somewhat higher awards of $15,000. One involved a consul to whom
special duties of protection were owed,45 the other involved negligence of a jailer in
allowing a murderer to escape from jail.46 Two other Commission judgments awarded
$10,000 for failure to prosecute a murder. In one of the cases the murderer was rendered
immune because of a general amnesty;47 in the other case the murderer was indicted
but never brought to trial.48 Other claims resulted in awards of between $5,000 and
$8,000 for dereliction of the duty to prosecute.49 However, where adequate punishment

40
  De Caro (U.S.) v. Venezuela, Ralston, supra n. 18, 769, 770.
41
  Janes Case, (U.S. v. Mexico) (1926) 4 RIAA 82, 118. 42
 Ibid, 108. 43
 Ibid.
44
  Ibid. The award would be equivalent to $157,440 in 2015.
45
  U.S.A. (William E. Chapman) v. United Mexican States, Opinions of Commissioners, 1927, 228.
The $15,000 award would be equivalent to approximately $188,900 in 2015.
46
  U.S.A. (Gertrude Parker Massey) v. United Mexican States, Opinions of Commissioners, 1927, 228.
47
  U.S.A. (F.R. West) v. United Mexican States, Opinions of Commissioners, 1927, 408.
48
  United Mexican States (Salome Lerma de Galvan) v. U.S.A., Opinions of Commissioners, 1927, 412.
49
 $8,000 were awarded in U.S.A. (Ethel Morton) v.  United Mexican States, Opinions of
Commissioners, 1929, 151 (inadequate sentence) and U.S.A. (Helen O. Mead) v. United Mexican States,
Opinions of Commissioners, 1931, 150 (failure to prosecute). $7,000 was awarded in five cases: U.S.A.
 International Tribunals 149

was carried out and no denial of justice was shown, the awards were considerably less.50
Complementarily, where the government was responsible both for the death and for
failure to punish, the awards were substantial. In such cases, although the Commission
awarded no separate compensation for each violation,51 direct pecuniary losses were
taken into account,52 and the Commission awarded damages for grief and indignity
where pecuniary losses were not shown.53 In the Youmans case, both direct pecuniary
damages and damages for grief and indignity were awarded.54
The decision in the 1992 Letelier arbitration provides a modern example of assess-
ment of damages for wrongful death. The case between the USA and Chile arose from a
1976 car bombing in Washington D.C. that killed former Chilean ambassador Orlando
Letelier and Ronni Moffitt, a US national passenger in the car. On 11 January 1992,
the Commission with jurisdiction to rule on the matter55 issued its decision regarding

(Richard A. Newman) v. United Mexican States, Opinions of Commissioners, 1929, 284; U.S.A. (Sarah
Ann Gorham) v. United Mexican States, Opinions of Commissioners, 1931, 132 (failure to apprehend);
U.S.A. (Elvira Almaguer) v.  United Mexican States, Opinion of Commissioners, 1929, 291; U.S.A.
(Lillian Greenlaw Sewell) v.  United Mexican States, Opinion of Commissioners, 1931, 112; U.S.A.
(Minnie East) v. United Mexican States, Opinion of Commissioners, 1931, 140 (improper trial pro-
cedures). The most common award was $5,000. It was given in U.S.A. (Hazel M. Corcoran) v. United
Mexican States, Opinions of Commissioners, 1929, 211; U.S.A. (Martha Ann Austin) v. United Mexican
States, Opinions of Commissioners, 1931, 108 (failure to apprehend); U.S.A. (George Adams Kennedy)
v. United Mexican States, Opinions of Commissioners, 1927, 289 (inadequate sentence); U.S.A. (Ida
R.S. Putnam) v. United Mexican States, Opinions of Commissioners, 1927, 222 (prisoners allowed to
escape); U.S.A. (Louise O. Canahl) v. United Mexican States, Opinions of Commissioners, 1929, 90
(failure to apprehend); U.S.A. (John D. Chase) v. United Mexican States, Opinions of Commissioners,
1929, 17; U.S.A. (J.J. Boyd) v. United Mexican States, Opinions of Commissioners, 1929, 78 (undue
delays in prosecution). In two cases where the assailants were prosecuted for homicide, but not for
theft, the claimants received $2,500: U.S.A. (George M. Waterhouse) v. United Mexican States, Opinions
of Commissioners, 1929, 221; U.S.A. (Norman T. Connolly) v. United Mexican States, Opinions of
Commissioners, 1929, 87.
50
 See United Mexican States (Thodoro Garcia) v. U.S.A., Opinions of Commissioners, 1927, 163
($2,000 for the wrongful death of a child shot by American soldiers).
51
 See U.S.A. (J.W. and N.L. Swinney) v. United Mexican States, Opinion of Commissioners, 1927,
131 (killing by Mexican border guards and failure to punish resulting in an award of $7,000).
52
 See U.S.A. (Lillie S. Kling) v. United Mexican States, Opinions of Commissioners, 1931, 36 ($9,000
for shooting by Mexican soldiers who were not punished); U.S.A. (Margaret Roper) v. United Mexican
States, Opinions of Commissioners, 1927, 205 ($6,000 for drowning of Americans fleeing Mexican
police shots); U.S.A. (Mamie Brown) v. United Mexican States, Opinions of Commissioners, 1927, 211
($8,000 on same facts); U.S.A. (Rosetta Small) v. United Mexican States, Opinions of Commissioners,
1927, 212 ($5,000 on same facts).
53
  U.S.A. (Charles S. Stephens) v. United Mexican States, Opinions of Commissioners, 1927, 397
(disallowing pecuniary damages as too speculative while awarding $7,000 for grief and indignity). See
also U.S.A. (Agnes Connelly) v. United Mexican States, Opinions of Commissioners, 1927, 159 ($18,000
for grief and indignity where no evidence of material support); U.S.A. (Mary E.A. Munroe) v. United
Mexican States, Opinions of Commissioners, 1929, 314 ($11,000, apparently for grief and indignity).
54
  U.S.A. (Thomas A. Youmans) v. United Mexican States, Opinions of Commissioners, 1927, 150
($20,000).
55
  The Commission was established after the USA made an international claim against Chile in respect
of the deaths and injuries, invoking the provisions of the Bryan-Suarez Mujica Treaty of 1914 between the
two states: Treaty for the Settlement of Disputes that May Occur Between the United States and Chile,
1914, U.S. T.S. 621, 39 Stat. 1645, T.S. No. 621. Chile denied responsibility, but indicated that it was
prepared to make an ex gratia payment to the USA on behalf of the families of the victims. The two states
concluded an Agreement in 1990 under which Chile agreed to make payment as if liability had been estab-
lished: Chile–United States: Agreement to Settle Dispute Concerning Compensation for the Deaths of
Letelier and Moffit, 1990, (1991) 30 ILM 422. The Commission reviewed numerous legal and factual issues
pertaining to the question of compensation and unanimously awarded sums totalling just over $2.5 million.
See 88 ILR 727 and (1992) 31 ILM 1. See also Marian Nash (Leich), ‘Claims for Wrongful Death’ (1992)
86 Am. J. Int’l L. 347; J.G. Merrills, International Dispute Settlement, (3rd edn, Cambridge, 1998), 55–8.
150 The Institutional Framework

the deaths of Letelier and Moffitt and injuries sustained by Moffitt’s husband, Michael
Moffitt. Chile, without admitting liability, was required to pay the compensation deter-
mined by the Commission totalling $2,611,892 for all claimants, which included allo-
cation for loss of support, moral damages, health expenses, and other expenses incurred.
The Commission noted that, though there was no admission of liability, its mandate
was to determine the amount of the payment ‘as though liability were established’.56
The United States–Chilean Commission relied upon the Chorzów Factory case, cited by
Chile and the USA, because it saw it ‘as enunciating a general rule’ on reparations.57 In
assessing damages, the Commission examined the loss of financial support and services
and the material and moral damages suffered by each of the claimant family members.
For Letelier, the Commission made ‘the most likely assumption’ about the remainder
of his working life as if he had not been killed, taking into account salary and fringe ben-
efits from 1976 to at least 1990. It also took into account ‘the amount which would have
been paid to him as salary and retirement pension for the remainder of his expectation of
life (until 2007) had he returned to Chile in 1990 and worked in public service’ in some
capacity such as Minister of State, Ambassador, or Senator.58 The Commission did not
include income from conferences, lectures, or publications
because it considered that there were insufficient bases on which to establish such income in this
case. Nor did the Commission include an award for the provision by Mr Letelier of household
services, such as carpentry, because it considered such activities on his part to be more in the nature
of an occasional pastime to which it was not in a position to attribute a pecuniary value.59
In total, the Commission awarded $1.2  million to Letelier’s widow and sons in
pecuniary damages, $160,000 in moral damages to the widow, and $80,000 to each
of the four children. In assessing the amount, ‘the Commission took into account, by
way of comparison, the amounts granted for moral damages by jurisdictional organs of
the inter-American system and those awards ordered by recent arbitration or judicial
tribunals’,60 factual differences being borne in mind. The Commission also granted
$16,400 to Letelier’s widow for medical expenses.
For the death of Ronni Moffit, the Commission found her husband’s losses to
have included contribution for services in the home plus loss of financial support, and
awarded $233,000 under these headings. For moral damages, the Commission said that
it was ‘virtually impossible’ to assign a separate value for Michael Moffit’s own injuries in
the bombing and that caused by the loss of his wife61 and therefore considered the two
together as amounting to $250,000. Costs of $12,000 were also awarded.
Ronni Moffit’s father also presented a claim, but the Commission found no causal
link between her death and her father’s health problems; however, it awarded moral
damages of $300,000, costs of $20,000, and $100,492 for the ‘special expenses which
the families have jointly incurred as a consequence’ of the bombing.
Developments in Chile played an important role in the assessment of moral dam-
ages: ‘In considering the compensation for moral damages, the Commission has taken
into account the significant steps undertaken by the Chilean Government and Congress
to remedy human rights problems as well as the efforts undertaken towards financial
reparation at the domestic level for families of victims’.62 In addressing moral compensa-
tion in his concurring opinion, Professor Orrego Vicuna noted that Chile had already
tried to satisfy some of the moral injury through the Head of State’s apology to the

56
  Award, reprinted in Nash, supra n. 55, 348, para. 20.    57  Ibid, para. 21.
58
  Ibid, 349, para. 29.    59 Ibid.   60 Nash, supra n. 55, para. 31.
61
  Ibid, 349–50, para. 35.    62  Ibid, para. 41.
 International Tribunals 151

families of the victims and through the establishment of the National Commission on
Truth and Reconciliation. The government also asked Congress to enact legislation on
compensation, and sought to prosecute those involved in the Letelier case. ‘This positive
attitude has certainly a bearing on the determination of compensation for moral dam-
ages’, Professor Orrego Vicuna observed.63

5.1.2 Deprivation of liberty
Arbitral decisions in cases of false arrest or imprisonment vary in their valuation of the
damage caused by deprivation of individual liberty due to the wrongful detention. The
different amounts seem to depend upon several factors:
(1) the arbitrariness of the arrest (i.e. the degree of wrongdoing by the government)
(2) any physical or moral suffering connected with the imprisonment
(3) the duration of the imprisonment
(4) the character or station in life of the person arrested or detained
(5) the proximate consequences of the deprivation of liberty and
(6) other special circumstances.
Among these factors, the most troublesome is consideration of the social status or
character of the victim. In the Oliva case in the Venezuelan Arbitrations of 1903, the
Italian commissioner distinguished an earlier case as follows: ‘In the Boffolo case, the
umpire, in granting 2000 bolivars, was influenced by what seemed to be the unworthy
character of the man. In the present case, the claimant appears to have been a man
of standing and character and recognized by a branch of the Venezuelan government,
as a worthy concessionary’.64 Accordingly, the commissioner proposed to calculate the
indemnity ‘considering the good reputation always enjoyed by the claimant, his indus-
trious character, and the high social class in which he moves’.
In general, the character of the victim should not be considered because it is irrelevant
to the wrong and to the remedy, and implies a value judgment on the worth of an indi-
vidual that has nothing to do with the injury suffered.65 Of course, if the victim caused
the damage through his or her actions, the denial of a remedy would be justified and may
even preclude the finding of a violation. Similarly, when the victim is seeking damages
for injury to reputation, it is appropriate to consider the nature of the victim’s reputation
both before and after the state action, to measure the harm done.
Valuation of dignitary harm from the loss of liberty has given arbitrators consider-
able difficulty. In some instances, a set amount has been presumed to reflect the injury
and been applied in the absence of circumstances dictating an adjustment. Decisions
of the United States–Mexican Claims Commission during the 1920s first announced
a principle of $100 per day for unlawful arrest and imprisonment,66 but did not always

63
 Ibid, 351. 64
  Oliva (Italy) v. Venezuela, supra n. 20.
65
  As Brigitte Stern says: ‘Dans certain hypothèses, semble avoir été prise en considération ‘la valeur’
d’une personne pour l’évaluation de la réparation qui lui était due. Cette attitude est absolument
inadmissible, car elle implique un jugement de valeur sur un individu, jugement qui n’a aucun rap-
port avec le dommage qu’il a subi, celui-ci devant être évalué de façon aussi objective que possible’:
B. Bollecker-Stern, Le préjudice dans la théories de la responsabilité international (Paris, 1973), 314.
66
  Ralston was the first to calculate damages for false imprisonment at $100 a day, a figure accepted
by the Mexican Claims Commission, with 50% added because of the changed value of money:
J. Ralston, The Law and Procedure of International Tribunals (Stanford, 1926), 262 et seq.; U.S.A. (Walter
152 The Institutional Framework

apply the standard consistently (in two cases identical awards were given for five days’
detention and for unlawful arrest for 28 hours).67 Higher amounts have been given
for worse conditions of confinement, but per diem amounts seem to have decreased
with longer periods of detention, though it is not clear why.68 In many cases, convinc-
ing proof of pecuniary loss was lacking and equity or justice became the basis for the
award.69 The French–Mexican Commission, the German–Mexican Commission, and
the Italian–Mexican Commission reduced the amount of damages or awarded on an
equitable basis if no proof was produced.70
The British–Mexican Claims Commission also awarded damages for pecuniary losses
suffered in cases of personal injury resulting from incarceration, but rarely for pain or
suffering.71 One case where it did make an assessment was the William McNeil case72
where the victim suffered a serious and long-lasting nervous breakdown following his
incarceration and mistreatment in a Mexican prison. The Commission compensated
him on the basis of his lost earnings from a lucrative profession and for the heavy expenses
he incurred to overcome his breakdown. The Commission said that the compensation
must be ‘in just proportion to the extent and to the serious nature of the personal injury
which he sustained’.73 In sum, arbitral decisions demonstrate a concern for liberty and
recognition of the pecuniary and non-pecuniary harm suffered by wrongful detention
and imprisonment. They were often generous in their awards, particularly when abusive
conditions of confinement accompanied the violation of liberty.

5.1.3 Injury to property
Human rights violations affect property as well as personal security. From destruction
of homes as part of ethnic cleansing to unjustified governmental takings, human rights
tribunals must consider the value of the victim’s losses. Considerable international juris-
prudence on state responsibility contains guidelines for property valuations.
Computation of damages for property losses, unless otherwise provided by agree-
ment or statute, has generally been based upon the value of the property at the time of
taking or destruction, or upon the difference in the value of the property before and
after the damage was inflicted.74 Some orders or agreements allow assessment of losses

H. Faulkner) v. United Mexican States, Opinions of Commissioners, 1927, 86, relying on the Topaze
Case, British–Venezuelan Commission, Ralston, supra n. 18, 329.
67
 Cf. U.S.A. (Louis Chazen) v. United Mexican States, Opinions of Commissioners, 1931, 20 and
U.S.A. (Fannie P. Dujay) v. United Mexican States, Opinions of Commissioners, 1929, 180. $500 was
awarded in both cases.
68
  U.S.A. (Daniel Dillon) v. United Mexican States, Opinions of Commissioners, 1929, 61 ($2,500
for 12 days’ detention and being held incommunicado); U.S.A. (Harry Roberts) v. United Mexican
States, Opinions of Commissioners, 1927, 100 ($8,000 for 19  months); U.S.A. (Russell Strother)
v. United Mexican States, Opinions of Commissioners 1927, 392 (same); U.S.A. (Mary Ann Turner)
v. United Mexican States, Opinions of Commissioners, 1927, 416 ($4,000 for five months’ detention);
U.S.A. (Clyde Dyches) v. United Mexican States, Opinions of Commissioners, 1929, 193 ($8,000 for
18 months’ detention).
69
  See the cases cited, supra n. 68. See Mexico City Bombardment Cases, Decisions and Opinions of
Commissioners, 100, 105.
70
  See e.g. Rep. française (Georges Pinson) v. Etats-unis mexicains, Jurisprudence de la commission
franco-mexicaine des reclamations, 132; A.H. Feller, supra n. 11, 306–7.
71
 Ibid, 302–3.
72
  Decision of 19 May 1931 of the British–Mexican Claims Commission (1952) 5 RIAA, 164.
73
 Ibid, 168.
74
  R. Lillich and G. Christenson, International Claims: Their Preparation and Presentation (Syracuse,
1962); see also Whiteman, supra n. 6, ii, 1085.
 International Tribunals 153

‘as seems just and equitable to the Commission having regard to all the circumstances’,75
others specify a date of valuation, while still others address the problem of property valu-
ation itself. In the treaties between Mexico and various European states, specific choice
of law was made, as in Article VI of the British– Mexican Convention:
In order to determine the amount of compensation to be granted for damage to property, account
shall be taken of the value declared by the interested parties for fiscal purposes, except in cases
which in the opinion of the Commission are really exceptional. The amount of the compensa-
tion for personal injuries shall not exceed that of the most ample compensation granted by Great
Britain in similar cases.
Evidence of the value of the loss may include purchase price, age and condition of
the property, appraisals by experts and by individuals having personal knowledge of the
facts, as well as rental income and values determined for similar types of property in the
same or adjacent areas. Total loss value is generally the reasonable or fair market value of
the property.76 Many factors can be included in computing market value: tax value, the
last sale value, mortgage value, sales value of other similar realty, condition at the time of
sale, condition of the industry in which the property was to be used, adaptability for use,
etc.77 ‘[E]‌ven if all available methods are used in documentation of a claim for damages,
no single criterion exists for deciding what weight should be given to each’.78
Settlement agreements are not a source of precise normative guidelines on compensa-
tion.79 They represent a compromise between the state seeking full compensation and
the state responsible for the loss, and may reflect considerable conflict over the concept
of property and value, centring on the manner in which the value of property is deter-
mined. The problem is not the principle of compensation, but the method of calculating
value.80 In an economic analysis of lump sum agreements, Norman Mintz81 describes the
three different methods for valuing property: fair market value; application of a discount
rate to the expected flow of earnings; and replacement cost. All are subject to consider-
able uncertainty when dealing with a forced sale. Moreover, replacement cost and the
economic worth of an asset may diverge considerably. Thus, ‘a single and unquestion-
able value for a given asset cannot be determined’.82 The owner and government are
likely to differ substantially on value and to have the issue resolved in negotiations or
adjudication.

75
  R. Lillich, International Claims: Post-War British Practice (n.p. 1967), 113.
76
  G.H. Hackworth, Digest of International Law (Washington, 1943), v, 758–60.
77
  Also includable are contracts, deeds, tax rolls, documentation of the nature and cost of subse-
quent improvements, amount of mortgages or encumbrances on the property, amount of depreciation,
appraisals by qualified experts, book value of business or corporate property, studies and reports by
industrial engineers, and affidavits of persons with special knowledge of the reasonable value of the
property at the time of loss. Photographs, extracts from corporate books, accountant’s reports, meas-
urements and statistics of industrial capacity and physical plant, income derived from the property for
several years previous, etc. will corroborate an expert’s estimate of the fair market value. Add evidence of
inventories, accounts, and other supplies on hand. Insurance appraisals can also be useful.
78
  Lillich and Christenson, supra n. 74, 77.
79
  According to one scholar, such settlements ‘do not employ the terminology beloved of interna-
tional lawyers—‘full compensation’, ‘fair compensation’, ‘prompt, adequate and effective compensa-
tion’—nor is there any discernible line of principle whereby one might determine the proper quantum
of compensation’: Q. Baxter, ‘Treaties and Custom’ (1970-I) 129 Recueil des Cours (Hague Academy of
International Law) 25, 87–8.
80
  Lillich and Weston, supra n. 16, 254.
81
  N. Mintz, ‘Economic Observations on Lump Sum Agreements’, in Lillich and Weston, supra
n. 16, App. A, 264.
82
 Ibid.
154 The Institutional Framework

The Iran Claims Tribunal had extensive practice in compensation and valuation of prop-
erty loss.83 While a few cases awarded restitution and specific performance, the Tribunal gener-
ally awarded compensatory damages for takings of property and, in most cases, its chambers
utilized a ‘full compensation’ standard based on the fair market value at the time of taking,
including the present value of goodwill and likely future profits for going concerns.84 The
chambers almost unanimously found that this standard reflects customary international law.85
Members of the Tribunal began in disagreement over the issue of whether a single
standard applies to both lawful and unlawful seizures. In INC Corporation and the Islamic
Republic of Iran, Judge Langergren argued for two standards, stating that an unlawful depri-
vation of property requires full compensation, a monetary version of restitutio in integrum,
but that in certain cases of lawful large-scale nationalizations, contemporary interna-
tional law suggests applying a more flexible standard of ‘appropriate compensation’.86
Judge Holtzmann expressed his strong disagreement, arguing for full compensation
in all instances.87 In the Phelps Dodge case,88 the Chamber held that it was irrelevant
whether or not the taking had been lawful, while Judge Brower’s concurrence in the
Sedco case found the difference between lawful and unlawful takings in the requirement
of restitution as a remedy for an unlawful taking; in the event that restitution is impossi-
ble, then the remedy becomes the same as that of a lawful taking: full compensation.89 In
the Amoco case, Chamber Three became the only one to hold that the legal consequences
are different according to the characterization of the taking and that lost profits can
only be recovered as an element of restitution in cases of wrongful expropriations.90 In

83
 See, generally, G. Aldrich, The Jurisprudence of the Iran–United States Claims Tribunal:  An
Analysis of the Decisions of the Tribunal (Oxford, 1996); C.F. Amerasinghe, ‘Issues of Compensation
for the Taking of Alien Property in the Light of Recent Cases and Practice’ (1992) 41 I.C.L.Q. 22;
B.M. Clagett, ‘The Expropriation Issue Before the Iran–United States Claims Tribunal:  Is “Just
Compensation” Required by International Law or Not?’ (1984) 16 Law & Pol’y Int’l Bus. 813; A.
Mouri, The International Law of Expropriation as Reflected in the Work of the Iran–U.S. Claims Tribunal
(Dordrecht, 1994); I. Seidl-Hohenveldern, ‘Evaluation of Damages in Transnational Arbitrations’
(1987) 33 Annuaire Francais de Droit International 7. For the extensive jurisprudence on property claims
of the Bosnia-Herzogovina human rights chamber, see Chapter 4.3.3 supra.
84
  The standard is based on the 1955 U.S.–Iran Treaty of Amity, Economic Relations and Consular
Rights which requires ‘prompt payment of just compensation’ in the event of one party taking property
belonging to a national of the other state: Treaty of Amity, Economic Relations, and Consular Rights
(U.S.–Iran) (adopted 15 Aug. 1955, entered into force 16 June 1957) 8 UST 899, TIAS No. 3853, 284
USTS 93. According to Art. IV(2), ‘[s]‌uch compensation shall be in an effectively realizable form and
shall represent the full equivalent of the property taken’.
85
  See e.g. American International Group, Inc. and Islamic Republic of Iran (1983-III) 4 CTR 96
(customary international law requires full compensation even in the case of a lawful nationalization).
Beginning with Phelps Dodge Corporation & Overseas Private Investment Corp. and Islamic Republic of
Iran (1986-I) 10 CTR 121 reprinted in (1986) 25 ILM 619, the tribunal has consistently applied the
bilateral treaty as a source of obligation governing compensation, finding it equivalent to the standards
previously applied. See Sedco, Inc. and National Iranian Oil Company and The Islamic Republic of Iran
(Interlocutory Award) (1986-I) 10 CTR 180, reprinted in (1986) 25 ILM 629 and annotated at (1986)
80 Am. J. Int’l L. 969 (the treaty is a relevant source of law and customary international law requires full
compensation).
86
  INA Corporation and Islamic Republic of Iran (1985-I) 8 CTR 373, annotated at (1986) 80 Am.
J. Int’l L. 181 at 385–6 (separate opinion of Langergren, J.).
87
  (1985-I) 8 CTR, 391, 399 (Holtzmann, J., concurring). Judge Ameli dissented from the award
stating that the principle of restitutio in integrum has no place in discussions of lawful expropriation: ibid
403 (Ameli, J., dissenting).
88
  Dodge, supra n. 85, (1986-I) 10 CTR, 130.
89
  Sedco, Inc., supra n. 85, 105, 203 (Brower, J., concurring).
90
  Amoco International Finance Corp. and Islamic Republic of Iran (Partial Award) (1987-II)15
CTR 189 at 244–7, reprinted in (1987) 27 ILM 1314 and (1990) 83 ILR 502, annotated at (1988) 82
Am. J. Int’l L. 358.
 International Tribunals 155

subsequent cases, however, the Chambers clearly and consistently applied the standard
of full compensation regardless of the lawfulness of the taking.
The early decision in the American International Group case91 rejected the Iranian
argument for book value as the proper standard, holding instead that ‘the appropriate
method is to value the company as a going concern, taking into account not only the
net book value of its assets, but also such elements as good will and likely future profit-
ability’.92 In INA Corp., Chamber One defined fair market value as:
the amount which a willing buyer would have paid a willing seller for the shares of a going concern,
disregarding any diminution of value due to the nationalization itself or the anticipation thereof,
and excluding consideration of events thereafter that might have increased or decreased the value
of the shares.93
The Tribunal consistently required payment that reflects the genuine economic
worth of the enterprise, taking into account relevant economic prospects of going
concerns,94 which requires valuing both tangible and intangible assets, including good-
will and commercial prospects.
Generally, the Tribunal applied the ‘discounted cash flow’ method of valuation, but
not without controversy.95 This approach values an income-producing asset on the basis
of its future rather than its past worth (cost, past profits, etc.). The analysis requires
a projection of the net cash flow over its useful life discounted to present value and
may take into account risk, inflation, and interest that might affect an investor’s deci-
sion. Evidence of an asset’s worth can be supplied through expert testimony, evidence of
transactions in comparable property, or past transactions involving the same property.
In Khosrowshahi and Islamic Republic of Iran96 the Chamber referred to nearly contem-
poraneous market prices for the shares in question as ‘the best available evidence’. Where
there is no market, the Tribunal must make an approximation or best estimate of the
future life and profitability of the company ‘in view of the relevant conditions’.
For land and other tangible property, fair market value represents the standard, but
the methods differ from those used to value going concerns. In SEDCO, the Chamber
stated that ‘[i]‌n determining the full value of tangible assets . . . our task is substantially
to determine the fair market value of the property, i.e., what a willing buyer and a will-
ing seller would reasonably have agreed on as a fair price at the time of the taking in
the absence of coercion on either party’.97 Finally, it should be noted that the expenses
incurred in the presentation and prosecution of a claim have been allowed as recoverable
damages in many, although not all, cases, the exceptions being mostly expropriation

91
  American Int’l Group, supra n. 85, 109.
92
  Ibid. Taking ‘all relevant circumstances’ into account, including reports by independent experts,
the Chamber fixed the value of the claim at $10 million (about 25% of the amount claimed) plus 8.5%
interest from the date of the taking.
93
  INA Corp., supra n. 86, (1985-I) 8 CTR, 380. The Chamber awarded INA $250,000, the full
amount it had claimed. The amount was what INA had paid for its investment in the company one
year prior to nationalization. Judge Lagergran did suggest that the standard for compensation might be
different in large-scale and lawful nationalizations: ibid, 378.
94
  Starrett Housing (Final Award) (1987-III) 16 CTR 112, 122. See INA Corp., supra n. 86, (1985-I)
8 CTR 373; Saghi and Islamic Republic of Iran, Award No. 544-298-2 (22 Jan. 1993); Amoco, supra
n. 90, (1987-II) 15 CTR, 270; American Int’l Group, supra n. 85, 109.
95
 See Starrett Housing, supra n. 94, 157; Phillips Petroleum and Islamic Republic of Iran and National
Iranian Oil Co. (1989-I) 21 CTR 79; contra Amoco (Partial Award) (1987-II) 15 CTR 189.
96
  Khosrowshahi and Islamic Republic of Iran, Award No. 558-178-2 (30 June 1994) para. 47.
97
  Sedco III (1987-II) 15 CTR 23 at 35. Decisions have allowed claims based on ‘net book value’
(Computer Sciences Corporation and Islamic Republic of Iran (1986-I) 10 CTR 269) and ‘replacement
value’ (Petrolane, Inc. and Islamic Republic of Iran (1991-II) 27 CTR 64, 101).
156 The Institutional Framework

cases. In the latter, a justified item is the cost of exhausting local remedies, including
court costs, translations, attorneys’ fees, and necessary travel costs.98 These expenses can
be established by affidavits, receipts, and certified court records. In some cases oppo-
nents have noted that such expenses were not recoverable under municipal law and the
claim was disallowed.

5.1.4  Interest
The principle that interest is due on losses is generally accepted and was established in
large part through reliance on domestic law. In the Russian Indemnity case, the Permanent
Court of Arbitration found that the law of European states and earlier Roman law recog-
nized the obligation to pay interest for delay in settling a legal obligation for the payment
of money.99 References to domestic law are most common in regard to awards of interest,
where the rates of interest in particular states, most often the wrongdoing state, are those
used in the award.100 In theory, using the wrongdoing state’s interest rate is correct, based
on the expectations of both the state and the injured party. In the Georges Pinson case,101
however, the panel held that private law had no direct relevance to the question of inter-
est under the independent and entirely different sphere of international law.
The French–Mexican Commission looked to prior international practice, deciding
that interest at the rate of 6 per cent per annum would be added to any claim where
liability was based on principles of international law rather than on a promise ex gratia.102
The United States–Mexican Claims Commission began by awarding interest in three
contract cases, without discussion,103 and, in the Illinois Central case104 the Commission’s
award of interest was deemed ‘a proper element of compensation’ because, it said, the
purpose of the Convention was to afford nationals of both parties ‘just and adequate
compensation for their losses or damages’.105 Just compensatory damages meant not
only the sum due under a contract but compensation for the loss of the use of that sum
during the relevant period of time. Interest was not allowed on claims for personal inju-
ries or wrongful death.

5.1.5  Satisfaction
In a broad sense, satisfaction applies to every form of redress repairing non-pecuniary
wrong.106 Satisfaction may be any measure that the author of a breach is bound to take
including: (a) apologies or other acknowledgment of wrongdoing; (b) prosecution and

98
 Whiteman, supra n. 6, iiI, 2020–8. 99
  Russia–Turkey (1912) 11 RIAA 421, 442.
100
  Delagoa Bay Railway Company Case, Moore, Digest, supra n. 23, vi, 1865; Orinoco Steamship
Company Case, United States–Venezuela (1909) 9 RIAA 421, 442; Religious Properties Case, France,
U.K. and Spain–Portugal (1920) 1 RIAA 7.
101
  Pinson Case, France–Mexico (1928) 5 RIAA327, 448. 102
 Ibid.
103
  U.S.A. (John B. Okie) v. United Mexican States, Opinions of Commissioners, 1927, 61; U.S.A.
(William A. Parker) v. United Mexican States, Opinions of Commissioners, 1927, 82; U.S.A. (J. Parker
Kirlin) v. United Mexican States, Opinions of Commissioners, 1927, 162.
104
  U.S.A. (Illinois Central R.R. Co.) v. United Mexican States, Opinions of Commissioners 1927, 187.
105
 Ibid, 189.
106
  Tanzi asserts that forms of reparation for non-material injuries are within the sphere of satis-
faction: A. Tanzi, ‘Is Damage a Distinct Condition for the Existence of an Internationally Wrongful
Act?’, in M. Spinedi and B. Simma (eds.), UN Codification of State Responsibility (New York, 1987),
1–33. See also E. Riedel, ‘Satisfaction’ in R. Bernhardt (ed.) 10 Encyclopedia of Public International Law
(1987) 383.
 International Tribunals 157

punishment of the individuals concerned; (c) taking measures to prevent a recurrence

of the harm; and (d) performing symbolic acts of atonement. It is not an alternative to
compensation. Satisfaction may include injunctive relief to preclude continuation or
repetition of the breach or to establish accountability. Disclosure of the truth following
an official and thorough factual investigation also is important. The most common types
of satisfaction are apologies, punishment of the guilty,107 assurances as to the future, and
pecuniary satisfaction. In practice, money also has been paid as part of an apology.108
There is no agreement on the rationale for measures of satisfaction. Some focus on
prevention or deterrence. Graefrath calls satisfaction ‘[a]‌ll measures taken by the author
State of an internationally wrongful act to affirm the existence of the affected obligation
and to prevent continuation or repetition of the wrongful act’.109 Borchard similarly
says: ‘the inarticulate purpose of such damages, which may or may not be actually com-
pensatory, must involve the theory that by such penalty the delinquent government will
be induced to improve the administration of justice and the claimant government given
some assurance that such delinquencies, to the injury of its citizens, will, if possible, be
prevented in the future’.110 Most commentators view satisfaction as compensatory, serv-
ing to repair non-pecuniary injury to honour and dignity, i.e. moral injury.111
With less agreement, some argue that satisfaction is essentially punitive in nature.
Vattel was perhaps the first to speak of punitive damages in international law: ‘Finally,
the offended party have [sic] a right to provide for their future security and to chastise the
offender, by inflicting upon him a punishment capable of deterring him thenceforward
from similar aggressions, and of intimidating those who might be tempted to imitate
him’.112 This form of punishment, through proportionate reprisals involving the use of
force, is now prohibited because of the dangers inherent in a unilateral determination
of punishment. Nonetheless the retributive interest in some form of punitive measure
remains and suggests the possibility of an award of punitive or exemplary damages in
appropriate cases.
Modern scholarly opinion is divided over the appropriateness of punitive and exem-
plary damage awards in international claims. Personnaz notes the conflicting doctrine
and state practice,113 but accepts that punitive measures do exist. Garcia-Amador, on the
other hand, asserts that ‘international tribunals and claims commissions have at times
expressly and categorically denied that reparations for injuries caused to aliens can be
punitive in character’, citing the Lusitania cases. Commissioner Parker explicitly stated
that ‘the fundamental concept of damages is satisfaction, reparation for a loss suffered’.
Eagleton responds that refusals to award punitive damages usually have been based on
the jurisdictional limits of the tribunal contained in the compromis, not on theoretical
objections.114 Whiteman indicates that punitive damages based upon aggravated assaults

107
  In the case of Dr Shipley, the USA stated that an apology was the minimum to be afforded where
an American national was assaulted and robbed by a Turkish policeman. The USA said it might also
demand the dismissal of the policeman: Moore, Digest, supra n. 23, vi, 746–7.
108
  See Bollecker-Stern, supra n. 65, 185–223. In the Corfu Channel Case (United Kingdom v. Albania)
(Assessment of Compensation) [1949] ICJ Rep. 244 the measure was the actual losses. Contrast I’m
Alone (Canada v. United States) (1935) 3 RIAA, 1609, discussed infra.
109
  B. Graefrath, ‘Responsibility and Damages Caused: Relationships between Responsibility and
Damages’ (1984) 185 Receuil des Cours 69, 86.
110
  E.M. Borchard, ‘Important Decisions of the Mixed Claims Commission, United States and
Mexico’ (1927) 21 Am. J. Int’l L. 518.
111
  See Gray, supra n. 7, 41. 112
  Em. de Vattel, bk. II, s. 52.
113
  J. Personnaz, La reparation du préjudice en droit international (Paris, 1938), 303–5.
114
 Eagleton, supra n. 17. Parker explicitly based his refusal to consider punitive damages in the
Lusitania Cases on the terms of the Charter and the Treaty of Berlin: Lusitania Cases, supra n. 14, 41.
158 The Institutional Framework

or grave injustices are sometimes allowed115 and posits that where they are denied in
injury to aliens cases it stems from the fact that in many of those cases the wrong was
committed by someone other than an official of the state. The failure to investigate,
try, and punish is usually deemed free of the malice or serious intentional wrong which
justifies an award of punitive damages.116 In this regard, many human rights cases can be
distinguished because of the deliberate governmental policy involved in the violations.
Most authors are cautious. ‘In some cases’, writes Ralston, ‘the umpires have refused in
terms the granting of punitive awards, indicating by suggestion at least that they would,
the circumstances permitting, entertain the idea, although, as we have said, the power to
inflict such damages has never been expressly claimed’.117 Some argue that all remedies are
repressive.118 Judge Ammoun, in his separate opinion in the Barcelona Traction case, referred
to the repressive nature of certain reparations, which lead them to have a punitive charac-
ter.119 Even if the accepted rationale for measures of satisfaction is compensatory, to repair
moral injury, the measure of the damages most likely will involve an element of condemna-
tion that will vary according to the nature of the wrong. The greater the wrong, the greater
the moral outrage and the greater the indemnity awarded to express disapproval of the act.120
According to Borchard, ‘[p]‌unitive or exemplary damages have been demanded by
the United States and Great Britain in numerous cases where the injury to its citizens
consisted in a violent and inexcusable attack on their lives or property, where the defend-
ant government seemed criminally delinquent or where the citizen occupied a position
carrying national dignity, such as a consul’.121 Van Boven, on the other hand, comments
that ‘the possibility of punitive or exemplary damages is a matter of some debate in inter-
national law. It is generally believed, however, that the imposition of such damages go
beyond the jurisdiction conferred on the International Court of Justice and beyond the
jurisdiction normally attributed to arbitral tribunals’.122
In state practice, measures of satisfaction have frequently been demanded by the state
of nationality in cases involving injury to the person of aliens.123 In the majority of cases,
punishment of the guilty persons has been requested, either alone or in conjunction with
other measures of satisfaction. Most of the cases relate to arbitrary expulsion, unlawful
arrest or imprisonment, bodily injury, loss of life, or exceptionally serious denials of
justice. States most often demand the punishment of the perpetrator in cases of death.124

115
 Whiteman, supra n. 6, 722. 116
 Ibid 716. 117
 Ralston, supra n. 6, s. 174.
118
  Georges Berlia, ‘De la responsabilite internationale de l’Etat’, in Etudes en L’Honneur de Georges
Scelle (Paris, 1950), 875.
119
  Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) [1970] ICJ 3, Separate
opinion of Judge Ammoun, 292.
120
  G. Cohn, ‘La theorie de la responsabilite internationale’ (1939) 68-II Receuil des Cours 321.
121
 Borchard, supra n. 4, 419. For examples where punitive or exemplary damages have been claimed
and awarded, see e.g. Boxer Indemnity of 1900, For. Rel. 1901, Appendix; Murder of French and German
Consuls in Salonica, 1876, 65 ST. PAP. 949; Lienchou Rios, 1904, For. Rel. 1906, 308, 319.
122
  Th. van Boven, Study Concerning the Right to Restitution, Compensation and Rehabilitation for
Victims of Gross Violations of Human Rights and Fundamental Freedoms, Preliminary Report submitted
by Theodoor van Boven, Special Rapporteur, E/Cn.4/Sub.2/1990/10, (26 July 1990), 6.
123
  For a case of property damage see the Natalia Sugar Plantation (1897). Spanish forces occupied,
looted, and destroyed the property of three United States citizens in Cuba. In a note to the Spanish
Minister at Washington, the United States Secretary of State asserted that the acts in question violated
treaty rights of the United States citizens and the ordinary rules of war. The USA requested not only that
full compensation should be made to the individuals concerned, but that the matter should be investi-
gated, the guilty persons punished and strict orders given to prevent the recurrence of such acts: Natalia
Sugar Plantation (1897), Moore, Digest, supra n. 23, vi, 970.
124
 See Frank Pears (1900), Moore, Digest, supra n. 23, vi, 762; Webber (1895), Moore, Digest, supra
n. 23, vi, 746, and W. Wilson (1894), Moore, Digest, supra n. 23, vi, 745–6. In the Webber case, the USA
also demanded that Turkey remove the governor of the prison where the United States national died as
a result of ill-treatment.
 International Tribunals 159

In an even greater number of cases, satisfaction is afforded in the form of assurances or

guarantees against repetition of the wrongful acts. Sometimes this takes the form of
guarantees or assurances of the enactment of legislation.125
Some international tribunals consider a declaratory judgment as an act of satisfaction
where this is requested by the parties. Declaratory judgments may be useful where the
act or omission imputed to the state is unlawful but where there is no material injury suf-
fered or it is not possible to prove the injury. In general, however, a declaration of wrong-
doing is rarely sufficient to remedy the harm done to an individual, national or alien.
This is perhaps why recourse to declarations has been late in coming to international
adjudication and particularly limited in cases involving state responsibility for injury to
aliens.126 In the Carthage and Manouba cases,127 the tribunal considered that a declara-
tion constituted satisfaction for breach of an obligation, refusing to award the damages
sought by France as reparation for the moral and political injury it suffered. The tribunal
stated that the establishment of the violation, ‘especially in an arbitral award, constitutes
in itself a serious penalty and this penalty is made heavier in such case by the payment
of damages for material losses’.128 The International Court of Justice issued a declaration
in the Corfu Channel case, but noted that it was ‘in accordance with the request made
by Albania through her Counsel’.129 In the Nuclear Test cases,130 the ICJ asserted that
‘a declaration is a form of “satisfaction”’ independent of any claim to compensation’.131
Also noteworthy, the line between a declaratory judgment and an order to take action is
sometimes blurred. The ICJ, for example, ‘declared’ in one case that a state was ‘under
a duty immediately to cease and refrain from all such acts as may constitute breaches of
the foregoing legal obligations’.132
Pecuniary satisfaction has been claimed and awarded often. In connection with the
murder of a missionary in Persia, the USA asserted a claim for ‘the remedial reparation
due to the widow’ and ‘the exemplary redress due to the Government of the United
States’. Other cases awarded a sum specified to include compensation plus satisfaction.133
Some agreements establishing Mixed Commissions have empowered the commissions
to settle pending claims with pecuniary satisfaction.134 In the Stephens case, the General
Claims Commission contrasted the role of satisfaction and that of compensatory dam-
ages, noting that if the plaintiffs proved the injustice for which Mexico is liable, ‘the
claimants shall be entitled to an award in the character of satisfaction, even when the
direct pecuniary damages suffered by them are not proved or are too remote to form a
basis for allowing damages in the character of reparation (compensation)’.135 Excessive
demands may be refused.136
Sometimes pecuniary reparations of a punitive or exemplary character are awarded
in unequivocal terms. One claim against Panama sought ‘such measure or redress as will

125
 Moore, Digest, supra n. 23, vi, 30.
126
  See Gray, supra n. 7, 17. As the author notes, declaratory judgments are not discussed by early
writers on reparations in international law.
127
  (France v. Italy) (1913) 11 RIAA, 460, 475.
128
  J.B. Scott, Les travaux de la cour permanente d’arbitrage de la Haye (The Hague, 1921), 356–7.
129
  Corfu Channel Case, supra n. 2, 36.
130
  Australia v. France; New Zealand v. France [1974] ICJ Rep. 253. 131
  Ibid, para. 18.
132
  Case Concerning Military and Paramilitary Activities against Nicaragua (Merits) [1986] ICJ Rep.
149, para. 12.
133
  See e.g. Maninat Case (1903) in J. Ralston, French–Venezuelan Arbitrations (1906), 78.
134
  See Ralston, supra n. 18, 643. 135
  Stephens Case (1927) 4 RIAA, 266.
136
  See Eagleton, supra n. 17, 304 for a case in which the measures demanded included an investiga-
tion conducted according to stringent conditions; imposition of the death penalty on the perpetrators;
and payment of a large indemnity within five days of the demand.
160 The Institutional Framework

be amply compensatory to the persons aggrieved or to their dependents, sufficiently

exemplary for the grave offence, and strongly deterrent against similar occurrences in
the future’.137 The United States–Mexican Claims Commission sometimes said its award
was based on a desire to condemn.138 Other tribunals have accepted the award of puni-
tive damages in theory, but found that the facts of the cases did not indicate such an
award to be warranted.139 In one domestic case involving an international dispute, The
Mariana Flora,140 the court said ‘an attack from revenge and malignity, from gross abuse
of power, and a settled purpose of mischief . . . may be punished by all the penalties which
the law of nations can properly administer’.
In some cases where moral damages were assessed, it in fact appears that the amounts
were indicated as a penalty. In the Maal case, the Netherlands was awarded damages for
the indignity suffered by one of its nationals stripped in public by Venezuelan police
officials. In the Roberts claim, Mexico paid the USA $8,000 for seven months of illegal
imprisonment of the claimant, a substantial portion of the damages relating to Roberts
having been subjected to cruel and degrading treatment during the period of imprison-
ment. In other cases, the USA expressly renounced the claim of punitive damages.141
This prior practice suggests that in theory a penalty may be assessed against a delinquent
state for particularly serious breaches of human rights, although it might be based on the
measure of the wrong to the international community, not the individual.
In Moke’s Case, punitive damages were clearly assessed:
The forced loans were illegal; the imprisonment was only for one day, and resulted in no actual
damage to claimant or his property; but we wish to condemn the practice of forcing loans by the
military, and think an award of $500 for 24 hours’ imprisonment will be sufficient . . . If larger
sums in damages, in such cases, were needed to vindicate the right of individuals to be exempt
from such abuses, we would undoubtedly feel required to give them.142
Given that the standard of the day was $100 for 24 hours’ imprisonment, it seems
clear that there were elements of sanction or punishment in the case.
In the I’m Alone case (1935)143 the Joint Final Report of the Commissioners found
that the sinking of a Canadian ship by a United States coast guard vessel was an unlaw-
ful act and called on the USA formally to acknowledge its illegality and to apologize
to the Canadian government. Further, ‘as a material amend in respect of the wrong’,
the Commission recommended payment of the sum of $25,000. Britain demanded
penalties after the Lienchou riots and the murder of its consuls at Salonica.144 The USA
claimed them in the Labaree case and France did so in the Mannheim case, where it
received one million francs in amende in addition to 100,000 francs for the victim’s
family. In the case of the Aerial Incident of 2 July 1955, before the International Court
of Justice, the United States government argued for a broad view of reparations in the
context of the shooting down of a civilian aircraft:

137
  Foreign Relations of the United States (1909), 476.
138
  Moke Case, in Moore, International Arbitrations, supra n. 6, iv, 3411.
139
  See e.g. the Delagoa Bay Railway Company Case, supra n. 100; Cheek’s Case, United States v. Siam,
1898 in Moore, International Arbitrations, supra n. 6, 1899, 5068; Metzger and Torrey, United States
v. Venezuela,(1903) 9 RIAA 225.
140
  24 U.S. (11 Wheat.) 1, 6 L.Ed. 405 (1826).
141
 Moore, International Arbitrations, supra n. 6, iv, 3411. 142
  3 RIAA, 1609, 1618.
143
  The ‘I’m Alone’, supra n. 108. See For. Rel. (1906), ss. 808–10; for the Salonica matter, (1991) 65
British and Foreign State Papers 949.
144
  I. Fauchille, Traite de droit international public (Paris, 1922), 528.
 International Tribunals 161
If we were to follow only the compensatory theory of civil damages in general, we might conceiv-
ably reach a point where no damages would be payable, though treacherous murders were com-
mitted internationally by one government on the nationals of another government. Additional
amends to the injured government are therefore desirable and even necessary . . . The whole prob-
lem of the freedom of the air and the safety of the nationals of all governments from murderous
attack by the government of overflown terrain is involved.145
The USA asked for an additional $100,000 for the principle of the freedom of the air.
No judgment issued.
Another example of apparent exemplary damages can be found in the Rainbow
Warrior case.146 The matter involved the sinking of a ship in Auckland harbour in
1985 by agents of the French security services who used false Swiss passports to enter
New Zealand. New Zealand demanded a formal apology from France and payment of
US$10 million, a sum that far exceeded the value of material losses sustained. The case
was ultimately submitted to the Secretary-General of the United Nations, who decided,
inter alia, that France should pay US$7 million.147
In sum, states in diplomatic claims have often demanded punitive or exemplary dam-
ages as a form of satisfaction.148 In most cases tribunals admit to the theoretical pos-
sibility of making the award, but usually refuse to do so, either because they view their
specific powers as limited or because the facts are deemed not to warrant the award
sought.149 Some of the cases have involved a strong state making demands of a weaker
one, but clearly many states consider it appropriate to demand an award in the nature of
a sanction for the commission of outrageous illegal acts.
Today, aliens have recourse to international human rights procedures for many
traditional claims, while claims commissions and lump sum agreements take care of
other cases. Lump sum agreements serve to settle property claims through negotiation
and compromise, most frequently in reference to nationalization and expropriation.
Personal injury or death, which was at the origin of most pre-Second World War state
responsibility claims and is perhaps most analogous to a serious human rights claim, is
not commonly covered by the lump sum settlement agreements,150 although two such
agreements provide examples of remedies for private violence: the United States–Panama
Agreement, Article 1(b) of which terminated ‘claims . . . for personal injuries sustained
by six soldiers of the United States Army during disturbances which occurred in the city
of Panama in the year 1915’;151 and the British–Indonesian Agreement, which in para-
graph 1(c) settled claims of the British government and of British nationals ‘in respect

145
  1958 ICJ Memorials, Memorial of the United States, 246–8.
146
  Rainbow Warrior Case, Decision of 30 Apr. 1990 by the France–New Zealand Arbitration
Tribunal, (1990) 82 ILR 573.
147
 Ibid.
148
  See Eagleton, supra n. 17, 62–3; I.C. Hyde, International Law Chiefly as Interpreted and Applied
by the United States (1951) 75, 515; Borchard, supra n. 4, s. 174.
149
  In the Lusitania Cases, the tribunal refused because of the specific agreement, although the arbi-
trator opposed punitive damages in general in international law. Parker expressed his belief that the
‘fundamental concept of damages is satisfaction, reparation for a loss suffered, a judicially ascertained
compensation for wrong’: Lusitania Arbitration, supra n. 14, 39. In the case concerning German respon-
sibility for acts committed after 31 July 1914 and before Portugal participated in the war, Portugal
claimed an indemnity of 2 million marks because of all the offences against its sovereignty and for attacks
on international law: 2 RIAA 1076. The arbitrators rejected this as being neither a claim for material nor
moral damage, but a sanction, a penalty inflicted on the guilty state and inspired by ideas of retribution,
warning, and intimidation.
150
  Lillich and Weston, supra n. 16, 175.
151
  United States–Panama, signed 26 Jan. 1950, entered into force 11 Oct. 1950, 1 UST 685, TIAS
No. 2129, 132 UNTS 233; Lillich and Weston, supra n. 16, 35.
162 The Institutional Framework

of loss or damage suffered, directly or indirectly, during or as a consequence of the riots and
public disorder in Indonesia between 10 and 30 September 1963’.152 A study of sixty-nine
other agreements concluded between 1975 and 1995 found that they generally were not
used to provide compensation for personal injury and death.153 Cases interpreting the
Iran–United States claims agreement,154 for example, held against claimants seeking redress
for wrongful death and personal injuries.155
In sum, the procedures for obtaining reparations for injury to aliens traditionally rested
upon the terms of arbitration agreements or treaties setting up mixed claims commissions.
In most cases, the states involved did not dictate the scope or nature of the remedies to be
afforded, leaving it to the judgment of the arbitrator or commissioner to draw upon relevant
domestic and international legal principles. In recent cases, arbitral tribunals or commis-
sions have exercised inherent judicial power to fashion remedies.
It must be recalled that the state making the claim is in theory asserting its own injury and
not necessarily representing the individual by presenting all the damages a person may have
suffered. The decisions on reparations can be seen as somewhat analogous to remedies for
human rights violations, but the inter-state element is important, especially the role played
by the respective power of the two states and their views in each case.

5.2  The International Court of Justice

States have requested the ICJ and its predecessor PCIJ to award remedies that include res-
titution, compensation, specific performance, satisfaction, and injunctive relief, including
guarantees of non-repetition. Compensation was pleaded in about one-third of the cases
submitted to the PCIJ156 and, more recently, the number of requests to the ICJ for various
forms of reparations seems to be increasing.157 Nonetheless, the two courts together have
made only three monetary awards: in the Wimbledon case,158 the Corfu Channel case,159
and the Diallo case.160 In the Iranian Hostages case,161 the court issued an order, without

152
  Great Britain–Indonesia, 1 Dec. 1966, GBTS No. 34 (Cmnd. 3277) 606 UNT 125, Lillich and
Weston, supra n. 16, 336.
153
  B. Weston, R. Lillich, and D. Bederman, International Claims: Their Settlement by Lump Sum
Agreements, 1975–1995 (Charlottesville, 1999), 65.
154
  Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning
the Settlement of Claims by the Government of the United States of America and the Government of the
Islamic Republic of Iran, 19 Jan. 1981, 1 Iran–US CTR (1981–82), reprinted in 20 ILM 230 (1981).
155
 See Grimm v. Iran, Case No. 71, 18 Feb. 1983, 2 Iran–US CTR 78 (1983-I) (rejecting widow’s
claim for husband’s killing) and Haddadi v. United States, Case No. 763, 31 Jan. 1985, 8 Iran–US CTR
20 (1985-I) (denying claim for personal injuries).
156
  C. Gray, ‘Is there an International Law of Remedies?’ (1985) 65 Brit. Y.B. Int’l L. 25, 36.
157
  Recent cases at the ICJ asking for reparations include: Avena and other Mexican Nationals (Mex.
v. U.S.) [2004] lCJ 12; LaGrand (Germany v. United States); Fisheries Jurisdiction (Spain v. Canada);
Armed Activities on the Territory of the Congo (Congo v. Uganda; Congo v. Rwanda; Congo v. Burundi),
Gen. List No. 116, 82 (ICJ 19 Dec. 2005); Case Concerning the Land and Maritime Boundary Between
Cameroon and Nigeria (Cameroon v. Nigeria); Aerial Incident of 10 August 1999 (Pakistan v. India);
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzogovina v. Yugoslavia);
Aerial Incident of 3 July 1988 (Iran v. United States); Case Concerning the Gabčikovo-Nagymaros Project
(Hungary v. Slovakia) [1997] ICJ 7; and the Arrest Warrant Case, supra n. 32; Case Concerning United States
Diplomatic and Consular Staff in Teheran (U.S. v. Iran) [1980] ICJ 3 [hereinafter Iran Hostages Case].
158
  The S.S. Wimbledon Case (Great Britain, France, Italy, Japan and Poland, intervening, v. Germany)
[1923] PCIJ (ser. A/B) No. 5.
159
  Corfu Channel Case, supra n. 2.
160
  Ahmadou Sadio Diallo, supra n. 30. For a commentary, see Geir Ulfstein, ‘Awarding Compensation in
a Fragmented Legal System: The Diallo Case’, (2013) 4 Journal of International Dispute Settlement 477–485.
161
  Iran Hostages Case, supra n. 157.
 International Tribunals 163

discussing its jurisdiction to do so, after finding that Iran had violated its international
obligations to the USA. In its decision, the Court decided that the government of Iran ‘must
immediately take all steps to redress the situation’ and ‘to that end’:
a) must immediately terminate the unlawful detention of the United States Chargé
d’Affaires and other diplomatic and consular staff and other United States nation-
als now held hostage in Iran, and must immediately release each and every one and
entrust them to the protecting Power . . .
b) must ensure that all the said persons have the necessary means of leaving Iranian
territory, including means of transport
c) must immediately place in the hands of the protecting Power the premises, prop-
erty, archives and documents of the United States Embassy in Teheran and of its
Consulates in Iran.162
Guarantees of non-repetition have also been sought and awarded, albeit less often
in inter-state proceedings than in human rights cases where they can be particularly
important to the individual applicant still in the jurisdiction of the violating state.163 In
the LaGrand case, Germany sought both general and specific assurances and guarantees
of non-repetition from the United States for its admitted failure to provide the consular
notification to detained aliens required by Article 36 of the 1963 Vienna Convention on
Consular Relations. The Court held that the express commitment by the United States
to ensure implementation of measures to comply with Article 36 ‘must be regarded as
meeting Germany’s request for a general assurance of non-repetition’.
As a matter of general international law, the PCIJ formulated the basic principles of
redress in the Chorzów Factory case:
reparation must, as far as possible, wipe out all consequences of the illegal act and re-establish
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 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.164
The ICJ has indicated that the basic principle of reparation articulated in the Chorzów
Factory case applies to reparation for injury to individuals, even when the statute of a
tribunal contains a specific jurisdictional provision on reparation.165 International tribu-
nals have inferred from this foundation an inherent judicial power to afford remedies.
States are increasingly bringing to the ICJ diplomatic protection cases and requests
for advisory opinions that concern human rights matters. The Wall request in 2004166
and the Genocide case of 2007,167 for example, have led the ICJ to devote attention to the
jurisprudence of other courts and tribunals, especially human rights tribunals.

162
 Ibid, 44–45.
163
  In addition to the claim made in the LaGrand case, discussed in the text, guarantees against rep-
etition were requested by both sides in the Gabčikovo-Nagymaros Project, supra n. 157, paras. 13, 14.
164
  Factory at Chorzów Case, supra n. 1, 47.
165
  Application for Review of Judgment No. 158 of the UNAT (Advisory Opinion) [1973] ICJ
Rep. 197–8 (12 July).
166
  Legal Consequences of Construction of Wall in Occupied Palestinian Territory (Advisory Opinion)
[2004] ICJ Rep. 136, 198 (July 9) (finding Israel must make reparations for damages caused by illegally
constructing the wall).
167
  See, e.g., Armed Activities on Territory of Congo, supra n. 157; Avena supra n. 157, 59-60; Arrest
Warrant, supra n. 32, 31–32; Gabcikovo-Nagymaros, supra n. 157, 80–81.
164 The Institutional Framework

The 2012 reparations judgment in the Diallo Case is particularly instructive on repa-
rations for human rights violations, being a matter of diplomatic protection brought
by the Government of the Republic of Guinea (‘Guinea’) on behalf of Amadou Sadio
Diallo against the Democratic Republic of Congo (‘DRC’). The Application alleged
‘serious violations of international law’ occurred when the DRC unjustly imprisoned
Diallo, deprived him of his property (companies,168 movable and immovable property,
and bank accounts), and then wrongfully expelled him from the State.
In 2010, the ICJ held on the merits that the DRC had violated Article 13 of the
International Covenant on Civil and Political Rights (ICCPR) and Article 12(4), of the
African Charter on Human and Peoples’ Rights (African Charter HPR). The Court also
found that Diallo’s arrest and detentions preceding his expulsion violated ICCPR Article
9(1) and (2), and Article 6 of the African Charter HPR. In the merits judgment, the ICJ
commented that the scope of diplomatic protection now encompasses internationally
guaranteed human rights.169
On the merits, the Court noted that it accorded ‘great weight’ to the practice of the
Human Rights Committee because of its specific mandate to supervise the application
of the ICCPR.170 It similarly said that in applying a regional human rights instrument, it
would take ‘due account’ of the decisions of the relevant monitoring body. In this regard
the Court revealed its concern with avoiding conflicting decisions on the meaning or
scope of the relevant norms, expressly referring to the need ‘to achieve the necessary clar-
ity and the essential consistency of international law, as well as legal security’.171
In terms of reparations, the Court found that compensation was appropriate ‘[i]‌n
light of the circumstances of the case, in particular the fundamental character of the
human rights obligations breached and Guinea’s claim for reparation in the form of com-
pensation’.172 This phrase does not make clear whether the Court considers all human
rights obligations to be fundamental or only particular obligations, including those vio-
lated in this case. In any event, the Court referred to the Chorzow Factory case to indi-
cate that the amount of compensation was to be based on ‘the injury flowing’ from Mr
Diallo’s wrongful detentions and expulsion, including the resulting loss of his personal
belongings’.173
After the parties failed to reach an agreement on compensation,174 the Court issued a
judgment on reparations in 2012.175 The ICJ awarded US $85,000 as compensation for
non-material injury based on ‘equitable considerations’. For material injury, the Court
found that the full claims for loss of personal property and of income were not supported
by the evidence, but nonetheless awarded US$10,000 for loss of property, also based on
‘equitable considerations’. It awarded post-judgment interest to Guinea, but decided
that each of the parties should bear their own costs, per the Court’s Statute.
In determining the general principles governing compensation, the Court took
into account the practice of other international tribunals, including the International

168
  The Court declared the Application inadmissible with respect to the companies, but admitted
the remaining claims. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)
(Preliminary Objections, Judgment) [2007] ICJ Rep. 582.
169
  Ahmadou Sadio Diallo (2010), 39. 170
 Ibid, para. 66.   171 Ibid.
172
 Ibid, para. 161.    173  Ibid, para. 163.
174
  In its merits judgment of 2010, the Court instructed the parties to attempt to reach agreement on
reparations. Their positions were very far apart: in its memorial to the ICJ, Guinea demanded compen-
sation US$11,590,148. The DRC offered US$30,000.
175
  Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo, Compensation
Owed by The Democratic Republic Of The Congo to the Republic of Guinea, ICJ, Judgment of
19 June 2012 [hereinafter Diallo 2012].
 International Tribunals 165

Tribunal for the Law of the Sea, the European Court of Human Rights (ECtHR),
the Inter-American Court of Human Rights (IACtHR), the Iran-United States
Claims Tribunal, the Eritrea-Ethiopia Claims Commission, and the United Nations
Compensation Commission.176 The Court appeared to assume that all these tribunals
apply ‘general principles governing compensation’, and did not examine whether the
respective mandates of the tribunals create specific rules on reparations.
The ICJ focused on the causal link between the wrongful act and Diallo’s claimed
injuries. According to the Court there ‘must be a sufficiently direct and certain causal
nexus between the wrongful act . . . and the injury suffered by the applicant’.177 Although
in general the burden of proof to establish a causal link lies on the applicant, the Court
accepted the need in this case for flexibility, because the expulsion and confiscation
meant that the DRC might be better placed to establish certain facts. This important
understanding is also applicable to human rights cases where the responsible govern-
ment is often not only better placed to provide evidence, but is the only source of proba-
tive material.178
The Court relied on human rights law in accepting that non-material injury may take
different forms, including mental suffering and loss of reputation, citing decisions of a
claims commission and the Inter-American Court of Human Rights. As human rights
bodies have done, the ICJ held that such non-material injury can be established even
without specific evidence and can be presumed from the nature of the violation. The
ICJ found that the DRC caused ‘significant psychological suffering and loss of reputa-
tion’, aggravated by the state’s motivation: evidence showed the likelihood of a link
between Diallo’s actions to recover debts from the predecessor Zairean state, including
state-owned companies, and his arrest, detention and explulsion.
The Court commented that the ‘[q]‌uantification of compensation for non-material
injury necessarily rests on equitable considerations’, citing the practice by the United
States/Germany Mixed Claims Commission, the Human Rights Committee, the
African Commission on Human and Peoples’ Rights, and other arbitral tribunals and
regional human rights courts. The Court referred specifically to the means of quantify-
ing compensation for non-material harm used by the European Court of Human Rights
and the Inter-American Court of Human Rights.
The Court awarded ‘appropriate compensation’ of US$85,000 on the basis of the ‘cir-
cumstances outlined’. The Court did not point to factors that would indicate why this
sum was considered ‘appropriate’ other than the ‘aggravating’ link previously mentioned.
In his separate opinion Judge Greenwood stated that ‘the sum awarded by the Court in
respect of moral damage is higher than might be expected when one bears in mind the
sums awarded by other international courts and tribunals, especially those with the most
extensive experience of determining compensation for violations of human rights’.179
Judge ad hoc Mahiou180 on the contrary felt that the compensation for non-economic
damage should have been higher.
The Court examined material injury in three categories of loss: personal property,
income, and potential earnings related to the value of the companies. Based on its 2007

176
  Diallo 2012, supra n. 175, para. 13.
177
  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), ICJ Rep. 2007 (I), 233–234, para. 462.
178
  See, e.g., IACHR, Res. 12/80, Case 3358 (Argentina), Annual Report of the Inter-Am.Commn
H.R. 1979–1980, OEA/Ser.G.CP/doc.1110/80 (1980) 70–74.
179
  Diallo 2012, supra n. 175, Separate Declaration Judge Greenwood, para. 11.
180
  Diallo 2012, supra n. 175, Separate Opinion Judge ad hoc Mahiou, para. 13.
166 The Institutional Framework

decision declaring issues related to the value of the companies inadmissible, the Court
rejected the claim for potential earnings from them. The claim for personal property
concerned furnishings, other high value items said to be in Diallo’s apartment, and bank
accounts. The other claim was for loss of income due to the days Diallo was wrongfully
imprisoned. The Court agreed that such loss may in principle be recovered, according to
the case law of human rights courts and the United Nations Compensation Commission,
but cannot be purely speculative.181
The ICJ noted that Guinea offered no evidence regarding the lost property or its value.
Rather than completely reject the claim, however, the Court presumed that because
Mr Diallo lived in the DRC for over 30 years, he must have accumulated personal
property which, at a minimum he would have had to transport to Guinea or make
arrangements for in the DRC. Thus presuming some material damage due to the DRC’s
unlawful conduct, the Court awarded compensation of US$10,000 based on ‘equitable
considerations’. Again, the Court invoked the practice of other courts, including the
European Court of Human Rights and the Inter-American Court of Human Rights.182
It did so as well in awarding post-judgment interest at an annual rate of 6% for any delay
in the payment of the compensation. Finally, the Court made clear that the compensa-
tion awarded to Guinea was intended to provide reparation for Diallo’s injury, suggest-
ing an obligation on the part of the government to ensure that he receives any payment
made by the DRC.
The other significant recent discussion of reparations came in the ICJ’s advisory opin-
ion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, where the Court suggested that the consequences of state responsibility require
Israel to compensate all natural or legal persons harmed by the wall, even those without a
state able to institute a claim of diplomatic protection. The violations of primary obliga-
tions of human rights and international humanitarian law trigger the duty to compen-
sate all those individuals whose rights were violated.183
According to the same principles of state responsibility, restitution should be
afforded when possible, and should be the preferred or normal remedy. Decisions
of international tribunals, however, are not entirely consistent on this point, nor are
commentators.184 In the Temple of Preah Vihear case,185 the International Court of Justice
ruled that Thailand had to leave the unlawfully occupied temple circle in Cambodia

181
  Diallo 2012, supra n. 175, para. 39, citing European Court of Human Rights. Teixeira de Castro
v. Portugal, 1998‑IV, paras. 46–49, Inter-American Court of Human Rights, Suarez‑Rosero v. Ecuador,
Series C, No. 44 (1999), para. 60, and United Nations Compensation Commission Governing
Council, Report and Recommendations Made by the Panel of Commissioners concerning the
Fourteenth Instalment of ‘E3’ Claims, United Nations doc. S/AC. 26/2000/19 (2000), para. 126. It
may be appropriate to estimate income if the amounts cannot be calculated precisely. See, e.g., European
Court of Human Rights, Elci and Others v. Turkey (judgment of 13 November 2003) ECtHR, para.
721; Inter-American Court of Human Rights, Case of the ‘Street Children’ (Villagran‑Morales et al.) v. 
Guatemala, Series C No. 77. (2001), para. 79.
182
 See, e.g., European Court of Human Rights, Lupsa v.  Romania, 2006‑VII, paras. 70–72;
Inter-American Court of Human Rights, Chaparro Alvarez and Lapo Iniguez v. Ecuador, Series C No.
170, paras. 240 and 242.
183
  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) ICJ Rep. (2004): ‘152. Moreover, 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’.
184
  See T. van Boven, Study Concerning the Right to Restitution, Compensation and Rehabilitation for
Victims of Gross Violations of Human Rights and Fundamental Freedoms, Preliminary Report submitted
by Theodoor van Boven, Special Rapporteur, E/CN.4/Sub.2/1990/10, 26 July 1990, 5.
185
  Temple of Preah Vihear (Cambodia v. Thailand) [1962] ICJ Rep. 6.
 International Tribunals 167

and restore all religious objects it might have removed. Similarly, in the Wall Advisory
Opinion, the Court insisted on the duty of restitution:
152. The Court would recall that the essential forms of reparation in customary law were laid
down by the Permanent Court of International Justice . . .
153. 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 dam-
age suffered.186
The Wall opinion also addressed cessation; in its view, dismantling of part of the wall
is required under the duty to cease a continuing violation, rather than being a remedy
of restitution.187 It is the presence of the wall, not just its construction that violates
international law. As the Court sees it, as long as the wall is there, the violation con-
tinues. The nature of the underlying obligation—not to have a wall in someone else’s
territory—makes this a case of cessation. None of the separate opinions objected to the
Court’s treatment of this issue or the other paragraphs on reparations.
Cession was also at issue in the 2007 ICJ judgment in the Convention on the Prohibition
and Prevention of the Crime of Genocide.188 The Court found Serbia responsible for not
preventing the genocide in Srebrenica, for not punishing those responsible for commit-
ting genocide, and for failing to implement an order of provisional measures. The first
set of remedies the Court addressed focused on cessation: ‘Serbia shall immediately take
effective steps to ensure full compliance with its obligation under the Convention on
the Prevention and Punishment of the Crime of Genocide to punish acts of genocide as
defined by Article II of the Convention, or any of the other acts proscribed by Article III
of the Convention’.189 A further remedy called for Serbia ‘to transfer individuals accused
of genocide or any of those other acts for trial by the International Criminal Tribunal
for the former Yugoslavia, and to co-operate fully with that Tribunal’. Finally, the Court
decided that its declaratory judgment concerning Serbia’s breaches of its obligations was
sufficient to provide satisfaction, a somewhat surprising result given that the obligations
related to the prevention and punishment of genocide.

5.3  International Criminal Courts

The International Criminal Court (ICC) is the first permanent international criminal
court established to prosecute the perpetrators of the most serious crimes of concern to
the international community, namely war crimes, crimes against humanity, genocide
and the crime of aggression. It is also the first criminal tribunal with the power to award
victims of those crimes a range of reparations. The Pre-Trial Chamber I has indicated the
importance of this power: ‘The reparations scheme provided for in the Statute is not only

186
  Ibid (emphasis added).
187
  Note that in contrast to the absolute obligation of cessation, restitution may not be required if
the burden is out of proportion to the benefit, at least according to the ILC articles on state responsibil-
ity. Placing the dismantling as an obligation of cessation avoids allowing Israel to pay for the breach by
providing compensation in lieu of restitution. See Pierre d’Argent, ‘Compliance, Cessation, Reparation
and Restitution in the Wall Advisory Opinion’, in Pierre-Marie Dupuy et al. (eds.), Common Values in
International Law, Essays in Honor of Christian Tomuschat, (Kehl, 2006), 463.
188
  Convention on Genocide Case, supra n. 157.
189
  See also U.N. Comm. against Torture, Comm. No. 113/1998, Ristic v. Yugoslavia, UN Doc.
CAT/C/26/D/113/ 1998 (2001), (11 May 2001).
168 The Institutional Framework

one of [the ICC’s] unique features. It is also a key feature. In the Chamber’s opinion, the
success of the Court is, to some extent, linked to the success of its reparation system’.190
Until the Rome Statute of the ICC, no international criminal tribunal was expressly
authorized to award victim reparations other than restitution. The statutes of the
International Criminal Tribunal for Yugoslavia (ICTY)191 and International Criminal
Tribunal for Rwanda (ICTR)192 allowed restitution as a punishment additional to, but
not as a substitute for, imprisonment. The ICTR Registrar attempted to have a fund
established through voluntary state contributions for compensation and counselling to
victims, but the effort was abandoned after criticism of some initial reparations efforts.193
Any effort at reparations must take into account the nature of the crimes falling
within the jurisdiction of the ICC and the senior level of those prosecuted. Together,
these factors means that there will likely be hundreds, if not thousands, of victims,
including entire communities harmed by the crimes. In addition, experience thus far
indicates that most defendants will be indigent or the ICC will be unable to reach their
assets, making it difficult in practice to afford remedies to the victims.194

5.3.1 The Rome Statute

The remedial innovations of the Rome Statute are primarily due to Articles 75 and 79,195
which allow claims for reparations by victims of crimes being prosecuted by the court,
and for the establishment of a trust fund for victims. In addition to these two provisions,
Article 77(2) allows the Court to impose, as additional punishment, fines and forfei-
ture of proceeds, property and assets derived directly or indirectly from the adjudged
crime. Harm caused to victims and their families must be taken into consideration.196
According to Rule 146 of the Rules of Procedure, in exercising its discretion to order a
fine and in fixing the amount of the fine, the Court is to consider the financial capacity

190
  Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor’s Application for a Warrant of
Arrest, Article 58, Case N0. ICC-01/04-01/06, sec. 136 (10 Feb. 2006).
191
  The ICTY rules provided only for restitution of property, foreseeing compensation to victims
through domestic procedures. Rule 106 provided for the Registrar to transmit to the competent national
authorities a judgment finding a person guilty. The victim then could bring an action in a national court
or other competent body to obtain reparation, pursuant to relevant national legislation. Rules 105 and
106 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former
Yugoslavia, as amended 11 Mar. 1999.
192
  Article 23(3) of the ICTR statute provided that the Trial Chamber, in addition to the penalty,
could order the return of property and proceeds acquired by criminal conduct to their rightful owners.
The orders were enforceable under the national laws of the state in which the property was located.
ICTR Statute, art. 23(3). It seems to have been assumed that other remedies would be futile because the
perpetrators were often indigent children. See Chen Reis, ‘Trying the Future, Avenging the Past: The
Implications of Prosecuting Children for Participation in Internal Armed Conflict’ (1997) 28 Columbia
Human Rights Law Review 629.
193
  The Presidents of the ICTY and ICTR sent letters to the UN SG in 2000 and 2001 expressing
concerns about the limitations of their mandate and highlighting ‘the need, or even the right, of the
victims to obtain compensation’ as fundamental for restoration of peace and reconciliation. Letter of 14
Dec. 2000, S/2000/1198. Judge Pillay, president of the ICTR referred to ICC art. 75 and acknowledged
the need for a Trust fund for victims in the context of the ICTR. Letter of ICTY, S/2000/1063.
194
  The Court has no authority to issue awards against a state, even where it makes a finding of state
complicity in a crime.
195
  For the drafting history of these provisions, see Fiona McKay, ‘Are Reparations Appropriately
Addressed in the ICC Statute?’ in Dinah Shelton (ed.), International Crimes, Peace and Human
Rights: The Role of the International Criminal Court (Ardsley 2000), 163, 167–70.
196
  ICC Rules of Procedure, Rule 145(1)(b), available at the ICC website: http://www.icc-cpi.int/
en_menus/icc/Pages/default.aspx.
 International Tribunals 169

of the convicted person, including any orders for forfeiture and orders for reparation.
The term reparation is not defined in the Statute or the rules.197
An award of reparations is fully at the discretion of the Court, which is obliged to
‘establish principles’ respecting reparations, but ‘may’ determine the injury to victims
and ‘may’ make an order specifying reparations. The Court is nonetheless bound by Rule
86: ‘A Chamber in making any direction or order, and other organs of the Court in per-
forming their functions under the Statute or the Rules, shall take into account the needs
of all victims and witnesses in accordance with Article 68, in particular, children, elderly
persons, persons with disabilities and victims of sexual or gender violence’.
The Registrar communicates claims for reparations filed by the victim(s) or on
motion by the Court to persons against whom the reparations may be awarded, victims
and interested persons, and states.198 Claims for reparation are heard in a separate hear-
ing on matters related to sentencing,199 which should be public200 and during which the
legal representative of the victims may question witnesses, experts and the convicted
person.201 These measures are also intended to enable third parties to make represen-
tations under Article 75(3) with respect to bona fide possession of property, because
Articles 93 and 109 of the Rome Statute exclude from reparations orders those proper-
ties and proceeds in the hands of bona fide third parties.
In cases where the Court decides to proceed with a reparations order on its own
motion, victims can intervene and continue the proceedings if they object.202 The Court
may appoint experts, upon request or its own motion, in order to ascertain the scope and
extent of damage and options concerning methods and types of reparations. All reports
by experts are subject to comments by the persons and entities involved in reparations
proceedings.203
The rules specify the required contents of reparations orders204 which should specify if
reparations are to be deposited with the Trust Fund. Rule 98 provides that an award for
reparations can be deposited with the Trust Fund when it is ‘impossible or impracticable
to make individual awards directly to each victim’ at the time of the order. Individual
awards may be directed through the Trust Fund where victims cannot be located or eas-
ily contacted during the proceedings. These awards should be kept separate from other
funds and forwarded to each victim as soon as possible.205 Collective awards to groups
that have no legal personality may have to be deposited with the Trust Fund.206 The
Court also may order an award for reparation to be made through the Trust Fund to
a Trust Fund-approved national, inter-governmental or international organization.207
Such organizations may be in a better position to distribute awards, particularly collec-
tive ones.208
Article 82(4) of the ICC Statute provides that victims have the right to appeal an
order for reparations. The right can only be exercised through a ‘legal representative of

197
  Earlier drafts referred to the need for rules on evidence and standard of proof for reparations,
particularly on causation, types and quantum of reparations. No rule was adopted, however, because no
agreement could be reached and because Art. 75(1) specifies that it is the Court that establishes princi-
ples for an award of reparations.
198
  Rule 94(2) and 95(1).    199 Rule 143.   200 Rule 96(1).   201 Rule 91.
202
 Rule 95(2). 203
 Rule 97(2). 204
 Rule 218. 205
 Rule 98(2).
206
 Rule 98(3). 207
 Rule 94(4).
208
  The U.N. Voluntary Fund for Victims of Torture and the U.N. Voluntary Fund for Victims of
Slavery and Slave-like Practices finance programs that provide medical, psychological, social or legal
assistance to the victims and their relatives. Examples of this include the establishment of treatment cen-
tres, meetings of experts, aid to child victims, publications, legal assistance and economical and social
rehabilitation. See UN Doc. A/48/520, Annex I.
170 The Institutional Framework

the victims’. A bona fide owner of property adversely affected by an order under Article
75 also has the right to appeal an order for reparations.
Reparations orders may be secured through requests of the Court to states parties to
identify, trace and freeze proceeds, property and assets.209 The effect of the order does not
depend on any domestic law and the convicted person cannot escape from the obliga-
tion to make restitution and compensation on the grounds of any domestic legislation.
National courts may not modify the order for reparation during enforcement.210

5.3.2 The Trust Fund
Article 79 of the Rome Statute makes clear that the Trust Fund is ‘for the benefit of
the victims of crimes within the jurisdiction of the Court’ and ‘of the families of such
victims’. As the experience of the 1990 Gulf War demonstrated,211 in many cases a per-
petrator will lack sufficient funds to compensate victims. Rather than leave the victim
with no remedy, the Trust Fund may provide appropriate relief out of the sums collected
in fines and forfeitures or from other funds, for which it acts as trustee. Even if funds
deriving from fines and forfeiture are drawn upon, it is unlikely that the Trust Fund will
have sufficient resources to pay all claims.
Money and other property collected through fines or forfeiture may be used to pro-
vide interim relief for victims between the time crimes are committed and the time
when victims are awarded reparations. This aid can help provide treatment for physical
or psychological injuries, losses of property or other assets, or legal aid. The Trust Fund
may also engage directly or indirectly in helping establish local institutions or training
programs for the benefit of victims. This form of aid could reach those who cannot or do
not wish to claim reparations directly.
The Trust Fund has already implemented nearly three dozen projects, outside of the
context of case-based reparations, ‘targeting victims of crimes against humanity and war
crimes’ in the Democratic Republic of Congo and Uganda.212 Through these projects,
the Trust Fund has reached an estimated 42,300 direct beneficiaries and 182,000 indi-
rect beneficiaries.213 The Trust Fund’s practice is to make an assessment once a situation
is being examined by the ICC, looking at the nature of the crimes; size and location of
affected groups and individuals; availability of implementing partners; and assistance
through other agencies. Engagement in specific activities is based on a needs assessment.

5.3.3 Developing ICC reparations principles

Criminal prosecution itself is often seen as providing a form of justice for victims,
enhanced if they have a role in the proceedings. According to the ICC, its Statute and
the Rules introduce a system of reparations that reflects a growing recognition in inter-
national criminal law that ‘there is a need to go beyond the notion of punitive justice,

209
  Statute, Arts. 93(1)(k) and 109 and Rule 99, ICC Rules of Procedure, supra, n. 196.
210
 Rule 219.
211
  Between 1991 and 1999, the United Nations Compensation Commission (UNCC) received
approximately 2.6 million claims seeking compensation in excess of $300 billion. The fund was able to
pay $2.7 billion and did so according to the United Nations Compensation Commission’s Priority of
Payment and Payment Mechanism Guiding Principles, UN Doc. S/AC.26/Dec. 17 (1994).
212
  The Trust Fund for Victims, Recognizing Victims & Building Capacity in Transitional Societies,
Programme Progress Report (2010), 5.
213
 Ibid, 6.
 International Tribunals 171

towards a solution which is more inclusive, encourages participation and recognises

the need to provide effective remedies for victims’.214 Challenges in this regard include
the ICC’s physical distance from victims, the need to deal with the ongoing trauma of
survivors,215 and adjusting to the fact that most of the perpetrators that will be convicted
will likely be judgment-proof, being either indigent or having resources the Court is
unable to reach.216 The sheer number of victims also will make meaningful decisions on
reparations difficult.217
The ICC has demonstrated its awareness of the problems it faces in affording repara-
tions, including in the context of a criminal trial. Trial Chamber I in the Lubanga case
accepted that:
there will be some areas of evidence concerning reparations which it would be inappropriate,
unfair or inefficient to consider as part of the trial process. The extent to which reparations issues
are considered during the trial will follow fact-sensitive decisions involving careful scrutiny of
the proposed areas of evidence and the implications of introducing this material at any particular
stage. The Trial Chamber may allow such evidence to be given during the trial if it is in the interests
of individual witnesses or victims, or if it will assist with the efficient disposal of issues that may
arise for determination. However, the Chamber emphasizes that at all times it will ensure that this
course does not involve any element of prejudgment on the issue of the defendant’s guilt or inno-
cence, and generally that it does not undermine the defendant’s right to a fair trial’.218
ICC judges have decided to develop principles of reparations on a case by case basis
rather than articulating general guidelines. The first statement of principles came in the
Lubanga case, after Thomas Lubanga Dyilo was found guilty on 14 March 2012, of the
war crimes of enlisting and conscripting children under the age of 15 years and using
them to participate actively in hostilities. He was sentenced on 10 July 2012 to a total
of 14 years of imprisonment. The Chamber requested that proposals for reparations be
presented to a newly-constituted Trial Chamber I for approval. Due to Lubanga’s indi-
gency, reparations would then be implemented through the Trust Fund for Victims. The
Chamber considered it to be of paramount importance that the victims, together with
their families and communities, participate in the reparations process, and they should
be able to express their particular points of view and communicate their priorities.

214
 ICC, Situation in the Democratic Republic of the Congo: In the Case of the Prosecutor v. Thomas
Lubanga Dyilo, ICC-01/04-01/06, 7 August 2012, ‘Decision establishing the principles and procedures
to be applied to reparations’. para. 177, citing UN Basic Principles [hereinafter Lubanga reparations].
See also Report of the United Nations Secretary-General (23 August 2004) ‘The rule of law and tran-
sitional justice in conflict and post-conflict societies’ S/2004/616; Report of the independent expert
Diane Orentlicher (8 February 2005) ‘Updated Set of principles for the protection and promotion of
human rights through action to combat impunity’, E/CN.4/2005/102/Add.l.
215
  Lubanga reparations, supra n. 214, 208-09. See also Marieke Wierda & Pablo De Greiff, Reparations
and the International Criminal Court: A Prospective Role for the Trust Fund for Victims (New York, 2004), 6.
216
  See e.g., Claude Jorda & Jérôme de Hemptinne, ‘The Status and Role of the Victim’, in A. Cassese
et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford, 2002) 1387,
1415; Thordis Ingadottir, ‘The Trust Fund for Victims (Article 79 of the Rome Statute): A Discussion
Paper’, Project on International Courts and Tribunals (February 2001), 16.
217
  In its comments on reparations, invited by the Chamber, the Trust Fund pointed to the inherent
tension between the limitations of judicial reparations and the kinds of harm and the number of vic-
tims usually associated with international crimes. Judicial reparations are limited to individual criminal
responsibility for specific charges, which in turn are the result of a prosecutorial strategy, and may not be
able to address this tension adequately.
218
  Prosecutor v. Thomas Lubanga, Dyilo, Decision on Victims’ Participation, ICC-01/04-01/06/1119,
sec. 122 (Trial Chamber I, 18 Jan. 2008).
172 The Institutional Framework

Chamber I expressed the view that reparations fulfil two main purposes: they oblige
those responsible for serious crimes to repair the harm they caused to the victims and they
enable the Chamber to ensure that offenders account for their acts.219 Thus, reparations
must to the extent achievable relieve the suffering caused by the offences, afford justice to
the victims by alleviating the consequences of the wrongful acts, deter future violations,
and contribute to the effective reintegration of former child soldiers. Reparations are also
assumed to assist in promoting reconciliation between the convicted person, the victims
of the crimes and the affected communities.
In the Chamber’s view, reparations are to be applied ‘in a broad and flexible manner,
allowing the Chamber to approve the widest possible remedies for the violations of the
rights of the victims and the means of implementation’.220 That means that principles
set forth in one case will not necessarily apply to other matters. In general, the Court
will consider, where appropriate, the applicable treaties and the principles and rules of
international law, including the international law of armed conflict, and the general
principles of law derived from national laws of legal systems of the world. Importantly,
reparations must be implemented ‘consistent with internationally recognized human
rights and be without any adverse distinction founded on grounds such as gender […]
age, race, colour, language, religion or belief, political or other opinion, national, ethnic
or social origin, wealth, birth or other status’.
Indeed, the Chamber accepted that the right to reparations is a well-established and
basic human right enshrined in numerous human rights instruments and reports, all of
which provided guidance to the Chamber in establishing its principles in the Lubanga
case. The Chamber accepted that the provisions of human rights instruments are supple-
mented by ‘the substantial contribution by regional human rights bodies in furthering
the right of individuals to an effective remedy and to reparations’.
One principle articulated was that the criminal charges in the case serve to define who
are the ‘victims’ eligible for reparations.221 In the Lubanga case, the Chamber identified
the victims as children who were recruited and actively used as child soldiers, along with
their parents or next of kin who could demonstrate harm suffered on account of the
recruitment of their children.222 Those persons who suffered killings, rape and pillage at
the hands of the combatants were not recognized.
Within the limits of the charges, the Chamber established as its first principle that
‘[a]‌ll victims are to be treated fairly and equally as regards reparations’.223 Participation in
the trial is not required, correctly, as ‘it would be inappropriate to limit reparations to the
relatively small group of victims that participated in the trial and those who applied for
reparations’.224 The Court added that it must also take into account the special needs of
children,225 elderly, persons with disabilities and victims of sexual or gender violence;226
treat the victims with humanity and respect their dignity and human rights; ensure their

219
  Eva Dwertmann, The Reparation System of the International Criminal Court: Its Implementation,
Possibilities and Limitations (Leiden, 2010), 43.
220
  Lubanga reparations, supra n. 214, para. 180, citing Peter Lewis and Hakan Friman, ‘Reparations
to Victims’, in R. Lee (ed.) The International Criminal Court: Elements of Crimes and Rules of Procedure
and Evidence (New York, 2000), 483.
221
  Note, though, that the Trust Fund can provide general assistance to victims of ‘situations within
the Court’s jurisdiction, beyond the crimes charged. Indeed, the Trust Fund is not dependent on the
cases filed. Appeals Chamber Judgment on the appeals of the Prosecutor and the Defence against Trial
Chamber I’s Decision on Victims’ Participation of 18 Jan. 2008, 11 Jan. 2008. ICC-01/04-01/06-1432,
para. 31.
222
  Lubanga, supra n. 214, paras. 194-201. 223
  Ibid, para. 243.
224
  Ibid, para. 187. 225
  Ibid, para. 210. 226
  Ibid, para. 200.
 International Tribunals 173

safety and privacy; act without discrimination; address underlying injustices and avoid
reinforcing them or further stigmatizing the victims, and seek reconciliation.
The Chamber identified various categories of physical, emotional and material harm
or injury. The first category includes injury from gunshots, beatings and torture, incom-
municado detention, denial of medical treatment, and limited access to food. Emotional
or psychosocial harm includes suffering related to loss of family members, forced recruit-
ment into rebel movements and hostilities, and injury suffering related to enslavement
and detention and displacement of families. Material harm means economic loss due to
looting, destruction and burning of houses.
In terms of reparations, although Article 75 of the Statute lists restitution, compensa-
tion and rehabilitation as forms of reparations, the Chamber determined that this list is
not exclusive. Other types of reparations, for instance those with a symbolic, preventive
or transformative value, may also be appropriate. Reparations should be ‘appropriate,
adequate and prompt’,227 and proportionate to the harm, injury, loss and damage as
established by the Court’.228 Restitution should, as far as possible, restore the victim
to his or her circumstances before the crime was committed. Restitution is directed at
the restoration of an individual’s life, including a return to his or her family, home and
previous employment; provision of continuing education; and return of lost or stolen
property.
Compensation should be considered when 1) the economic harm is sufficiently quan-
tifiable; 2) such an award would be appropriate and proportionate (bearing in mind the
gravity of the crime and the circumstances of the case); and 3) the available funds make it
feasible. Compensation is to be approached on an age-appropriate and gender-inclusive
basis229 and awards should avoid reinforcing previous structural inequalities and per-
petuating prior discriminatory practices. Consistent with internationally recognized
human rights law, compensation requires a broad application, to encompass all forms of
damage, loss and injury, including material, physical and psychological harm.
Rehabilitation was also a focus in the Lubanga principles, given the nature of the
crimes and age of most victims, with specific mention of medical services and health
care, psychological, psychiatric and social assistance, and relevant legal and social ser-
vices. The stated aim is to facilitate reintegration of child soldiers, including education
and vocational training, sustainable work opportunities, while addressing shame and
avoiding further victimization. The Chamber noted that there may be a need to rehabili-
tate entire local communities.
The Chamber considered that symbolic reparations may be appropriate; indeed, it
decided that Mr Lubanga’s conviction and his sentence are examples of relevant symbolic
reparations for the victims and their families and communities. Other forms of repara-
tions may include campaigns to improve the position of victims; issuing certificates that
acknowledge the harm they suffered; and outreach and promotional activities, along
with educational programs and information directed at reducing the stigmatization
and marginalization of the victims, avoiding discrimination of any kind.
On the issue of causation, the Court observed that neither the Statute nor the Rules
define the precise requirements of the causal link between the crime and the relevant
harm for the purposes of reparations and, in its opinion, there is no settled view in
international law on the approach to be taken to causation. Given the context, repara-
tions should not be limited to direct harm or the immediate effects of the crimes but

227
  Ibid, para. 242, citing UN Basic Principles.      Ibid, para. 243.
228
229
  Ibid, para. 231.
174 The Institutional Framework

instead the Court should apply the standard of ‘proximate cause’.230 That relationship
and other relevant facts relating to reparations do not require proof beyond a reasonable
doubt: ‘given the fundamentally different nature of these reparations proceedings, a less
exacting standard should apply’.231 Taking into account the difficulty victims may face
in obtaining evidence in support of their claims, the Chamber adopted a standard of
‘a balance of probabilities’ as sufficient and proportionate to establish the facts that are
relevant to an order for reparations directed against the convicted person.232
One issue not discussed in the Lubanga case was whether or not child soldier victims
should be excluded if they themselves were involved in the commission of crimes. This
issue has arisen in the context of several national schemes that compensate victims of
gross and systematic human rights violations and the decision is usually to exclude per-
sons who were involved in the commission of crimes.233 The Trust Fund may have had
this in mind in noting that especially in post-conflict situations, reparations have the
risk of becoming part of the dynamics of a conflict and may even fuel tensions. It recom-
mended that the Court strive to minimize the harm that may inadvertently result from
providing reparations to victims. To minimize possible longer-term harm, the Court
should provide reparations in ways that are conflict-sensitive and supportive of reconcili-
ation and recovery, avoiding measures that stigmatize victims or put them in danger with
their families and communities.
The Trust Fund also noted that in the context of gross violations of international
human rights it has been argued that Principle 18 of the UN Basic Principles authorizes
departure from the principle of restitution in integrum towards providing ‘fair and ade-
quate reparation’. In particular, the requirement of a ‘fair reparation’ expresses the need
for taking into account the overall transitional context in which reparations for massive
atrocities take place (including the large numbers of victims); and on the other hand,
the scarcity of available resources to be allocated for reparation purposes. Appropriate
reparations are those that are suitable, taking into account the harm, the victims, the
violations, and the broader society, and are also effective.234
The Trust Fund endorsed a community-based approach to collective reparations as
an appropriate way forward in the Lubanga case. The Trust Fund noted that community
or collective reparations programs must be designed so that vulnerable victims (includ-
ing inter alia, the former child soldiers, women and girls and their children, victims
of gender-based and sexual violence, illiterates, disabled and mutilated former child
soldiers) will have adequate access to reparations. While a process targeting individual
victims would be technically feasible the Trust Fund found it would be disproportionally
costly and cumbersome. In addition, targeting victims as individuals or as identifiable

230
  Ibid, paras. 249–250.    231  Ibid, para. 251.
232
  The Chamber added that when reparations are awarded from the resources of the Trust Fund
for Victims or from any other source, a wholly flexible approach to determining factual matters is
appropriate, taking into account the extensive and systematic nature of the crimes and the number of
victims involved: ibid, para. 254. During the Preparatory Commission some delegations suggested that
the evidence standard should be based on a ‘balance of probabilities’, rather than the criminal standard
of ‘beyond reasonable doubt’. Many reparations programs dealing with mass claims have also adopted
flexible evidentiary standards in order to accommodate the difficult situation of the victims. See Lewis
and Friman, supra n. 220, 486.
233
  Examples include the programs of Peru and Colombia, Guatemala, Nicaragua. See, Naomi
Roht-Arriaza, ‘Reparations, Decisions and Dilemmas’, (2004) 27 Hastings Int’l & Comp. L. Rev. 157, at
177. See Chapter 7, infra.
234
  For a human rights case taking into consideration these factors, see: Inter-American Court of
Human Rights, Case Of The Afro-Descendant Communities Displaced From The Cacarica River Basin
(Operation Genesis) v. Colombia, Series C No. 270 (2013), para. 470.
 International Tribunals 175

members of a group for reparation purposes, while legally justifiable under the Rome
Statute, risks being counter-productive as an entry point for the design and implementa-
tion of reparations. In fact, it may bring more harm to the victims if former child soldiers
are seen as being ‘rewarded’ for their role in the conflict. According to the Trust Fund,
the need for restitution of identity, family life and citizenship of victims also argued for
measures that target their wider communities.
Such a community-based system may be the only solution for reparations in the
context of a conflict like that in the DRC. There remains a danger, however, that the
same lack of resources that precludes individual full reparations will hamper efforts at
community redress. Moreover, the rehabilitation of child soldiers requires individual-
ized treatment programs.

5.4  International Administrative Tribunals

The idea of administrative tribunals dates to the League of Nations which proposed a
Tribunal ‘to be exclusively a judicial body set up to determine the legal rights of offi-
cials on strictly legal grounds’.235 The first international administrative organ created
was the Administrative Tribunal of the International Labour Organization (ILOAT).
Its competence extends to more than three-dozen specialized agencies, including
United Nations Educational, Scientific, and Cultural Organization (UNESCO),
World Health Organization (WHO), Food and Agriculture Organization (FAO),
World Meteorological Organization (WMO), International Telecommunications
Union (ITU), and the International Atomic Energy Agency (IAEA).236 The United
Nations General Assembly subsequently established the United Nations Administrative
Tribunal (UNAT) by resolution of 24 November 1949.237 The World Bank and the
International Monetary Fund have had their own procedure since 1980 and, in 1981,
the Inter-American Development Bank created its Administrative Tribunal (IADBAT).
In 1993, the United Nations General Assembly, by resolution 47/226, emphasized
the importance of a just, transparent, simple, impartial and efficient system of internal
justice and requested the Secretary-General to undertake a comprehensive review of the
UN administrative justice system. A subsequent taskforce proposed a complete reform of
the system along with measures to encourage settlement. In general, the administrative
procedures begin informally through discussions between the employee and supervisors.
A quasi-judicial stage follows within the organization and can lead to recommendations
to the executive head of the organization involved. After the exhaustion of these internal
remedies, a complaint may be taken to the appropriate administrative tribunal, where in
general there is only a written procedure.
Although their competence varies, international administrative tribunals deal with
appeals by international civil servants against measures taken by an organization in
breach of conditions of appointment and benefits, including violations of workers’
rights, discrimination, and sexual harassment. The tribunals may revoke the decisions
of employers in some cases and may grant financial compensation. Jurisdiction to afford
and shape remedies is outlined in the statutes, but it is also deemed an inherent power

235
  League of Nations, 8th Ass., 4th Comm., 58 Official J. 250–51 (Spec. Supp.).
236
 See Report on the Administration of Justice at the United Nations presented by the Joint Inspection
Unit in Mar. 2000, A/55/57.
237
  The Statute of the UNAT was adopted by the General Assembly by Res. 351A(IV) on 24 Nov.
1949 and amended by Res. 782B(VIII) on 9 Dec. 1953 and by Res. 957(X) on 8 Nov. 1955.
176 The Institutional Framework

by the tribunals, provided they do not exceed specific limitations circumscribed by their
statutes. Liberally reading their authority, administrative tribunals have ordered rescis-
sion, annulment, and specific performance, as well as compensation. Compensation
may be the sole remedy in specific instances, i.e. where the decision taken was valid, but
there was some irregularity in connection with it.
UNAT, if it finds an application well founded, ‘shall’ order the rescinding of the
decision contested or the specific performance of the obligation invoked. It also fixes
the amount of compensation to be paid to the applicant for the injury sustained
if the Secretary-General chooses to deny restitution or specific performance. The
compensation will not normally exceed the equivalent of two years’ net base salary
of the applicant, but the tribunal can, in exceptional cases when it considers it justi-
fied, order the payment of a higher indemnity.238 The tribunal also has decided that
compensation may be afforded where specific performance or rescission would be an
inadequate remedy.239 Moral damages sometimes have been awarded for distress and
prejudice.
The ILOAT statute confers unlimited authority on the tribunal to award ‘compen-
sation for the injury’ in cases where rescission or specific performance is not possible
or advisable.240 Like other international tribunals with discretion to award compen-
sation, ILOAT does so on an equitable basis in light of all the circumstances.241 To
assess damages for lost earnings, it has referred to a principle that requires calculating
the amount of pay due minus actual or probable outside earnings, but generally the
tribunal does not explain its awards for either pecuniary or non-pecuniary harm.
The ICJ has approved the ILOAT practice of affording compensation on an equita-
ble basis saying that when the precise amount of compensation could not be based
on a specific rule of law, equity can provide the ‘true’ and ‘reasonable’ measure of
compensation.242
In Franks and Vollering v. EPO, the ILOAT stated that ‘the law that the Tribunal
applies in entertaining claims that are put to it includes not just the written Rules of the
defendant organization but the general principles of law and basic human rights’.243 In
exercising its discretion to afford equitable relief, the ILOAT has ordered the payment
of lost wages, moral damages,244 interest,245 and costs.246 It also has imposed a penalty on

238
 Art. 9, Statute of the UNAT, supra n.  237. Art. IX of the Statute of the Inter-American
Development Bank is virtually identical, although it states more clearly that compensation is to be
awarded if the President of the Bank or the General Manager of the Corporation decides ‘not to com-
ply’ with the terms of the judgment ordering rescission of the decision or specific performance of the
obligation.
239
  Bulsara v. Secretary-General of the United Nations, 24 ILR 728 (Admin. Trib. of UN 1957).
240
  Art. VIII, Statute of the International Labour Organization Administrative Tribunal. See B.M. de
Vuyst, Statutes and Rules of Procedure of International Administratve Tribunals (1981).
241
 See Goyal v. UNESCO, 43 ILR 396 (Int’l Lab. Org. Admin. Trib. 1969).
242
  Administrative Tribunal of the International Labour Organization (Advisory Opinion) [1956]
IJC 77.
243
  Franks and Vollering v. EPO, ILOAT Judgment No. 1333 of 31 Jan. 1994, Consideration 5.
244
  Unninayar v. WMO, ILOAT Judgment No. 972 of 27 June 1989 (awarding 25,000 Swiss francs
for moral injury).
245
  Manaktala v. WHO, ILOAT Judgment No. 1338 of 13 July 1994. See De Alarcon v. WHO,
ILOAT Judgment No. 479 of 28 Jan. 1982, Consideration 14: ‘Interest at the Market rate is composed
in part of a sum considered to be sufficient to protect the lender against inflation and in part interest in
the old sense, that is the payment made for the use of stable money’.
246
  See, e.g., Labben v. WHO, ILOAT Judgment No. 1026 of 26 June 1990, Leprince v. UNESCO,
ILOAT Judgment No. 942 of 8 Dec. 1988. In Ghaffar v. WHO, ILOAT Judgment No. 320 of 21 Nov.
1977, the tribunal stated that in principle a complainant whose complaint is allowed in whole or in part
is entitled to costs paid by the defendant organization.
 International Tribunals 177

occasion for failure to comply with a decision.247 In general, it has been observed that
non-controversial substantive violations or a pattern of non-compliance with proce-
dural norms are more likely to give rise to damages.248
Petitioners before the IADBAT have similarly and successfully challenged acts violat-
ing their employment rights.249 The IADBAT’s first judgment for an applicant awarded
a two per cent salary increase it found had been wrongfully denied by the Bank. The
increase was from the date of the denial to the date of the decision.250 The tribunal also
has ordered a transfer quashed,251 nullified a flawed performance evaluation, awarded
salary,252 ordered either reinstatement or compensation,253 and awarded retroactive
merit increases.254
The issue of costs came up in two cases. In the first, the petitioner sought reim-
bursement for the travel expenses of his lawyer, who received notice too late of a
change in the date of a hearing. The tribunal granted reimbursement even though no
other remedy was awarded, the tribunal finding that the administrative irregularities
the petitioner challenged were harmless errors.255 In Case 16, one of four filed by
the same applicant, the Bank requested costs be assessed against the applicant. The
tribunal refused, finding no provision authorizing assessment of costs in its rules
and stating that as a policy matter such a rule would serve to discourage the Bank’s
employees from asserting their rights before the tribunal.256 The IADBAT’s approach
to remedies has become more innovative in recent years, perhaps in response to more
egregious cases of misconduct. In Arminda Buria-Hellbeck v. IDB257 the applicant
complained of a decision not to confirm her appointment to the professional staff
of the Bank. She asked for an appointment; expunging of her performance evalua-
tion; back pay; $50,000 for ‘damages to her professional reputation, anguish, and
humiliation’, and attorneys’ fees. Her complaint alleged due process violations dur-
ing her consideration for appointment. The tribunal found that at various stages
of the appointment process, officials showed bias or prejudice in regard to charges
she raised of sexual harassment and improperly treated her complaint. The tribu-
nal found her complaint of sexual harassment ‘coloured the Bank’s perception’ of
her suitability for confirmation. The tribunal concluded that the incidents of sexual
harassment ‘were not frivolous’ and that they were not investigated in a timely and
serious manner by the Bank:
Indeed, Bank officials seem to have been so preoccupied with what they perceived to be
Complainant’s personality as reflected in the fact of her grievance or the nature of the various
facts being alleged by and against Complainant, that they lost sight of the chilling effect their
treatment of the Complaint would have on future grievances that might be filed against the
Bank.258

247
  Bluske v. WIPO, ILOAT Judgment No. 1362 of 13 July 1994. WIPO was ordered to pay the
applicant 10,000 Swiss francs ‘by way of penalty’ for each month of delay in failing to discharge its
obligation of reinstatement.
248
  Karel Wellens, Remedies against International Organizations (Cambridge, 2002), 153.
249
  Applicants succeeded on the merits in fourteen of the first forty cases submitted to the tribunal. Six
cases were discontinued before a decision was taken. The Bank prevailed in the remaining twenty cases.
250
  Benjamin Castro v. IDB, Judgment Case No. 7, 11 Oct. 1985.
251
  Tula Amas v. IDB, Judgment Case No. 9, 4 Apr. 1986.
252
  Benjamin Castro v. IDB, supra n. 250.
253
  Alfredo del Rio v. IDB, Judgment Case No. 13, 2 Apr. 1987.
254
  Marcelo Nunez Ribeiro v. IDB, Judgment Case No. 14, 3 Apr. 1987.
255
  Juan Ramon Duval v. IDB, Judgment Case No. 12, 2 Oct. 1986.
256
  Julio C. Cabo v. IDB, Judgment Case No. 16, 13 Nov. 1987.
257
  Case No. 23, 18 Nov. 1989. 258
 Ibid.
178 The Institutional Framework

The tribunal also noted that the petitioner’s file was ‘amplified’ after the fact in order
to strengthen the position of the Bank in the case. In conclusion, the tribunal strongly
cautioned the Bank that ‘[a]‌llegations of sexual harassment may not and should not have
been dealt with as they were, in a superficial manner, without adequate investigation,
written conclusions or even oral conclusions made available for judicial review at the
appropriate time’. The tribunal found lack of due process and, although it did not order a
new procedure for confirmation in an appointment, it ordered applicant’s file expunged
of all documents irregularly added to it and the addition of the judgment, if the applicant
so desired. No back pay or attorneys’ fees were explicitly awarded, but the tribunal found
the applicant ‘entitled to fifty thousand dollars as compensation for material and moral
injury’ resulting from the lack of due process. The award seems to be based on the fact
that neither restitution nor specific performance was capable of remedying the violation;
compensation was thus awarded based on the tribunal’s inherent powers. The amount
is sufficiently high that an award of attorneys’ fees probably was included sub rosa.259
Similar awards of compensation have followed in cases concerning forced retirement,260
inadequate housing allowance,261 breach of personnel policies regarding the confidenti-
ality of medical records,262 a punitive transfer,263 and denial of merit pay increases.

5.5  Reparations Following Armed Conflicts

Restitution and compensation for losses suffered in international and internal armed con-
flict have a long history. The Peace of Westphalia, ending the Thirty Years War in 1648,
provided that anyone in the Holy Roman Empire, who had suffered prejudice or damage
at the hands of one or the other party, should, in respect of their territories and freedoms,
be fully reinstated in the estate and stations which they had enjoyed. A French law of 1825
ordered indemnification of revolutionary emigrés and their heirs for property confiscated
or sold by the state in 1792.264 The Hague law on armed conflict enshrined the obligation
to make reparations for violations of humanitarian norms. At the 1907 Peace Conference,
a German proposal led to Article 3 of Hague Convention IV of 18  October 1907:
‘A Belligerent Party which violated the provisions of the said Regulations shall, if the case
demands, be liable to pay compensation. It shall be responsible for all acts committed by

259
  The IADBAT’s statute provides that ‘each party shall bear its own costs in presenting a case to the
Tribunal’.
260
  Osvaldo S. Rossello v. IDB, Case No. 25, 12 July 1991. Complainant was awarded US$53,720 in
compensation.
261
  Francois de Backer v. IDB, Case No. 27, 13 Nov. 1992. Notably, the tribunal acknowledged in this
case that housing costs were not formally part of the employment contract, but saw them as an induce-
ment to sign and one based on misrepresentation by the Bank. The tribunal unanimously awarded
US$13,000.
262
  Noel X. Belt v. IDB, Judgment Case No. 29, 13 Nov. 1992. The case centred on a denial of merit
increases, which the tribunal ordered. The damages for breach of confidentiality, in the amount of
US$10,000, were in addition to the retroactive merit increases and benefits. One judge dissented, find-
ing the relief awarded outside the powers conferred on the tribunal by the statute.
263
  Mariana C. Renart v. IDB, Judgment Case No. 32, 13 Nov. 1992. In this case, the tribunal was
able to award restitution of the position which the applicant had been denied. It awarded, in addition,
the equivalent of one year of her salary, US$55,596, for damages sustained. The tribunal specifically
denied the request for attorneys’ fees, although they may be seen as included in the amount of damages
awarded.
264
  Loi concernant l’indemnité à accorder aux anciens propriétaires des beinsfonds confisqués et
vendus au profit de l’Etat, en vertu des lois sur Emigrés, les condamnés et les deportés. Bulletin des Lois
du Royaume de France, 8e ser., no. 30 (1825).
 International Tribunals 179

persons forming part of its armed forces’. The provision is repeated in Article 91 of the
1977 Protocol I Additional to the 1949 Geneva Conventions.
Despite this history, there remains considerable debate over the legal fabric of repara-
tions following armed conflicts, because of its dispersal among norms of humanitarian
law, human rights law, international criminal law, ad hoc agreements, bilateral agree-
ments, and general rules of state responsibility. The right to a remedy is thus less settled
in the context of armed conflict than during peacetime. Debate centres on whether
individuals can claim remedies or whether reparations claims must be made through
states. There is also uncertainty over whether the duty to provide reparations is limited
to ‘grave breaches’265 or extends to all violations of human rights and humanitarian law
during armed conflict.266
Notably, in Germany and the US, courts have held that the Hague Convention (IV)
and its Regulations provide no right of individuals to bring a claim, based on the law in
force in 1907.267 Traditional views indeed were that only a state could be considered a
‘party affected’ for purposes of seeking damages and, as a further limitation, most armed
conflicts conclude with only the nationals of the victor state receiving reparations: ‘The
alien enemy’s individual grievances are settled by the treaty of peace, and if his country
should happen to lose in the war, he is without redress. If his country should be the
conqueror, indemnities may be demanded from the defeated nation, but his pecuni-
ary remedy then depends on the bounty of his own state’.268 Nonetheless, the Treaty
of Versailles implemented the Hague Convention requirement by establishing mixed
arbitration tribunals for private claimants to present their damages against Germany,
even against the wishes of their own governments.269
The decisions made by governments in concluding a peace treaty may later preclude
injured individuals from obtaining redress. Second World War peace treaties deliber-
ately excluded or settled some claims.270 The Japanese peace treaty provided: ‘that Japan
should pay reparations to the Allied Powers for the damage and suffering caused by it
during the war’,271 but the U.S. expressly waived claims on behalf of all US nationals
against Japan and its nationals, including Japanese corporations. Several bilateral agree-
ments that included reparations were later concluded, but the unresolved claims of those
who suffered abuse in Asia continue to be pressed.

265
  Art. 148 of the Fourth Geneva Convention states that in respect of grave breaches ‘no High
Contracting Party shall be allowed to absolve itself . . . of any liability incurred by itself ’. Grave breaches
are defined by Art. 147 as ‘those involving any of the following acts, if committed against persons or
property protected by the Convention: wilful killing, torture or inhuman treatment, including biologi-
cal experiments, wilfully causing great suffering or serious injury to body or health, unlawful deporta-
tion or transfer or unlawful confinement of a protected person, compelling a protected person to serve
in the forces of the hostile power, or wilfully depriving a protected person of the rights of fair and regular
trial prescribed in th[e]‌Convention, taking of hostages and extensive destruction and appropriation of
property not justified by military necessity and carried out unlawfully and wantonly’.
266
  ILA Declaration of International Law Principles on Reparation for Victims of Armed Conflict
(Substantive Issues), Res. No. 2/2010, art. 1.
267
  Distomo Massacre Case, BGH-III ZR 245/98 (26 June 2003) (2003) 42 ILM 1030; Fishel v. BASF
Group, U.S. Dist. LEXIS 21230 at 14 (S.D. Iowa 1998). Yet, in an early US case, Christian County Court
v. Rankin & Tharp, 63 Ky. (2 Duv.) 502 (1866), a state court granted private compensation against
Confederate soldiers for burning the courthouse ‘in violation of the law of nations’ saying that ‘for every
wrong the common law provides an adequate remedy . . . on international and common law principles’.
268
  Edwin Borchard, The Diplomatic Protection of Citizens Abroad (1915), 251.
269
  Treaty of Versailles, 28 June 1919, 2 Bevans 43.
270
  See U.S. Dept. of State, Record of Proceedings of the Conference for the Conclusion and Signature
of the Treaty of Peace with Japan (1951), 82–3, quoted in In re World War II Era Japanese Forced Labor
Litigation, 114 F. Supp. 2d 939, 942 (N.D. Cal. 2000).
271
  Peace Treaty between the Allies and Japan, 8 Sept. 1951, Art. 14.
180 The Institutional Framework

In practice, a half century of reparations paid as a result of the Second World War has
given rise to reparations demands in the context of other international armed conflicts,
including those presented by individuals harmed by the NATO bombing in the Federal
Republic of Yugoslavia,272 by British troops during the military intervention against
Iraq,273 and by peacekeepers in Kosovo.274
Perhaps because of these claims or greater recognition of the right to a remedy, there
is an emerging practice of ex gratia payments, as well as apologies and assistance for harm
caused by military operations.275 In 2010, NATO adopted ‘Non-Binding Guidelines
for Payments in Combat-Related Cases of Civilian Casualties or Damage to Civilian
Property’,276 providing that troop-contributing states should seek to pro-actively assist
civilian casualty cases or assist with damages to civilian property in order to mitigate
human suffering. A NATO Claims Office now exists to facilitate payment of compensa-
tion to civilians injured by NATO forces in non-combat situations.277 The UN Human
Rights Council recommended application of the NATO guidelines to the intervention
in Libya in 2012.278 Ex gratia payments are nearly always accompanied by a stipulation
that the compensation is not an admission of liability or of violations of the laws of
armed conflict.279
As the next section discusses, the vast majority of precedents involve lump-sum settle-
ments followed by distribution through national administrative claims commissions.280
Most lump sum agreements have been one-sided, usually from the losing party to the
winning one. Other conflicts have ended in arbitral proceedings, most recently exempli-
fied by the Ethiopia-Eritrea arbitration, or in mass claims procedures, such as that estab-
lished by the United Nations following Iraq’s invasion of Kuwait in 1991. The following
sections discuss each of these types of remedial procedures.

5.5.1 Lump sum settlements

War reparations are usually settled by agreement between the belligerents. The peace
treaties concluded after the First World War included clauses on reparations and

272
  See Liesbeth Zegveld, ‘Remedies for Victims of Violations of International Humanitarian Law’,
85 IRRC (2003), 497, 502, 504; Bridge of Varvarin case, LG Bonn (Regional High Court), NJW 2004,
525 et seq., OL6 Kolo (Court of Appeal), 7U 8/04 (28 July 2005).
273
  High Court, Al-Skeini, EWHC (2004) 2911 (Admin.).
274
  European Court of Human Rights Behrami and Behrami v. France; Saramati v. France, Germany
and Norway, (GC)(2007).
275
  See Sarah Holewinski, ‘Making Amends:  A  New Expectation for Civilian Losses in Armed
Conflict, in Daniel Rothbar, Karina Korostelina, and Mohammed Cherkaoui, (eds.), Civilians and
Modern War: Armed Conflict (New York, 2012), 317–333.
276
  SG(2010)0377, 9 June 2010.
277
  NATO, ‘Claims Policy for Designated Crisis Response Operations’, AC/119-N(2004)0058,
5 May 2004.
278
  Report of the 15th Special Session of the Council, UN Doc. A/HRC/19/68, 25 Feb. 2011, para. 130(b).
279
  On the practice of the United States, for example, see:  US Department of the Army, ‘Legal
Services Claims Procedures’, Pamphlet 27-162, 21 March 2008, para. 10-10; US Government
Accountability Office, ‘Military Operations: The DOD’s Use of Solatia and Condolence Payments in
Iraq and Afghanistan’ (May 2007).
280
  See Burns W. Weston, Richard B. Lillich, and David J. Bederman, International Claims: Their
Settlement by Lump Sum Agreements, 1975-1995 (Charlottesville, 1999). Sean D. Murphy, United States
Practice in International Law, i (Cambridge, 1999–2001), 153–154. For an example of a bilateral and
reciprocal payment of claims, see the US-Chinese agreement of 1999, Memorandum of Understanding
between the Delegation of the US of A and the Delegation of the PRC, July 20, 1999 in Sally J. Cummins
and David P. Stewart (eds.), Digest of US Practice in International Law 2000 (Washington, 2001), 428.
 International Tribunals 181

compensation,281 establishing a Reparation Commission representing the victorious

Allied powers that determined the level of damages to be paid by Germany. A provision
of the Treaty of Sevres concluded between the Allies and Turkey in 1920 similarly pro-
vided for the restitution of property of the Armenians killed by the Turks. At the conclu-
sion of the Second World War, Article 14 of the 8 September 1951 Peace Treaty between
the Allies and Japan ‘recognized that Japan should pay reparations to the Allied Powers
for damage and suffering caused by it during the war’. Article 16 of the same treaty dealt
with indemnification of former prisoners of war in the hands of the Japanese:
As an expression of its desire to indemnify those members of the armed forces of the Allied Powers
who suffered undue hardships while prisoners of war of Japan, Japan will transfer its assets and
those of its nationals in countries which were neutral during the war, or which were at war with any
of the Allied Powers, or, at its option, the equivalent of such assets, to the International Committee
of the Red Cross which shall liquidate such assets and distribute the resultant fund to appropriate
national agencies, for the benefit of former prisoners of war and their families on such basis as it
may determine to be equitable.282
The Article thus gave the International Committee of the Red Cross (ICRC) a man-
date to distribute funds on an equitable basis. With the accord of the beneficiary states,
the ICRC decided that each national quota would be directly shared among beneficiaries
according to criteria chosen by the national agencies. Solutions varied from one state to
another.
One of the most comprehensive systems of compensation for war-time human rights
violations was created by Germany for victims of Nazi persecution. From 1939 onward,
those who had escaped from countries overrun by the Germans demanded compen-
sation for property and monies taken from them.283 Some argued that in addition to
individual compensation, a collective claim must be presented for reparation to the
Jewish people for the property whose owners were unknown or dead, for institutions
and communities that had been destroyed or had vanished, and for damage done to the
very fabric of the Jewish people’s existence.284 Collective reparations became a key issue
and by 1945 the estimates exceeded 6 billion dollars.285
The Paris Reparations Conference (9 November to 21 December 1945) accepted
the principle that individual and group compensation should be paid to the ‘victims
of Nazi persecution in need of rehabilitation and not in a position to secure assistance
from governments in receipt of reparation from Germany’.286 Restitution would apply
to identifiable property which had been seized during the period of conquest with or

281
  Treaty of Peace at Versailles, 28 June 1919, Arts. 231–47 and the seven annexes that appear
between Arts. 244 and 245. Annex I mentions compensation due to civilians and prisoners of war: Treaty
of Peace at Versailles, 28 June 1919, Ger.-Allies, 225 Consol. T.S. 188, Art. 231.
282
  Japanese Peace Conference, San Francisco, California, Sept. 1951, Doc. 3, pp. 13–14.
283
  The first public demand came from Shalom Adler-Rudel, who left Germany and became Director
of the Central British Fund to aid Jewish refugees. On 10 Oct. 1939, he drafted a memorandum con-
taining concrete proposals for collecting factual information relating to Jewish demands for compensa-
tion from Germany. On 6 Mar. 1941, he wrote a second memorandum estimating the damage inflicted
by the Nazis on the Jews of Germany and Austria at DM4 billion. ‘He also underscored the sui generis
character of the situation as being not one of warring states, but of a state’s striking at and declaring war
on its own citizens’. Nana Sagi, German Reparations: A History of the Negotiations (Jerusalem, 1980), 15.
284
 Ibid, 19. 285
 Ibid, 27.
286
  Sir Herbert Emerson, head of the Inter-Governmental Committee for Refugees, submitted a
memorandum to the Allied Governments on 3 June 1943 stating his view that the declaration should
apply not only to war-time seizures but also to those carried out before the war on grounds of race, reli-
gion or political opinion, and to those who were unable to flee as well as those who had escaped: ibid,
9, 34–5.
182 The Institutional Framework

without payment. Indemnification was to be paid for objects of an artistic, educational

or religious character which had been seized by the Germans but which could no longer
be restored to their rightful owners.287 Claimants who could prove they had been held
in concentration camps would receive a sum for deprivation of liberty in the amount of
DM3,000. An overall cap of DM25,000 was set for damage that occurred before 1 June
1945. Another DM450 million was paid to the Conference on Jewish Material Claims
against Germany, a common holding for twenty-three Jewish organizations, on behalf
of Jewish victims living outside Israel.
Successive German Compensation Laws and Agreements were enacted and con-
cluded between 1948 and 1965, included a 1952 Treaty between the Federal Republic of
Germany (FRG) and Israel.288 Article I recited that: ‘The Federal Republic of Germany
shall, in view of the considerations hereinbefore recited, pay to the State of Israel the sum
of 3,000 million Deutsche Marks’. Between 1959 and 1964 the FRG also concluded
conventions with twelve member states of the Council of Europe providing for payment
of DM876 million for the injury to life, health and liberty of their nationals. Another
DM101 million was provided to Austria. Further contributions were agreed to with
states in Eastern Europe for the victims of pseudo-medical experiments (DM122 mil-
lion) and to the United Nations High Commissioner for Refugees (DM57 million).
By 1988 Germany had paid a total of 80.57 billion DM. In 1990, the former GDR,
by a unilateral declaration, offered the World Jewish Congress the additional sum of
US$100 million.
The German reparations law, the Federal Law on Reparation (the Bundesent­
schaedigungsgesetz) compensated anyone who was oppressed because of political opposi-
tion to National Socialism, or because of race, religion or ideology, or who suffered in
consequence loss of life, damage to limb or health, loss of liberty, property or possessions,
or harm to professional or economic prospects.289 The law also provided for former
members of the German civil service or the German government, including judges,
professors and teachers, to be reinstated in the position, salary or pension group which
they would have reached had the persecution not taken place.290
Despite Germany’s laudable efforts to provide reparations, unresolved Second
World War injuries and losses remain and have been asserted in litigation and negotia-
tions.291 When the German courts interpreted the agreement reunifying East and West
Germany292 as lifting the London Debt Agreement’s moratorium on Holocaust claims
by foreign nationals, many class-action lawsuits for restitution and/or damages were
filed in the United States against companies doing business in Germany during the

287
 Ibid, 11–12.
288
  Treaty between the Federal Republic of Germany and Israel, 162 UNTS 265.
289
  K. Schwerin, ‘German Compensation for Victims of Nazi Persecution’ (1972) 67 NW.U.L.Rev.
479, 496.
290
  Report of the Secretary-General ‘Restitution, rehabilitation and compensation for victims of
grave violations of human rights and fundamental freedoms’, prepared pursuant to Sub-Commission
Resolution 1993/29, E/CN.4/Sub.2/1994/7/Add.1, 22 July 1994, 2, para. 3.
291
  More than 60,000 cases were filed in Greek courts as of Oct. 2001 arising out of the events of the
Second World War. Rudolf Dolzer, ‘The Settlement of War Related Claims: Does International Law
Recognize a Victim’s Private Rights of Action? Lessons after 1945’, in ‘Fifty Years in the Making: World
War II Reparation and Restitution Claims’ (2002) 20 Berkeley J. Int’l L. 1, 296, 297, n. 2. On 30 Oct.
1997 a Greek court entered a default judgment against Germany and awarded damages. After the Greek
government blocked enforcement of the judgment, Greek nationals sued in Germany seeking a declara-
tory judgment of liability. On 26 June 2003, the German Supreme Court held that Germany was not
liable because the law in 1944 did not grant standing to individuals to pursue claims for violations of
the laws of war.
292
  See Treaty on the Final Settlement with Respect to Germany, 12 Sept. 1990, 1696 UNTS 124.
 International Tribunals 183

Nazi era.293 Actions also were filed in various European countries, but sovereign immunity
precluded many of these actions.294
Most lawsuits against Nazi-era companies who allegedly used forced and slave labour295
have been dismissed as precluded by the German settlement agreements or as time-barred,296
but the pressure generated by the suits led some companies to make ex gratia payments
through a foundation to resolve claims.297 In one settlement, the government of France
agreed to pay reparations to American survivors of the Holocaust who were deported to
death camps in French trains. The bilateral accord, signed on 8 December 2014, involves a
US$60 million lump sum payment to be distributed by the US government among survi-
vors, spouses, and their heirs in case the victims are deceased. Those who accept the compen-
sation are obliged to sign a waiver agreeing not to pursue litigation. The US government in
turn agreed to support French sovereign immunity in the event lawsuits are filed.298

5.5.2 United Nations Compensation Commission (UNCC)

The 1990 conflict in the Persian Gulf created new law and procedures on reparations for
mass violations during armed conflict.299 On 2 August 1990 Iraq invaded Kuwait, fol-
lowing which the United Nations Security Council adopted twelve resolutions concern-
ing the occupation of Kuwait by Iraq. In Resolutions 674 (1990) and 687 (1991), the
Council affirmed that Iraq ‘is liable under international law for any direct loss, damage,
including environmental damage and the depletion of natural resources, or injury to
foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion
and occupation of Kuwait’. It also affirmed that ‘the Fourth Geneva Convention applies
to Kuwait and that as a High Contracting Party to the Convention, Iraq . . . in particular
is liable under the Convention in respect of the grave breaches committed by it’.300
The United Nations Special Rapporteur on the Situation of Human Rights in Kuwait
under Iraqi Occupation found Iraq responsible for gross and systematic human rights
violations during the conflict, including summary and arbitrary executions, widespread
and systematic torture, deportation of large numbers of civilians to Iraq, the use of
third-country nationals as hostages (human shields), and the extensive destruction of
crucial infrastructure in Kuwait, including health and educational facilities, as well as
environmental damage.301 He called for compensation for material and non-material

293
  See, generally, M. Bayzler, ‘Nuremberg in America: Litigating the Holocaust in United States
Courts’ (2000) 34 Rich. L. Rev. 1.
294
  Kalogeropoulou et al. v. Greece and Germany, App. No. 5902/21/00; The Distomo Massacre Case
(Greek Citizens v. Federal Republic of Germany), supra n. 267.
295
  The cases against private companies for utilizing slave and forced labour were consolidated in In
Re Holocaust Era German Industry, Bank and Insurance Litigation, No. 1337, 2000 US LEXIS 11650
(4 Aug. 2000).
296
 See Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999); Burger-Fischer v. Degussa A.G.,
65 F. Supp. 2d 248 (D.N.J. 1999).
297
  Roger Cohen, ‘German Companies Adopt Fund for Slave Laborers Under Nazis’, New  York
Times, 17 Feb. 1999, A1.
298
  ‘France to Compensate U.S. survivors of Holocaust’, Washington Post, 6 Dec. 2014, A8.
299
  David J.  Bederman, ‘The United Nations Compensation Commission and the Tradition of
International Claims Settlement’ (1994) 27 Int’l L. & Pol. 1.
300
  Resolutions 670/1990 and 674/1990.
301
 Walter Kalin, Report on the Situation of Human Rights in Kuwait under Iraqi Occupation,
E/CN.4/1992/18; E/CN.4/1992/26. See also L. Gabriel, ‘Victims of Gross Violations of Human
Rights and Fundamental Freedoms arising from the Illegal Invasion and Occupation of Kuwait by Iraq’
in Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of
Human Rights and Fundamental Freedoms (SIM Special No. 12), 29.
184 The Institutional Framework

damage to victims of human rights violations and grave breaches of humanitarian

norms, regardless of the nationality and present status of the victims.302
The decision of the Security Council to establish the UNCC has been described
as ‘tantamount to a summary judgment holding Iraq responsible for a whole series of
breaches of international law’.303 The funding mechanism was a fixed 30 per cent of the
annual value of the exports of petroleum and petroleum products from Iraq.304 Brower
called it a ‘reparations royalty’.305
Between 1991 and 31 July 1998, the UNCC Governing Council adopted decisions
governing the claims procedures, including expedited processing of certain claims,
means to prove business losses, procedures for individuals not in a position to have their
claims submitted by a government, and processing cross category claims. It also made
decisions on payment and distribution of compensation.306
The UNCC relied on the practice of international tribunals hearing claims of state
responsibility for injury to aliens. It also looked to United States mass tort claims admin-
istration as a model for the Iraq claims process. It thus used ‘some of the techniques and
arts of sampling that were developed in the [U.S.] asbestos and Dalkon Shield cases’.307
The Commission decided to create six categories of claims and to request states to
present their claims accordingly. The amounts were awarded to the governments for
distribution to the applicants.308 The first category of claims, ‘A’ claims, concerned indi-
viduals forced to leave Kuwait or Iraq as a result of the invasion. They could claim a fixed
sum of US$2,500 with a limit of US$5,000 per family. Higher amounts (US$4,000 and
US$8,000) were allowed if all other claims must be waived. Less evidence was required
of ‘A’ claims and they were processed faster than other claims. Compensation in greater
amounts was awarded only if supported by ‘documentary and other appropriate evi-
dence sufficient to demonstrate the circumstances and the amount of the claimed loss’.
The UNCC reviewed claims to determine whether they were realistic or inflated,309
but the vast number of claims almost precluded close scrutiny of individual cases. ‘B’
claims concerned serious personal injury or death, and claimants could seek between
US$2,500 and US$10,000 per family without lengthy process. Category ‘B’ claims had
priority over all other claims, for humanitarian reasons.
Other claims of personal injury, death or other loss, with appropriate evidence, could
be filed up to US$100,000 as a category ‘C’ claim. ‘C’ claims included losses of prop-
erty or other interests, damages arising from personal injury, ‘including mental pain
and anguish’. ‘D’ claims were losses over US$100,000, paid after A to C claims were
compensated. Category ‘E’ was corporate claims, and ‘F’ the claims of governments and

302
 E/CN.4/1992/18, supra n. 301, para. 22.
303
  S. Gold, ‘International Claims Arising from Iraq’s Invasion of Kuwait’ (1991) 25 Int’l Law
713, 715.
304
  UNSC Res. 705 (1991) SCOR, 46th Sess., para. 2, UN Doc. S/RES/705 (1991) reprinted in
(1991) 30 ILM 1715.
305
  C. Brower, ‘Lessons to be Drawn from the Iran-U.S. Claims Tribunal’ (1992) 9 J. Int’l Arb.51.
306
  Decision 3 of 23 Oct. 1991, UN Doc. S/AC.26/1991/3, governs personal injury and mental pain
and anguish. Decision 7 establishes criteria for additional categories of claims (e.g. corporations) and
excludes compensation for losses from trade embargo. Decision 8, 1992/8 of 27 Jan. 1992, determined
the ceilings of compensation for mental pain and anguish. Decision 9, 1992/9 of 6 Mar. 1992 estab-
lished types of business losses and their valuation. Decision 16, 1992/16 of 4 Jan. 1993, covers interest.
Decision 19/1994 establishes criteria for compensation of costs of allied coalition forces.
307
  N.C. Ulmer, ‘The Gulf War Claims Institution’ (1993) 10 J. Int’l Arb. 85, 88.
308
  UNRWA could present claims for Palestinian refugees and UNDP for those from the occupied
territories.
309
 Ulmer, supra n. 307, 90.
 International Tribunals 185

international organizations. Members of the armed forces were not eligible for compen-
sation unless they were prisoners of war or the loss or injury ‘resulted from mistreatment
in violation of international humanitarian law’.310
At its second session, held on 18 October 1991, the Governing Council adopted
formulations and definitions of various injuries. It defined serious personal injury to
mean:  ‘dismemberment, permanent or temporary significant disfigurement, such as
substantial change in one’s outward appearance; permanent or temporary significant
loss of use or limitation of use of a body organ, member, function or system; any injury
which, if left untreated, was unlikely to result in the full recovery of the injured body
area, or was likely to prolong such full recovery’. For purposes of recovery the term also
included: ‘instances of physical or mental injury arising from sexual assault, torture,
aggravated physical assault, hostage-taking or illegal detention for more than three days
or being forced to hide for more than three days on account of a manifestly well-founded
fear for one’s life or of being taken hostage or illegally detained’. Serious personal injury
did not include bruises, simple strains and sprains, minor burns, cuts and wounds; or
other irritations not requiring a course of medical treatment; it was accepted that armed
conflict will produce some injuries that must be borne by the victims.
Pecuniary losses included loss of income and medical expenses, mental pain and
anguish due to the death of a spouse, child or parent of the individual, or the individual’s
serious personal injury or the individual’s suffering a sexual assault or aggravated assault
or torture. Compensation could be awarded for mental pain and anguish to individuals
for dismemberment, disfigurement, loss of use of a body part, being taken hostage, being
illegally detained, having a well-founded fear for one’s life, and being deprived of all
economic resources such as to threaten one’s survival.311 The United Nations published
a scale of mental pain and anguish for most of the situations faced by individuals during
the conflict. Victims of aggravated assault, sexual assault, or torture could claim up to
$5,000 per incident.312 The Commission awarded interest on the principal amount of
successful claims, to accrue from the date of the loss until the date of payment.
In Decision 8, the UNCC established compensation ceilings that ranged from
US$1,500 for being a hostage, to US$15,000 for the death of a spouse, child or par-
ent; US$30,000 per family. In cases of cumulated injury, the Governing Council set
an overall ceiling of US$30,000 per claimant or US$60,000 per family. Although the
individual amounts were not high, the high number of claimants required limitation to
avoid exhausting the funds.313 It is not clear what sources were used to arrive at the fig-
ures, but it should be noted that international tribunals generally have been reluctant to
use figures from accidental injury tables to measure the compensation due for deliberate
human rights violations.314

310
  Decision taken by the governing council of the UNCC at its sixth session, 27th meeting held on
26 June 1992: Eligibility for compensation of members of the allied coalition armed forces, S/AC.26/1992/11
(26 June 1992).
311
  Decision taken by the Governing Council of the United Nations Compensation Commission during its
second session, at its 15th meeting, held on 18 October 1991, Personal Injury and Mental Pain and Anguish,
Decision 3, U.N. Compensation Commission, 2nd sess. para. 2, UN Doc. S/AC.26/1991/3.
312
 Ibid.
313
  It should be noted that the United Nations has its own schedule of payments for death and disabil-
ity benefits, based on the nature of the injury its employee suffers. The amounts range from US$1500
for loss of a finger to US$50,000 for loss of both arms or both hands. United Nations, Financing of the
U.N. Peacekeeping Operations: Death and Disability Benefits, reprinted in ‘The Price of Peacekeeping’,
Harper’s Magazine, July 1996, 16.
314
  See e.g. Velásquez-Rodríguez v.  Honduras (Compensatory Damages), Inter-Am.Ct.H.R., Ser.
C No. 7 (1990).
186 The Institutional Framework

Decision 9 provided that the compensation due for Iraqi breach of contract extended
to all actual losses suffered, including losses related to specially manufactured goods and
lost profits ‘if they can be calculated under the contract with reasonable certainty’. For
loss of tangible property ‘depending on the type of asset and the circumstances of the
case’, one of several valuation methods were used,315 mostly book value (its cost minus
accumulated depreciation) or replacement value (the amount required to obtain an asset
of the same kind and status as the asset damaged or lost). ‘Replacement value would not
normally allow for replacement of an old item with a new one’.316
Loss of income-producing assets was valued differently because of the greater value
they possess due to their capacity to generate income.317 In principle Iraq was deemed
liable to compensate for the loss of a business or commercial entity as a whole resulting
from the invasion and occupation. In general lost profits that could be ascertained with
reasonable certainty were included, based on past performance including prior earnings
and profits.
Only category C claims explicitly excluded the possibility of recovering attorneys’
fees paid for the presentation of a claim. With no similar provision in other parts of the
rules, the UNCC could award attorneys’ fees and expenses. Given that translations were
required for presentation of claims and all evidence, recovery of costs was equitable,
especially in light of the limited amounts recoverable.
The UNCC was generally considered to be successful in providing reparations. It
processed over 2.6 million claims and paid out over $18.8 billion in compensation,
mostly for individuals who were poor and from developing countries. It helped that the
UN Security Council supported its creation and functioning, but its innovative design
and flexible procedures for handling a massive number of claims were critical to its suc-
cess. In the end, more than ninety countries presented claims. Fortunately, Iraq had the
resources to pay the awards that were ordered,318 something unusual following interna-
tional or internal armed conflicts.
Other mass claims processes have adopted the UNCC process with some modifica-
tions. The Claims Resolution Tribunal for Dormant Bank Accounts in Switzerland,
for example, was created in 1996 and expanded after a US court approved $1.2 billion
lump sum settlement of US litigation concerning Swiss banks’ retention of accounts
of Nazi victims. The Bosnia-Herzogovina claims process, concluded in 2003, issued
over 311,000 final binding decisions.319 Kosovo created a similar process to handle over
29,000 claims.
The commonalities in these programs are that large numbers of similarly situated
people have suffered similar injuries; an entity is created with the power to make an
authoritative judgment about the injuries and award the appropriate compensation.
The process usually groups comparable claims, fixes amounts for at least some of the
grouped claims, uses standardized claims forms to obtain comparable or uniform data,

315
  Decision taken by the Governing Council of the United Nations Compensation Commission dur-
ing its resumed Fourth Session, at the 23rd meeting, held on 6 Mar. 1992, Propositions and Conclusions
on Compensation for Business Losses:  Types of Damages and their Valuation, para. 15, Dec. 9,
S/AC.26/1992/9, 4.
316
  Ibid para. 15. 317
  Ibid para. 16.
318
  See C. Gibson (ed.) Gulf War Reparations and the UN Compensation Commission:  Designing
Compensation after Upheaval (Oxford, 2012); on mass claims procedures, see Permanent Court of
Arbitration (ed.), Redressing Injustices through Mass Claims Processes:  Innovative Responses to Unique
Challenges (Oxford, 2006).
319
  See Hans Van Houtte, ‘Mass Property Claims Resolution in a Post-War Society: The Commission
for Real Property Claims in Bosnia and Herzegovina’, in Institutional and Procedural Aspects of Mass
Claims Settlement Systems 23 (PCA, ed. 2000).
 International Tribunals 187

awards modest compensation for small claims based on minimal evidentiary showings;
and relies heavily on technology, including data processing to cross-check claims against
independent data, often relying on statistical sampling of evidence. To be successful,
there must be an underlying consensus about the process, including the necessary sacri-
fice of individualized treatment of victims. Finally, there must be adequate resources to
pay for claims processes itself and the damages awarded.

5.5.3 The Ethiopia/Eritrea arbitration

In December 2000, the Algiers Agreement between Ethiopia and Eritrea ended the
armed conflict of 1998–2000.320 Article 5 of the Algiers Agreement established a
Commission with a mandate ‘to decide through binding arbitration all claims for loss,
damage or injury by one Government against the other, and by nationals (including
both natural and juridical persons) of one party against the Government of the other
party or entities owned or controlled by the other party…’ Only one year was given
for filing complaints and a remarkably short three years for the work to be completed.
Consultations between governments and commissioners led to adoption of Rules of
Procedure by October 2001.321
Ethiopia filed nine claims and Eritrea filed thirty-two, covering thousands of
people.322 The claims related to prisoners of war, treatment of enemy aliens and their
property; expulsion of enemy aliens; harm to diplomats and diplomatic property, and
aerial bombardment. The Commission envisaged two types of procedures, one for indi-
vidual claims and another for mass claims,323 but neither party used the mass claims
procedure and all claims were filed as individual ones by the governments.
The mandate required the Commission to find loss, damage or injury due to ‘viola-
tions of international humanitarian law, including the 1949 Geneva Conventions, or
other violations of international law’. In determining violations of international law, the
Commission relied on treaties and customary international law, including the Geneva
Conventions of 1949, Protocol I to the Conventions, and the 1907 Hague Regulations
(as customary international law because Eritrea was not a party to the 1907 Convention).
Art. 75 of Protocol I was deemed to reflect particularly important customary principles
distilling basic human rights applicable in wartime. ‘Given their fundamental humani-
tarian nature and their correspondence with generally accepted human rights principles’,
the Commission viewed these rules as part of customary international humanitarian
law.324 Yet, human rights law generally played little direct role, although Eritrea cited the

320
  Agreement (Eri.-Eth.), 12 Dec. 2000, 2138 UNTS 94, 40 ILM 260 (2000 Algiers Agreement).
See generally Sean D. Murphy, Won Kidane, Thomas R. Snider, Litigating War: Mass Civil Injury and
the Eritrea-Ethiopia Claims Commission (Oxford, 2013) [hereinafter Murphy].
321
 Ibid, 321.
322
  Merits decisions include: POW claim (Ethiopia’s Claim 4) Partial Award 1 July 2003; Central
Front Ethiopia’s Claim 2, Partial Award, 28 April 2004; Civilian claims (Ethiopia’s Claim 5) Partial
Award 17 Dec. 2004; Jus ad Bellum (Ethiopia’s Claims 1-8), Partial Award, 19 Dec. 2005; Western
and Eastern Fronts (Eth. Claims 1 & 3) Partial Award, 19 Dec. 2005; Ports (Claim 6) Final Award,
19 Dec. 2005; Economic Loss throughout Eth. (Claim 7), Partial Award, 19 Dec. 2005; Diplomatic
Claim (Claim 8), Partial Award, 19 Dec. 2005. RIAA, Eritrea-Ethiopia Claims Commission—Final
Award—Ethiopia’s Damages Claims, 17 August 2009, xxvi, 631–770.
323
  Lower evidentiary requirements and fixed compensation were set for six categories of mass claims
by the Rules of Procedure, arts. 30–33: unlawful expulsion; unlawful internal displacement; unlawful
treatment of POWs; unlawful detention and mistreatment of civilians; and loss, damage or injury not
covered by the preceding four categories.
324
  Eritrea’s Civilians Claim, Partial Award, para. 30.
188 The Institutional Framework

ICCPR in its Central Front claim325 and some human rights law was applied with refer-
ence to treatment of enemy aliens present in a belligerent’s territory.
In Decision No. 3, entitled ‘Remedies’, the Commission decided that ‘in principle, the
appropriate remedy for valid claims submitted to it should be monetary compensation’
without foreclosing the possibility of providing other types of remedies in appropriate
cases. In this respect, Article 5 of the Algiers agreement referred to the parties’ com-
mitment to ‘addressing the negative socio-economic impact of the crisis on the civilian
population’. Both parties sought extremely large amounts of money, especially in relation
to the economic capacity of each country. Perhaps unexpectedly, human rights law was
invoked to limit recovery. According to Murphy, ‘[a]‌t the damages phase, the commission
relied on provisions of the ICCPR and the ICESCR in explaining why extensive compen-
sation could not be awarded to Ethiopia for Eritrea’s violation of the jus ad bellum’.326 The
Commission clearly considered human rights law in determining its awards:
The size of the Parties’ claims raised potentially serious questions involving the intersection of the
law of State responsibility with fundamental human rights norms, given that both Ethiopia and
Eritrea are parties to the International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights and both Covenants provide in Article I(2)
that ‘[i]‌n no case may a people be deprived of its own means of subsistence.’327
The Commission also cited the General Comments of the Committee on Economic,
Social and Cultural Rights, noting that they have been endorsed and taken as guides to
action by many interested observers and the United Nations’ development agencies. In
this respect, the Commission found that:
awards of compensation of the magnitude sought by each Party would impose crippling burdens
upon the economies and populations of the other, notwithstanding the obligations both have
accepted under the Covenants. Huge awards of compensation by their nature would require large
diversions of national resources from the paying country—and its citizens needing health care,
education and other public services—to the recipient country. In this regard, the prevailing prac-
tice of States in the years since the Treaty of Versailles has been to give very significant weight to
the needs of the affected population in determining amounts sought as post-war reparations.328
The Commission awarded Eritrea US$161,455,000 for sixteen findings of liability and
another $2,065,865 for five individual Eritreans.329 Ethiopia was awarded $174,036,520.
In a few instances, the declaration of liability was held to constitute sufficient satisfaction,
relying on the Corfu Channel case and the Rainbow Warrior arbitration, in reference to
non-material injury.330 One such claim involved an illegal search of Eritrean diplomatic
personnel by Ethiopia, where there was no material injury. The Commission rejected
Eritrea’s request for an order for the return of property taken from Eritrean prisoners of
war, including photographs and other personal effects. ‘The Commission did so on the
basis that Eritrea was not able to establish that this kind of remedy was in accordance with
international practice or that it was reasonable and appropriate in this case’.331 If the taking
of personal property was illegal, then restitution is precisely the ‘kind of remedy’ that should
be afforded, especially as it would not face the limited resource issue raised by compensation.
The Commission may not have considered the taking of personal property illegal or perhaps
felt an order of restitution would be impossible to fulfil in the circumstances.
325
 Murphy supra n. 320 at 76.
326
  Ibid, 80. See also Eritrea’s Damages, Final Award, paras. 19–20.
327
  Eritrea’s Damages, Final Award, para. 18.    328  Ibid, para. 21.
329
  Eritrea’s Damages, Final Award, sex. IX (20–21). The five individual claims concerned depriva-
tion of property and lack of access to bank accounts.
330
  Eritrea’s Damages, Final Award, para. 386.
331
  Eritrea’s POW Claim, Partial Award, paras. 78–79.
 International Tribunals 189

As in most cases of armed conflict, the factual basis for the claims proved problem-
atic: ‘Both during the merits phase and perhaps even more during the damages phase,
the commission was confronted with requests for wide-ranging findings of liability and
compensation that required either a willingness to rely on very limited evidence to sup-
port broad findings or a willingness to deny recovery in situations in which, clearly, a
violation of some kind had occurred but of an uncertain magnitude’.332
In assessing whether a particular injury was due to the violation of international
law, the Commission applied a test of ‘reasonable foreseeability’.333 The test has been
criticized as highly subjective,334 and there was no explanation as to why it was adopted
over other tests.
In setting compensation amounts, the Commission made clear that deterrence was
not a factor. It also declined to make a precise quantification of each type of harm suf-
fered, because this would have been too difficult given the scale of injury. Instead, it said it
was making the ‘best assessment, drawing upon a variety of indicators’ which ‘frequently
involved rough approximations’.335 The Commission was clear that it considered certain
violations merited more compensation than others because they were ‘inherently more
grave’.336 Although this suggests a victim-oriented approach, the Commission also took
into account the financial burden on the wrongdoer.
For physical abuse, the Commission set an amount of compensation based on
its general assessment of the evidence. Ethiopia proposed a methodology which the
Commission rejected. The Commission recognized that some of the proposed tech-
niques had been used in mass claims processes, but it objected that Ethiopia’s proposal
claimed the full amount of material damage instead of correlating lower damages with
lesser evidence. As for moral damages, the Commission expressed ‘great reservations’
about the amounts claimed. The Commission found that they were ‘wholly dispro-
portionate’ to Eritrea’s limited economic capacity and realistically could not be paid or
would be paid only at an unacceptable cost for years to come. Instead, the Commission
said that ‘in appropriate cases’ it would examine the gravity of a particular type of viola-
tion and the extent and consequences of the resulting human injury, in determining
the damages to be awarded, with no separate calculus of moral damage.337 Thus, for
rape, the Commission considered ‘that this serious violation of international humani-
tarian law demands serious relief. Neither symbolic nor nominal damages will suffice in
the face of the physical, mental and emotional harm known to be suffered by rape
victims’.338 Similarly, in POW claims, the Commission asked which claims were the
‘most serious’ generating the ‘heaviest damages’; how many victims were there; how seri-
ous were the resulting injuries. Particular violations categories were considered as ‘most
serious’: killings, beatings or other physical or mental abuse; enforced indoctrination;
poor conditions seriously and adversely affecting prisoner health; diet seriously deficient
in nutrition; lack of medical care; and refusing ICRC access.
For property claims, the Commission awarded lost profits for damaged or destroyed
businesses if the lost profits were proven and if there existed a sufficient nexus between
that loss and the violation of international law. Some claims lacked proof. In general
the Commission noted that evidence of the extent of physical damage to buildings and

332
 Murphy, supra n. 320, 62. 333
  Dec. No. 7, para. 13.
334
 Murphy, supra n. 320, 132. 335
  Ethiopia’s Damages, Final Award, para. 310.
336
 Ibid, para. 311.      Ethiopia’s Damages, Final Award, paras. 61–65.
337
338
  Eritrea’s Damages, Final Award, para. 238; Ethiopia’s Damages, Final Award, para. 109. The
Commission awarded $2 million to each side; $6.75 million had been sought by each. No explanation
was given for the amounts.
190 The Institutional Framework

infrastructure is more readily gathered and presented than is evidence of the extent of
injuries, including physical, economic and moral injuries, to large numbers of individu-
als. At the same time, it was not possible to make a sharp distinction between property
losses and personal injuries, because the former can determine the latter in a poor coun-
try with low incomes and life expectancies.339

5.6 Conclusions
The jurisprudence of international tribunals supports the existence of a right to a remedy
in international law. From the long-standing claims practice on injury to aliens to the
modern mass claims procedures, it has been recognized that the breach of an interna-
tional obligation gives rise to a duty to cease the breach and afford reparations. The devel-
opment of human rights procedures over the past six decades has brought with it new
venues in which the right to a remedy can be pursued following the exhaustion of local
remedies. Those venues and the mandates of human rights treaty bodies are discussed in
the next chapter.

339
  ‘Property such as livestock, farmers’ tools, utensils and houses has a direct impact on one’s pos-
sibility to survive’. Final Award, para. 4.
 6
The Functions and Competence
of Human Rights Tribunals

6.1 Introduction
Human rights treaties outline mechanisms to monitor compliance by states parties
with the rights and duties prescribed therein. International supervisory organs, gener-
ally composed of independent experts, typically have ‘competence with respect to mat-
ters relating to the fulfilment of the commitments made by the States Parties to th[e]‌
Convention’1 or a mandate to ‘ensure the observance of the engagements undertaken
by the High Contracting Parties’.2 United Nations treaty bodies review periodic reports
that must be filed by states parties, and they may have jurisdiction to receive individual
and interstate complaints.3 Complaints procedures are sometimes included in optional
clauses within the treaty itself,4 but are more often contained in a separate protocol,
which the state must also accept.5 The ICESCR is unique in having no individual com-
plaints procedure; instead, it provides for collective complaints pursuant to an optional
protocol.6 As of the end of 2014, all UN member states have adhered to at least one of
the nine core human rights treaties and three-quarters of them have ratified or acceded
to six or more.
No global human rights treaty makes specific reference to the competence of a
monitoring body to afford remedies for human rights violations. International com-
plaints procedures were relatively late in coming to the United Nations (first included
as a optional clause in the 1965 Convention on the Elimination of All Forms of Racial
Discrimination) and they remain weaker than regional mechanisms. Human rights
treaty bodies that hear complaints nonetheless express their views on remedies as part of
their inherent or implied authority to decide matters properly before them.
In general, monitoring bodies undertake fact-finding and prepare a report on the
merits of admissible communications. The report may declare that a violation has
occurred and recommend an appropriate course of action, including remedies for the
victim. Regional systems in Europe, the Americas, and Africa parallel and extend the

1
  American Convention on Human Rights (22 November 1969), Art. 33, 1144 UNTS 123, OASTS
No. 36, 1.
2
 European Convention for the Protection of Human Rights and Fundamental Freedoms
(4 November 1950) Art. 19, 213 UNTS 221 as amended by Protocols No. 11 and 14.
3
  The eighteen-member Human Rights Committee for example supervises state compliance with the
ICCPR by reviewing and commenting on periodic reports. It also administers an optional inter-state
complaint mechanism provided for in the CCPR, and considers individual petitions submitted pursu-
ant to the CCPR’s First Optional Protocol (16 December 1966) 999 UNTS 171.
4
  E.g., CERD, Art. 14; Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) UN Doc.
A/45/49, Arts. 76, 77.
5
  See, e.g., Optional Protocol to the Convention on the Rights of the Child on a Communications
Procedure (19 December 2011) UN Doc. A/RES/66/138; Optional Protocol to the Convention on the
Rights of Persons with Disabilities (13 December 2006) UN Doc. A/61/611.
6
 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(10 December 2008) UN Doc. A/RES/63/117.
192 The Institutional Framework

global efforts. In particular, three regional systems allow at least some cases to be heard
by a court that can issue binding judgments on remedies.
The remedial jurisdiction and competence of the various institutions and tribunals are
considered in this chapter. As noted, specific provisions on the remedial powers of human
rights bodies exist only for the courts. As a result, the various committees and commis-
sions often appear uncertain about the scope of their authority and they join human
rights courts in appearing divided over their primary purpose in hearing complaints.
Some members see dual aims: to provide redress and to induce future compliance.7
There may be concern with the competing interests of the victim, the victim’s representa-
tive (especially when it is a non-governmental organization with its own agenda), other
members of society, the respondent government and other governments, and the tribu-
nal’s own institutional legitimacy and functioning.
The European Court of Human Rights has expressly referred to the public order
of Europe in describing its role as being to provide advice for states on compliance
with their human rights obligations under the European Convention on Human Rights
(ECHR). The ECHR is held to have a ‘special character’ deriving from its purpose
in creating a system for the collective enforcement of human rights. The role of the
European Court is to interpret and apply the agreement ‘so as to make its safeguards
practical and effective’.8 The Convention must be read as a whole, and interpreted
in such a way as to promote internal consistency and harmony between its various
provisions.9 More broadly, the Court has stated that it ‘has never’ considered the provi-
sions of the Convention as the sole framework of reference for the interpretation of
the rights and freedoms enshrined therein; instead, it must also take into account any
relevant rules and principles of international law applicable in relations between the
Contracting Parties.10 Also, as a ‘living’ instrument, the Convention must be interpreted
in the light of present-day conditions, taking into account evolving norms of national
and international law. As discussed further below, the Inter-American and African insti-
tutions apply similar principles in hearing cases.
The views of the majority on the European Court differ, however, from those of
the judges of the Inter-American Court. The European judges express the view that the
Court’s primary mission is one of determining issues on public-policy grounds in
the common interest, rather than ensuring full redress for the victim applicants.11 In
the Varnava case, the Court claimed that it is not its role to function akin to a domestic
court deciding tort cases in apportioning fault and compensatory damages between civil
parties.12 It may be argued to the contrary that determining compensatory damages is
precisely one of the Court’s most significant roles in the European system. A tort is a legal
wrong and it is a general principle of law that the commission of a legal wrong, which
must be decided by the European Court, entails an obligation on the part of the wrong-
doer to redress the wrong adjudicated by the Court. An inherent part of the judicial

7
  See, e.g., Gerald L.  Neuman, ‘Bi-Level Remedies for Human Rights Violations’, (2014) 55
Harvard Int’l L. J. 323, 324 (‘Ordinarily, the goal of international human rights institutions is to induce
action at the national level for the remediation of past injuries and the prevention of future injuries’).
8
  European Court of Human Rights, Mamatkulov, App. No. 46827/99, ¶ 101.
9
  European Court of Human Rights, Demir and Baykara v. Turkey [GC] (Judgment of 12 November
2008), para. 66.
10
  Ibid, para. 67.
11
  European Court of Human Rights, Karner v. Austria (Judgment of 24 July 2003) 38 EHRR 24
(2004), para. 26.
12
  European Court of Human Rights, Case of Varnava and Others v. Turkey [GC] (18 September
2009), para. 226.
 The Functions and Competence of Human Rights Tribunals 193

function is to assess the magnitude of the wrong and the resulting harm to the injured party.
This is not part of the enforcement of a judgment—it is part of the judgment itself.
Even if an international monitoring body is clear that it has a mandate to consider remedies
and redress, the members may be divided over whether this means providing the full or integral
reparations indicated in the law of state responsibility, or whether it should simply provide
general guidelines to the state and leave the modalities and scope of reparations to internal
laws and mechanisms. Given that complaints are only admissible if all domestic remedies have
failed, it may not be warranted to assume that internal procedures will redress the violation
without some clear direction. Human rights bodies nonetheless recognize an institutional cost
in providing full redress, which can require deciding what is compensable harm, standards of
proof, offsets, payment schedule, currency, interest rate, beneficiaries, and succession in case
of death. For this reason, many bodies call for the state to provide an effective remedy, but give
few details.13 More victim-oriented views express concern about redressing the consequences
to the victim and preventing similar injury to others, thus often recommending systematic
changes, such as repeal of legislation inconsistent with human rights.

6.2  The United Nations System

None of the permanent United Nations treaty bodies or organs has explicit legal competence
to order compensation or other remedies. The Human Rights Committee, the Committee
on the Elimination of Racial Discrimination, and other bodies that accept individual com-
munications express their ‘views’ to the state concerned about whether a complaint filed
reveals a violation of a right protected by the treaty in question. Nonetheless these decisions
also increasingly call on the state involved to give restitution, pay compensation, or afford
other remedies. Many treaty bodies also have instituted a follow-up procedure and insist
that good faith compliance with treaty obligations requires that the state concerned provide
the remedies indicated.

6.2.1 United Nations organs and subsidiary bodies

Some of the UN’s special procedures accept communications or petitions. The former UN
Human Rights Commission created the Working Group on Disappearances in 1980 to
‘examine questions’ concerning enforced or involuntary disappearances. Its primary role is
‘as a channel of communication between families of the missing persons and the govern-
ments concerned, with a view to ensuring that sufficiently documented and clearly identi-
fied individual cases are investigated and the whereabouts of the missing persons clarified’.14
It works on individual cases, country reports, and the general phenomenon of disappear-
ances, including the question of impunity. It has emphasized the importance of habeas
corpus as ‘one of the most powerful legal tools for discovering the fate or whereabouts of
a disappeared person; its rapid implementation could help to prevent grave violations of
human rights from occurring and enhance the accountability of those responsible for disap-
pearances and arbitrary detention’.15

13
  See, e.g., Committee against Torture, K.H. v. Denmark Decision adopted by the Committee, 49th
Session, 29 Oct.-23 Nov. 2012, Comm. No. 464/2011, UN Doc. CAT/C/49/D/464/2011 (23 Nov.
2012). Gerald Neuman argues that this is appropriate, because the requirement is for the state to provide
an effective remedy, not the most effective remedy. Newman, supra n. 7, 333.
14
  Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/2002/79, para. 3.
15
  E/CN.4/1994/38, para. 45(a).
194 The Institutional Framework

The Working Group on Arbitrary Detention, which may investigate cases of arbi-
trary deprivation of liberty,16 accepts communications from detained individuals or their
families, as well as governments and inter-governmental and non-governmental organi-
zations. If the Working Group decides after investigation that the arbitrary nature of the
detention is established, it makes recommendations to the government concerned and
transmits these to the complainant shortly after sending them to the government. The
standard language of the recommendation is as follows:
Consequent upon the decision of the Working Group declaring the detention of . . . to be arbitrary,
the Working Group requests the government of . . . to take the necessary steps to remedy the situ-
ation in order to bring it into conformity with the provisions and principles incorporated in the
Universal Declaration of Human Rights and the International Covenant on Civil and Political
Rights.17
Giving greater precision to the generality of this recommendation, the Working
Group has cited the right to a remedy contained in the Universal Declaration of Human
Rights and the guarantee contained in the Covenant on Civil and Political Rights that
anyone deprived of liberty is entitled to test the lawfulness of the detention before a
court. The Working Group has identified the latter remedy as habeas corpus, calling
it ‘the best remedy’ against unlawful or unjust imprisonment.18 In the same report the
Working Group called for preparation of an international document on this remedy,
‘particularly regarding the non-derogable nature of habeas corpus as an inherent human
right’.19 The Working Group also has recommended to all states that they legislate the
remedy of habeas corpus as an individual right.20
The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions accepts
communications about violations of the right to life.21 The primary function of the
Special Rapporteur is to ascertain whether the state has complied with its obligations
under international law to prevent violations of the right to life, or, if the death has
already occurred, to investigate the cause and circumstances, identify the perpetrators,
and impose appropriate sanctions. The Rapporteur considers the rights of victims, based
on the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, in particular Principle 11, which calls on the state to redress harm caused by
official conduct.22 States are expected to provide indemnification ‘on a systematic basis’
in compliance with the norms and principles contained in the pertinent international
instruments.23
In a 1994 report24 to the former UN Human Rights Commission, the Special
Rapporteur referred to the international obligation to provide compensation to victims
of violations of the right to life, together with legal duties
to carry out exhaustive and impartial investigations into allegations of violations of the right to life,
to identify, bring to justice and punish their perpetrators, to grant compensation to the victims or
their families, and to take effective measures to avoid future recurrence of such violations. The rec-
ognition of the duty to compensate victims of human rights violations, and the actual granting of
compensation to them, presupposes the recognition by the Government of its obligation to ensure

16
  The Working Group on Arbitrary Detention was established by the Commission on Human
Rights in its Res. 1991/42 and entrusted with the investigation of instances of alleged arbitrary depri-
vation of liberty. The mandate of the Group was clarified and extended by the Commission in its Res.
1997/50 to cover the issue of administrative custody of asylum-seekers and immigrants.
17
  See e.g. Decision 43/1993 (People’s Republic of China) in E/CN.4/1995/31/Add.1, 3.
18
  E/CN.4/1995/31, para. 45. 19
 Ibid. 20
  E/CN.4/1996/40, para. 124(4).
21
 E/CN.4/1993/46. 22
 Ibid, para. 68.    23 E/CN.4/1993/46.
24
  E/CN.4/1994/7, para. 11.
 The Functions and Competence of Human Rights Tribunals 195
effective protection against human rights abuses on the basis of the respect for the fundamental
rights and freedoms of every person.25
The Special Rapporteur consistently requests information from a government to
clarify allegations regarding an execution, including ‘the nature and amount of any com-
pensation made to the family of the victim’26 and has complained repeatedly that states
fail to provide this information.27
In 2003, the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment addressed a revised series of recommendations to UN mem-
ber states which specify that all detained persons should have the ability to challenge the
lawfulness of detention, for example through habeas corpus or amparo. In addition, the
Rapporteur recommended that an inquiry always be undertaken when there is a com-
plaint of torture. If the complaint is well founded, it should result in compensation to
the victim or relatives. Anyone suspected of committing torture or severe maltreatment
should be tried and, if found guilty, punished.28 Paragraph (l) of the recommendations
details the various forms of redress:
Legislation should be enacted to ensure that the victim of an act of torture obtains redress and fair and
adequate compensation, including the means for the fullest rehabilitation possible. Adequate, effective
and prompt reparation proportionate to the gravity of the violation and the physical and mental harm
suffered should include the following elements: restitution, compensation, rehabilitation (including
medical and psychological care as well as legal and social services), and satisfaction and guarantees of
non-repetition. Such legislation should also provide that a victim who has suffered violence or trauma
should benefit from special consideration and care to avoid his or her re-traumatization in the course
of legal and administrative procedures designed to provide justice and reparation.29
Following adoption of the UN Draft Guidelines on reparations and the separate
but related principles on impunity, the Human Rights Council by Resolution 18/7 of
29 September 2011, created a new mandate for a Special Rapporteur on the promo-
tion of truth, justice, reparation and guarantees of non-recurrence to deal with situa-
tions in which there have been gross violations of human rights and serious violations
of international humanitarian law. The rapporteur looks at the ‘specific context of each
situation’ with a view to preventing the recurrence, using a comprehensive approach
incorporating a full range of judicial and non-judicial measures. The primary role is
to provide technical assistance or advisory services, gather relevant information on
national situations, normative frameworks, good practices and lessons learned. The
rapporteur can make recommendations concerning judicial and non-judicial meas-
ures when designing and implementing strategies and policies. Country visits are fore-
seen and the rapporteur is to integrate a victim-centred approach.
Taken together, the work of the UN organs and subsidiary bodies has resulted in
recommendations for redress in the nature of: (1) restitution, including rehabilitation
and restoration of honour and dignity; (2) compensation; (3) satisfaction, including
investigation and revelation of the truth; and (4) guarantees of non-repetition, such as
prosecution and punishment of offenders. These remedies in international human rights
law have been strongly influenced by the law of state responsibility and, as a general rule,
follow its emphasis on compensatory justice.

25
 Ibid. 26
  E/CN.4/1993/46, para. 79(g).
27
  See ibid, para. 688 and E/CN.4/1994/7, para. 711 (‘The Special Rapporteur notes with concern
that, with the exception of Nepal, no Government provided him with information about any such
compensation provided to victims or their dependents’).
28
 E/CN.4/2003/68, 12. 29
 Ibid.
196 The Institutional Framework

6.2.2 United Nations treaty bodies

United Nations treaty bodies have addressed remedies in their observations on periodic
state reports, in general comments, and in their views on communications. The chair-
persons of the treaty bodies utilize guidelines for reporting that call on states to provide
information on remedies as required by the various treaties. States should describe the
effective remedies that are available to any individual through the competent national
tribunals for acts violating the rights guaranteed by the constitution or by law. In addi-
tion, states should indicate what procedural guarantees exist to ensure that the rights are
respected and enforced by an independent tribunal in a fair hearing.
In its consideration of state reports, the Human Rights Committee monitoring compli-
ance with the ICCPR has commented on the right to remedies, reminding states, for example
‘that the family members of missing persons have the right to be informed about the fate of
their relatives, and that failure to investigate the cause and circumstances of death, as well as
to provide information relating to the burial sites of missing persons increases the suffering
inflicted [on] family members and may amount to a violation of Article 7 of the Covenant’.30
Considering Guatemala’s National Reparations Program, the Committee emphasized the
importance of ‘comprehensive care with cultural and linguistic relevance, with a focus on
psychosocial support, restoration of dignity and recovery of historical memory’.31
In the aftermath of widespread violations occurring in the context of an internal armed
conflict, the Human Rights Committee has provided detailed guidance for states. It has
criticized de facto amnesty and impunity, noting in its observations on Colombia’s report32
that of 280,420 victims registered by 2009 under the Reparations Act No. 975 of 2005,
judicial reparation for victims had been awarded in only one case33 and moreover the Act
did not explicitly recognize the state’s duty to guarantee rights. It expressed concern that
reparation was tending to take the form of humanitarian assistance and had not provided
for full reparation. The Committee advised that ‘the State party should ensure that legisla-
tion is adopted and should implement a policy that fully guarantees the right to an effective
remedy and to full reparation’. Implementation of the law must take into account the UN
Basic Principles and the five elements of the right to a remedy: restitution;34 compensation;
rehabilitation; satisfaction; and guarantees of non-repetition. Resources should be specifi-
cally assigned to provide psychological and social care and rehabilitation. The Committee
also recommended that particular attention be paid to gender issues and to victims who are
children, Afro-Colombians or indigenous people. Other observations called for investiga-
tion, prosecution, and punishment of perpetrators and recommended allocating sufficient
resources to implement the plan to search for disappeared persons, in cooperation with
families and civil society organizations. Finally, the Committee suggested changes in the
law to criminalize racial discrimination and to hold prior consultations with communities
to seek their free prior and informed consent on programs potentially affecting them.

30
  CCPR Concluding Observations on Bosnia and Herzegovina (2006), CCPR/C/BIH/CO/1,
para. 14. See also Human Rights Committee, General Comment 20, Article 7, 44th Session 1992,
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, UN Doc. HRI/GEN/1/Rev.1 at 30 (1994).
31
  Guatemala, CCPR/C/GTM/CO/3 (19 April 2012), para. 7. The Committee also recommended
legislative and policy reform, as well as education campaigns (paras. 8–10, enhanced interpretation
services and training programs for legal officials (para. 26), and for the government to ‘carry out prior
and informed consultations with indigenous peoples for all decisions relating to projects that affect their
rights’ (para. 27).
32
  Colombia, CCPR/C/COL/CO.6 (4 August 2010). 33
  Ibid, para. 10.
34
  Ibid, paras. 23–25 (calling for restitution of the lands of displaced persons, indigenous peoples
and Afro-Colombians).
 The Functions and Competence of Human Rights Tribunals 197

The Convention against Torture, Article 14, provides a ‘right to fair and adequate
compensation’ and rehabilitation, which the Committee against Torture (CAT) has
referred to in observations on state reports. In its conclusions and recommendations to
the United States in 2006, the CAT expressed concern that some victims of abuse have
faced difficulties obtaining redress and adequate compensation. The CAT urged the US
to ensure that ‘mechanisms to obtain full redress, compensation, and rehabilitation are
accessible to all victims of . . . abuse . . . perpetrated by its officials’.35
The treaty bodies have almost all issued general comments on the issue of remedies.
In 2012, the CAT adopted a general comment on the content and scope of state obliga-
tions to provide redress pursuant to Article 14.36 The Committee affirmed that Article
14 applies to all victims of torture and acts of cruel, inhuman or degrading treatment
or punishment without discrimination of any kind. It interpreted the term ‘redress’
to encompass the concepts of ‘effective remedy’ and ‘reparation’, the latter deemed
to entail restitution, compensation, rehabilitation, satisfaction and guarantees of
non-repetition.37 In terms of process, the Committee emphasized the importance of
victim participation, given that the ultimate objective of redress is the restoration of the
dignity of the victim. To satisfy their procedural obligations, states parties are to enact
legislation and establish complaints mechanisms, investigative bodies and institutions,
including independent judicial bodies, capable of determining the right to and awarding
redress to a victim of torture and ill-treatment, and ensure that such mechanisms and
bodies are effective and accessible. At the substantive level, states parties shall ensure that
victims of torture or ill-treatment obtain full and effective redress and reparation, includ-
ing compensation and the means for as full rehabilitation as possible.
In terms of individual petitions submitted against states that are party to the ICCPR’s
First Optional Protocol, decisions of the Committee finding that a state party has vio-
lated the Covenant are expressed in ‘views’ transmitted to the state and published in the
Committee’s annual reports. From the first views adopted in 1979 finding a violation,38
the Committee has consistently stated that such a finding places an obligation on the
state party to provide an effective remedy to the victim. In 1981, the Committee made
clear that this obligation flows from Article 2(3) of the Covenant. Over time, there has
also been an evolution towards more specificity in the Committee’s views about the
appropriate remedy in each case. In 2002, for the first time, the Committee indicated
that the appropriate compensation was equivalent to restitution: a sum not less than the
fine wrongfully imposed on the applicant for his free exercise of expression together with
his legal costs.39

35
  UN Comm. against Torture, Consideration of Reports Submitted by States Parties under Article
19 of the Convention: Conclusions and Recommendations of the Committee against Torture: United
States of America, UN Doc. CAT/C/USA/CO/2 (25 July 2006), para. 28.
36
  Committee against Torture, ‘Implementation of Article 14 by States Parties, General comment
No. 3, (13 December 2012) CAT/CG/3.
37
  The Committee ‘recognized’ these elements of full redress ‘under international law and practice’
as outlined in 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, GA Res. 60/147.
38
  Comm. No. 5/1977 (Moriana Hernandez Valentini de Bazzano et al. v. Uruguay), I  Selected
Decisions of the Human Rights Committee under the Optional Protocol 40, para. 10.
39
  Comm. No. 790/1997 (Vladimir Petrovich Laptsevich v. Belarus), UN Doc. A/55/40, vol. II, 178.
See also Comm. No. 919/2000 (Müller and Engelhard v. Namibia), Views of 26 Mar. 2002, UN Doc.
A/57/40, vol. II, 243 (where judicial costs were imposed, the order should not be enforced or if already
enforced, the state should refund the money).
198 The Institutional Framework

In the jurisprudence of the Human Rights Committee the indicated remedies have
included one or more of the following:
(a) public investigation to establish the facts40
(b) bringing to justice the perpetrators41
(c) compensation42
(d) ensuring non-repetition of the violation43
(e) amending the law44
(f ) providing restitution of liberty,45 employment,46 property,47 and human remains48

40
  Comm. No. 30/1978 (Irene Bleier Lewenhoff and Rosa Valino de Bleier v. Uruguay) GAOR 37th
Session Supp. 40, 130, UN Doc. A/37/40 (1982) (deprivation of the right to life); Comm. No. 84/1981
(Guillermo Ignacio Dermit Barbato and Hugo Harold Dermit Barbato v. Uruguay) GAOR, 38th Session
Supp. 40, 124, UN Doc. A/38/40 (1983) (deprivation of the right to life); Comm. No. 107/1981 (Elena
Quinteros Almeida and Maria del Carmen Almeida de Quinteros v. Uruguay) GAOR Hum. Rts. Comm.
38th Session Supp. 40, 216, UN Doc. A/38/40 (1983) (disappearance); Comm. No. 146/1983 and
148–154/1983 (John Khemraadi Baboeram et al. v. Suriname) UN GAOR, 40th Session Supp. 40, 187,
UN Doc. A/40/40 (1985) (deprivation of the right to life); Comm. No. 161/1983 (Joaquin David Herrera
Rubio v. Columbia) GAOR, Hum. Rts. Comm., 43rd Session Supp. 40, 190, UN Doc. A/43/40 (1988)
(disappearance and death); Comm. No. 194/1985 (Jean Miango Muigo v. Zaire) GAOR, Hum. Rts.
Comm., 43rd Session Supp. 40, 218, UN Doc. A/43/40 (1988) (right to life); Comm. No. 181/1984
(A. and H. Sanjuan Arevalo v. Columbia) GAOR, Hum. Rts. Comm., 45th Session Supp. 40, 31 (vol.
1), UN Doc. A/45/40 (1990) (disappearances); Comm. No. 25/1978 (Carmen Amendola and Graciela
Baritussio v. Uruguay) GAOR, Hum. Rts. Comm., 37th Session Supp. 40, 187, UN Doc. A/37/40 (1982)
(torture); Comm. No. 124/1982 (Tshitenge Muteba v. Zaire) GAOR, Hum. Rts. Comm., 39th Session
Supp. 40, 182, UN Doc. A/39/40 (1984) (torture); Comm. No. 176/1984 (Walter Lafuente Penarrieta
et al. v. Bolivia) GAOR, Hum. Rts. Comm., 43rd Session Supp. 40, 199, UN Doc. A/43/40 (1988).
41
 Cases Bleier; Barbato; Quinteros; Baboeram; Miango; and Muteba, all supra n. 40; Case 1186/2003
(Titiahonjo v. Cameroon) and Case 1436/2005 (Sathasivam v. Sri Lanka), GAOR, Hum. Rts. Comm.,
63rd Session Supp. 40, UN Doc. A/63/40 (2008) (death in detention).
42
 Cases Amendola and Baritoussio; Bleier; Barbato; Muteba; Quinteros; Baboeram; Miango; and
Penarrieta, all supra n. 40; Case 45/1979 (Suarez de Guerrero v. Colombia) GAOR, Hum. Rts. Comm.,
37th Session Supp. 40, 137, UN Doc. A/37/40 (1982) (killing by deliberate police action); Case No.
110/1981 (Antonio Viana Acosta v. Uruguay) GAOR, Hum. Rts. Comm., 39th Session Supp. 40, 169,
UN Doc. A/39/40 (1984) (torture); Uteev v. Uzbekistan, Case 1150/2003, GAOR, Hum. Rts. Comm.,
63rd Session Supp. 40, UN Doc. A/63/40 (2008); Titiahonjo v. Cameroon, supra n. 41.
43
 Cases Bleier; Barbato; Quinteros; Baboeram; Herrera; Muteba; Penarrieta, all supra n. 40; Case
No. 80/1980 (Elena Beatriz Vasilskis v. Uruguay) GAOR, Hum. Rts. Comm., 38th Session Supp. 40,
173, UN Doc. A/38/40 (1983) (torture); Case No. 88/1981 (Gustavo Raul Larrosa Bequio v. Uruguay)
GAOR, Hum. Rts. Comm., 38th Session Supp. 40, 173, UN Doc. A/38/40 (1983) (torture).
44
 Cases Bleier; Barbato; Quinteros; Baboeram; Herrera, Muteba; Penarrieta, all supra n. 40; Vasilskis;
Bequio, both supra n. 43; Comm. No. 965/2000 (Karakurt v. Austria) (modify the applicable law to
eliminate discrimination); UN Doc. CCPR/C/74/D/965/2000, Views adopted 4 Apr. 2000.
45
  Comm. No. 577/1994 (Polay Campos v. Peru), UN Doc. A/53/40, vol. II, 36, para. 10 (denial of
a fair trial requires release of the applicant); Comm. No. 788/1997 (Cagas et al. v. The Philippines), UN
Doc. A/57/40, vol. I, 116 (where authors had been detained for more than nine years without trial,
either try them promptly or release them).
46
  Comm. 641/1995 (Gedumbe v. Congo), UN Doc. A/57/40, vol. II, 24, para. 6.2 (the author is
entitled to reinstatement to public service and to his post, with all the consequences that this implies,
or, if necessary to a similar post, with arrears of salary); an identical remedy was awarded in Comm.
No. 906/2000 (Chira Vargas v. Peru), Views of 22 July 2002, ibid, 228. The Committee also called for
measures to ensure that similar violations do not recur in the future.
47
  Comm. 747/1997 (Des Fours Walderode v. the Czech Republic), Views of 30 Oct. 2001, UN Doc.
A/57/40, vol. II, 88, para. 95; Comm. No. 774/1997 (Brok v. Czech Republic), Views of 31 Oct. 2001,
UN Doc. A/57/40, vol. II, 110, para. 9 (restitution required for discrimination in property restitution).
48
  Zarzi (on behalf of Aouabdia and others) v. Algeria (Merits), Communication No. 1780/2008, UN
Doc. CCPR/C/101/D/1780/2008.
 The Functions and Competence of Human Rights Tribunals 199

(g) rehabilitation, including medical care and treatment49

(h) permitting the victim to leave the country50 and
(i) enjoining an imminent violation.51
In terms of satisfaction, the Committee once urged a state party to provide a public
apology, in a case involving racial discrimination. Like other human rights bodies, the
Committee has referred to its Views as a measure of satisfaction, but its practice has been
to indicate this only if it is not specifying other measures of redress.
The Human Rights Committee has developed a practice of requesting the state party
involved in a proceeding to publish the Committee’s Views finding a violation.52 In
addition, the Committee asks the state to prevent future violations of a similar nature.
Guarantees of non-repetition are an important aspect of the Committee’s approach to
remedies. It frequently calls upon states parties to take steps to ensure that similar viola-
tions do not occur in the future. It also has stressed repeatedly that states parties are under
an obligation to take immediate steps to ensure strict observance of the provisions of the
Covenant.53 When more detail is provided, the decisions are not consistent, because the
Committee sometimes indicates the need for ‘adequate’ reparations and at other times
calls for ‘full’ redress. The lack of consistency is likely the result of different opinions
among Committee members about remedies.
In a series of prisoner cases, the Committee has found that the failure to provide legal
aid interferes with the right of access to justice in violation of Article 14(3)(d) in conjunc-
tion with Article 2(3).54 In these cases prisoners alleged violations that included denial of
the right to appeal; cruel, inhuman, and degrading treatment; and procedural delay. The
Committee insisted that the applicants be afforded an effective remedy and suggested
a range of appropriate remedies, including release,55 ‘further measures of clemency’,56

49
  Comm. No. 63/1979 (Raul Sendic Antonaccio v. Uruguay) (cruel, inhuman or degrading treat-
ment or punishment), Views of 28 Oct. 1981, UN Doc. A/37/40, Annex VIII, 114; Comm. 684/1996
(Sahadath v. Trinidad and Tobago), Views of 2 Apr. 2002, UN Doc. A/57/40, vol. II, 66, para. 9 (the
state party is under an obligation to provide appropriate medical and psychiatric care and improve the
conditions of detention).
50
  Comm. No. 52/1979 (Sergio Ruben Lopez Burgos v. Uruguay), I Selected Decisions 88, para. 14
(‘the State party is under an obligation, pursuant to Art. 2(3) of the Covenant, to provide effective rem-
edies to Lopez Burgos, including immediate release, permission to leave Uruguay and compensation
for the violations which he has suffered, and to take steps to ensure that similar violations do not occur
in the future’.).
51
  Comm. No. 930/2000 (Hendrick Winata et al. v. Australia), UN Doc. A/56/40, 199, para. 9
(wrongful threatened deportation of foreign parents of a naturalized child requires ‘refraining from
removing the authors from Australia before they have had an opportunity to have their application for
parent visas examined with due consideration given to the protection required by Barry Winata’s status
as a minor’.).
52
  Kim v. the Republic of Korea, CCPR/C/64/D/574/1994. CEDAW’s committee also consistently
recommends publication of its decisions.
53
  Comm. No. 63/1979, supra n. 49. See, e.g., J.D. Herrera Rubio case, CCPR, views of 2 Nov. 1987,
ICCPR, Selected Decisions of the Human Rights Committee under the Optional Protocol, ii, 1990,
194–5; Case No. 899/1999 (Frances et al. v. Trinidad and Tobago), Views of 25 July 2002, UN Doc.
A/57/40, vol. II, 211, para. 7.
54
  Comm. No. 532/1993 (Thomas v. Jamaica), Views of 3 Nov. 1997, II Rep. of the Human Rights
Committee, GAOR, 53rd Session Supp. 40, UN Doc. A/53/40, 1 (1998) [hereinafter, II Reports].
55
  Ibid, 5, para. 7.
56
  Comm. No. 554/1993 (R. LaVenda v. Trinidad and Tobago), Views of 29 Oct. 1997, II Reports,
8, 13; Comm. No. 635/1995 (R. Morrison v. Jamaica), Views of 27 July 1998, II Reports, 113, 125;
Comm. No. 672/1995 (C. Smart v. Trinidad and Tobago), Views of 29 July 1998, II Reports, 142, 149.
200 The Institutional Framework

payment of compensation,57 improved conditions of confinement,58 release from

prison,59 medical treatment,60 and for those subject to the death penalty, commutation
of the sentence.61 In cases of mistreatment it has urged the state to carry out an official
investigation into the allegations and where appropriate identify the perpetrators and
punish them.62
As these cases indicate, the Human Rights Committee often appropriately combines
a recommendation for compensation with other remedies, such as early release for vic-
tims of torture,63 review of management systems or legislation,64 and retrial of convicted
persons.65 On some occasions going back to 1981, the Committee has gone further and
ordered that the person be freed, if it cannot presume that due process will be afforded
in a new trial, especially in criminal prosecutions. It has suggested this remedy when a
person has already served most or all of the sentence handed down in the trial where
procedural safeguards were not respected.
In July 2011, the Human Rights Committee recognized the need to establish criteria
that would standardize and improve its policy on recommending measures of redress at
the conclusion of its consideration of individual communications. The HRC’s rappor-
teur on the issue presented a progress report in 2012 and a fuller report in April 2013.
The 2013 study provided a systematic overview of the decisions taken by the Committee
between 1977 and 2012. After discussion and debate, a revised report was presented in
October 2013.
The rapporteur relied on the norms on state responsibility to note that ‘[w]‌hen a treaty
body considers an individual communication and determines that a State bears responsibil-
ity for a violation of one or more of the rights recognized in an international human rights
convention, the State in question has an immediate obligation to offer the victims adequate
reparation based on the principle of good faith in giving effect to international obligations

57
  Comm. No. 564/1993 (J. Leslie v. Jamaica), Views of 31 July 1998, II Reports at 21, 29; Comm.
No. 585/1994 (T. Jones v. Jamaica), Views of 6 Apr. 1998, II Reports at 45, 54; Comm. No. 591/1994
(I. Chung v. Jamaica), Views of 9 Apr. 1998, II Reports at 55, 61; Comm. No. 615/1995 (B. Young
v. Jamaica), Views of 4 Nov. 1997, II Reports at 69, 75; Comm. No. 617/1995 (A. Finn v. Jamaica),
Views of 31 July 1998, II Reports at 78, 86; Comm. No. 619/1995 (Deidrick v. Jamaica), Views of 9
Apr. 1998, II Reports at 87, 93; R. Morrison, supra n. 56 ; C. Smart, supra n. 56.
58
  Comm. No. 569/1993 (P. Matthews v. Trinidad and Tobago), Views of 31 Mar. 1998, II Reports,
30, 34.
59
  T. Jones v.  Jamaica, supra n.  57. See also Comm. 623-624-626-627/1995 (V.P. Domukovsky,
Z. Tsiklauri, P. Gelbakhiani and I. Dokvadze v. Georgia), Views of 6 Apr. 1998, II Reports at 95, 112;
Comm. No. 676/1996 (A.S. Yasseen and N. Thomas v. Guyana), Views of 30 Mar. 1998, II Reports at
151, 162; Comm. No. 577/1994 (R. Espinoza de Polay v. Peru), Views of 6 Nov. 1997, II Reports at
36, 43. In the Peruvian case, the Committee found that the victim had been sentenced on the basis of
a trial that failed to provide the basic guarantees of a fair trial. It considered that he should be released
unless Peruvian law provided the possibility of a new trial that conformed to the requirements of the
Covenant. In its suggested remedy, the Committee’s decision is similar to that of the Inter-American
Court of Human Rights in the case of Inter-American Court of Human Rights, Loayza Tamayo v. Peru
(Merits) (1997) Series C No. 34.
60
  Comm. No. 609/1995 (Williams v. Jamaica), Views of 4 Nov. 1997, II Reports, 63, 68.
61
  Comm. No. 704/1996 (S. Shaw v. Jamaica), Views of 2 Apr. 1998, II Reports at 164, 171; Comm.
No. 705/1996 (D. Taylor v. Jamaica), Views of 2 Apr. 1998, II Reports, 174, 180; Comm. No. 732/1997
(B. Whyte v. Jamaica), Views of 27 July 1998, II Reports, 195, 202; Comm. No. 733/1997 (A. Perkins
v. Jamaica), Views of 19 Mar. 1998, II Reports, 205, 211.
62
  Comm. No. 749/1997 (D. McTaggart v. Jamaica), Views of 31 Mar. 1998, II Reports, 221, 228.
63
  Cases 1209/2003, 1231/2003 and 1241/2004 (Sarifova et al. v. Tajikistan), A/63/40, supra n. 41.
64
  Case 1306/2004 (Haraldsson and Sveinsson v. Iceland); Cases 1448/2006 (Kohoutek), 1463/2006
(Gratzinger), 1533/2006 (Ondracka), 1484/2006 (Lnenicka), 1485/2006 (Vlcek), 1488/2006 (Susser) AQ1: Is any
and 1497/2006 (Preiss), all against the Czech Republic, II Reports, supra n. 54. text missing
65
  Case no. 1310/2004 (Babkin v. Russian Federation), II Reports. here
 The Functions and Competence of Human Rights Tribunals 201

and by virtue of the general obligations to respect and guarantee the rights set forth in the
corresponding international instrument’.66 The Committee’s role is to be precise on the
rights that have been violated and the appropriate measures of redress in order to make
reparation to the victim (and, in some cases, to the victim’s family) but also to benefit society
through measures designed to ensure non-repetition. For this to happen, greater consist-
ency in decisions would be advisable.
The report recommended that when the Committee has found violations of Covenant
rights, it should set out one or more measures designed to make full reparations to the victims
(restitution, compensation, rehabilitation and measures of satisfaction) and others aimed at
preventing a reoccurrence of such violations in the future (guarantees of non-repetition). It
should also attempt to have greater consistency with respect to the same types of violations
and indicate the legal foundations for redress as contained in ICCPR Article 2. The report
suggested, however, that the Committee continue its present practice of not, as a general
rule, specifying sums of money for material and moral (or non-material) harm.
For each communication, the Committee should deliberate on the advisability of
providing for restitution with a view to restoring rights that have been violated or indi-
cating measures of rehabilitation. In some cases it may be appropriate to include in the
Committee’s Views a statement that the Committee’s decision in and of itself constitutes
a form of redress.
The report found no reason to change the Committee’s practice of recommending
the release of an offender and/or review of a case as a measure of satisfaction and of decid-
ing on a case-by-case basis whether to focus on having the person in question released or
whether to request that the case be reviewed, or give the state party the option of retrying
the case, or releasing the person. Public apology is seen as a very important measure of
satisfaction in cases involving certain types of especially serious violations (discrimina-
tion, torture, extrajudicial killings and enforced disappearances). The Committee should
take this measure into special consideration when specifying the redress to be provided
in a given case. As for other measures of satisfaction, the Committee should consider the
possibility of including, as appropriate, recommendations for symbolic measures such as
constructing a monument, putting up a commemorative plaque or changing the name
of a street or other public place, in cases involving grave or systematic violations.
The Committee could be more specific in identifying and recommending measures in
order to optimize the redress afforded in each case. When laws or regulations in the state
party violate Covenant obligations, the Committee should direct changes in the law or reg-
ulation as a measure of redress, specifying exactly what should be amended; if the violation
stems from the absence of legal provisions, then the measures of redress should include the
adoption of the necessary laws or regulations.67 Where appropriate, the Committee could
recommend training for law enforcement officers, members of the judiciary or medical
or administrative personnel, as appropriate, as a measure designed to avert the repetition
of violations such as those that gave rise to the communication under consideration. It
remains to be seen if the majority of the Committee will agree to change its prior practices.

66
  Fabian Salvioli, Rapporteur, ‘The Specification of Measures of Redress within the scope of individual
communications considered by the Human Rights Committee, CCPR/C/109/R.3 (2013)(unpublished).
67
  The Committee’s jurisprudence reveals numerous cases where it has been stated that changes in
national law are necessary. The Committee has recommended that a State party ‘ensure that the right to
life is duly protected by amending the law’; ‘adjust its laws in order to give effect to the right set forth in
article 14 (5) of the Covenant’; ‘adjust its laws in order to give effect to the rights set forth in article 9 (4)
of the Covenant’; ‘remedy the violation of article 19 of the Covenant by an appropriate amendment to
the law’; ‘make changes to the law’ in order to restore a person’s right to vote and ‘make such changes to
the law . . . as are necessary to avoid similar violations in the future’.
202 The Institutional Framework

For its part, the CAT Committee has invoked the UN Guidelines on Reparations to indi-
cate a wide range of measures that must be taken in cases of torture. The CAT Committee
recommended to the government of Zambia that it establish rehabilitation centres and
called on the government of Indonesia to ‘take immediate steps to address the urgent need
for rehabilitation of the large number of victims of torture and ill treatment in the country’.68
In the case of O.R., M.M. and M.S. v. Argentina, the Committee found the cases inadmis-
sible because they related to events prior to the entry into force of the Convention for the
state. The Committee nonetheless expressed its view that the national ‘Full Stop Law’ and
‘Law of Due Obedience’ were ‘incompatible with the spirit and purpose’ of the Torture
Convention.69 The state was also asked to adopt ‘appropriate measures’ of reparation.
CEDAW’s optional petition procedure is relatively recent, but in Vertido v. Philippines,
concerning judicial discrimination in a rape case, the CEDAW committee recom-
mended appropriate compensation commensurate with the gravity of the violations,
and for the state to take specific measures to review its legislation and conduct training
for judges, lawyers and law enforcement officers. In fact, CEDAW often recommends
the adoption and implementation of training programs (usually for law enforcement
officers, judges, prosecutors and lawyers).70 It also consistently recommends publication
of its recommendations.
Given the type of dignitary harm resulting from discrimination, which often does not
involve material losses, both the CEDAW Committee and the Committee on the Elimination
of Racial Discrimination have, on occasion, emphasized compensation for moral injury or
psychological harm. The CERD called on the Netherlands to compensate for moral dam-
ages after it found that state officials had failed to respond adequately to racial incidents
directed at the applicant and that the police and judicial proceedings did not afford the victim
effective protection and remedies as required by Article 6 of the Convention.71 Both CERD
and CEDAW have also recommended investigations into violations and determination of
responsibility for violent acts, as well as improvements in victims’ effective access to justice,
and the adoption and implementation of public policies of prevention.
In some instances, CERD and CEDAW have called for the re-examination, adoption
or amendment of national legislation, in some instances specifying the particular elements
that the Committee wishes to be taken into account. In its Views on individual communica-
tions, the Committee on the Rights of Persons with Disabilities also identifies specific meas-
ures of redress for victims, as well as general measures designed to ensure non-repetition.
Among the UN treaty bodies, the CERD Committee stands out for its varied
and specific recommendations to redress violations of indigenous rights.72 In recent

68
 CAT/C/SSVII/Concl., 23 Nov. 2001 (Zambia); CAT/C/XXVII/Concl. 2, 22 Nov. 2001
(Indonesia).
69
  Comms. 1/1988, 2/1988 and 3/1988, decision 23 Dec. 1989, U.N. Report of the Committee
against Torture, GAOR 45th Session 1990, 111–12.
70
  In contrast, the Human Rights Committee generally does not refer to the provision of train-
ing to law enforcement officers or the judiciary as a non-pecuniary guarantee of non-repetition. In
L.M.R. v. Argentina, for example, the Committee called for compensation and the prevention of similar
violations in the future, even though it was clear that medical and court personnel had not been suf-
ficiently trained about which abortions are legally permitted in that country.
71
  Comm. No. 4/1991 (L.K. v. The Netherlands), Decision of 16 Mar. 1993, UN Doc. CERD/C/
42/D/4/1993.
72
 See, Fergus MacKay (ed.) Indigenous Peoples and United Nations Human Rights
Bodies:  A  Compilation of UN Treaty Body Jurisprudence, The Recommendations of The Human
Rights Council and Its Special Procedures, and the Advice of the Expert Mechanism on the Rights
of Indigenous Peoples (2011–2012), available at http://www.forestpeoples.org/sites/fpp/files/
publication/2013/01/cos-2011-12.pdf.
 The Functions and Competence of Human Rights Tribunals 203

observations on Bolivia, for example, the Committee recommended specific legisla-

tive reforms, education programs to eradicate discrimination, as well as swift investiga-
tion and prosecution of various ‘acts of racist violence’ against members of indigenous
communities.73 The CERD Committee urged Rwanda to complete numerous actions
on behalf of the Batwa people, whose territory had been ‘expropriated without prior
consultation’.74 It called on the state to ‘take all necessary steps, in consultation with and
with the agreement of the Batwa, to offer them adequate land . . . so that they can retain
their traditional lifestyle and engage in income-generating activities’.75 Among other
measures, the Committee requested Rwanda to ensure that the community had access
to health care, education and housing.76
UN treaty bodies generally agree that they have the authority to indicate measures
of satisfaction, which they usually view as including measures to ensure non-repetition.

6.2.3   UNESCO
The Executive Board of the United Nations Educational, Scientific and Cultural
Organization created a complaint procedure in 1978 to permit human rights advo-
cates to submit individual cases and general questions of human rights violations to
UNESCO.77 A communication may originate ‘from a person or group of persons who,
it can be reasonably presumed, are victims of alleged violations’ or ‘from any person,
group of persons or non-governmental organization having reliable knowledge of these
violations’. The issues must be within the educational, scientific and cultural mandate
of UNESCO.
Upon receipt of a communication, the organization sends a form that includes
a questionnaire about the object or goal of the complaint. The communications are
transmitted to the government, then brought to the Committee on Conventions and
Recommendations during its semi-annual meetings. The Committee gathers informa-
tion and attempts to achieve a friendly settlement, sometimes with the Director-General,
who has a specific role in helping to reach solutions to particular human rights problems.
The preamble to the Executive Decision creating the procedure refers to ‘moral consid-
erations’ and ‘international cooperation’ and explicitly states that ‘UNESCO should not
play the role of an international judicial body’. Thus, the Committee works to settle mat-
ters but does reach some decisions on the merits and recommends measures to redress
the situation. It does not award compensation, but often achieves measures of restitution
or restoration of the right that had been infringed.
Once the Committee deems a communication to be admissible, it may request fur-
ther information from the government concerned and/or the author of the communica-
tion or recommend some other action. It can, for example, request the Executive Board
to invite the Director-General to address an appeal to a government for clemency or
the release of a detainee. The Committee prepares confidential reports to the Executive
Board containing information about the communications that it has examined as well

73
  Bolivia (Plurinational State of ), CERD/C/BOL/CO/17-20, 8 April 2011, paras. 12–17.
74
  Rwanda, CERD/C/RWA/CO/13-17, 19 April 2011, para. 17. 75
 Ibid.
76
  Ibid, para. 16.
77
  Decision 104 EX/3.3 of the Executive Board of UNESCO, reprinted at http://www.unesco.
org/general/eng/legal/hrights/text.htm. See Stephen Marks, ‘The Complaint Procedure of the
United Nations Educational, Scientific and Cultural Organization, in Hurst Hannum (ed.) Guide to
International Human Rights Practice (4th edn, 2004), 107.
204 The Institutional Framework

as recommendations. The Executive Board examines them in closed meetings and may
endorse the Committee’s views.
The procedure laid down in 104 EX/Decision 3.3 of the Executive Board of UNESCO
has specific characteristics in comparison with similar procedures in other organizations
of the United Nations system. At the 185th session of the Executive Board, the members
of the Committee stressed that Procedure 104 was unique and at the same time comple-
mentary to other mechanisms of the United Nations system responsible for protecting
human rights. In accordance with 104 EX/Decision 3.3, a complaint may be directed
at any Member State, for the very reason that it is a member of UNESCO; and the
complaint will be examined under a procedure that will preserve its individual character
from beginning to end.
Various aspects of UNESCO’s procedure are not, taken separately, very original. It
is the combination of these aspects and the spirit in which they are applied that gives
the procedure its originality. While the other procedures seem most often to take an
adversarial and accusatory form, the UNESCO procedure—although it is largely
similar—has from the very beginning been deliberately applied exclusively with a view
to seeking a solution with the state concerned. For this reason, everything has been
done to avoid reaching the conclusion that a state has violated human rights. Such a
conclusion would in fact mean a deadlock, preventing the continued search for a solu-
tion. This is the background against which the many and varied stages of the procedure
must be understood, since each stage represents a further level of dialogue with the state
concerned and, consequently, another opportunity to find a satisfactory solution. The
desire shown by the Committee to take its decisions solely by consensus is no doubt a
reflection of the same concern. However, what is perhaps the overriding characteristic of
the UNESCO procedure is the emphasis, or indeed the insistence, on its strictly confi-
dential nature, even after cases have been settled. No publicity has ever been given to the
successes achieved through the UNESCO procedure, in order to sustain the confidence
of the states concerned and secure their cooperation.
The desire for confidentiality has even been taken to the point of declaring inadmis-
sible those communications whose confidentiality had clearly been breached by their
authors. At the 171st session of the Executive Board, the Committee examined its meth-
ods of work and decided that the documents of the Committee would be published or
made accessible to the public after a period of twenty years, as provided for by Rule 29,
paragraph 4, of the Rules of Procedure of the Executive Board, so as to ensure that the
Committee’s achievements were more widely known.
According to UNESCO’s statistics, from 1978 to September 2013, 586 communica-
tions were considered by the Committee on Conventions and Recommendations.78 Of
these, 372 resulted in a positive action, including 221 detainees who were released. The
remaining cases were deemed inadmissible or continue to be under study.

6.2.4 The International Labour Organization

The mandate of the International Labour Organization includes human rights, includ-
ing the rights to form trade unions and bargain collectively, the right to freedom of
association, rights of indigenous peoples and migrant workers, and the rights to be
free from child labour, discrimination in employment, and forced labour. The ILO
monitors state compliance with its norms and standards, contained in conventions

78
  UNESCO, Information Document, 194 EX/CR/2, 20 February 2014.
 The Functions and Competence of Human Rights Tribunals 205

and recommendations, through various procedures, including international complaint

mechanisms.
Three ILO complaint procedures have been utilized to raise human rights
issues: (1) representations made pursuant to Article 24 of the ILO Constitution; (2) com-
plaints under Article 26 of the Constitution; and (3) complaints on freedom of associa-
tion. Representations that a state has failed to observe any ILO Convention to which it is
a party may be submitted by a trade union or an employer organization. The Governing
Body appoints a special committee to examine the substance of the representation and
reviews the report of the committee, including its recommendations. The Governing
Body may publish the representation, the government’s reply and its analysis of the case.
Article 26 complaints may be filed by governments, delegates to the ILO Conference,
or the Governing Body on its own motion, and are considered by a quasi-judicial
Commission of Inquiry. The Commission makes conclusions and recommendations,
following which a report of the case is communicated to the Governing Body and pub-
lished. A recommendation may suggest changes in law or practice to conform to ILO
Conventions. If the government does not implement the recommendations within a
specified time, the Governing Body may recommend to the Conference such action as it
may deem wise and expedient to secure compliance.79
Most ILO complaints are brought under the procedure on freedom of association,
established by agreement between the ILO and the UN Economic and Social Council
(ECOSOC) in 1950. A Committee on Freedom of Association (CFA) hears complaints
filed by trade unions, employer organizations, governments, the United Nations General
Assembly, or ECOSOC and may refer the case to a Fact-Finding and Conciliation
Commission on Freedom of Association. If the CFA finds that a violation has occurred, it
makes recommendations to the parties to remedy the situation, including changes in law
or practice. In 1991, the ILO created a Commission of Inquiry in accordance with Article
26(4) of the ILO Constitution to report to the Governing Body on a complaint concern-
ing Romania’s observance of Convention No. 111 on discrimination in employment.80
The report included a chapter on reparations that described measures taken to rem-
edy the consequences of human rights violations committed by the former regime in
Romania.81 The Report reviewed measures by the new government that included amnes-
ties, establishment of ad hoc committees to settle cases of persons claiming to have
been wronged, adoption of regulations designed to remove discriminatory measures,
re-examination of certain verdicts, and compensation granted by tribunals.

6.3  Regional Human Rights Systems

6.3.1 The European Human Rights System
The European Convention on Human Rights (ECHR) instituted the first regional
human rights system in 1950. The ECHR permits both states parties and individuals
to bring applications against contracting states.82 Until 1998, the obligations of states

79
  ILO Constitution, Art. 33.
80
 Commission of Inquiry to Examine the Observance by Romania of the Discrimination
(Employment and Occupation) Convention 1958 (No. 111), Report of the Commission of Inquiry, 74
ILO OFF.BULL. Series B (1991), supp. 3.
81
  Ibid, paras. 471–506.
82
  The original Convention made individual petition an optional proceeding for the states parties,
but with the entry into force of Protocol 11, individual petition pursuant to Article 34 is a matter of right
and no longer optional. Interstate complaints may be filed under ECHR Article 33.
206 The Institutional Framework

parties were overseen by two organs, the European Commission on Human Rights and
the European Court of Human Rights.83 A reform of the system, enacted by Convention
Protocol 11, replaced both organs with a new European Court of Human Rights
(European Court) which functions on a permanent basis with forty-seven full-time
judges (one for each state party) resident in Strasbourg. The European Court has juris-
diction to decide all cases brought by victims against states parties to the Convention;
the procedure is not optional for the states. The Committee of Ministers, the governing
body of the Council of Europe, enforces decisions of the Court pursuant to ECHR
Article 46.
Only a small percentage of cases is ruled admissible and some of those are settled; in
2014, for example, of 86,063 applications decided, 83,675 were declared inadmissible
or struck out and only 2,388 were decided by a judgment on the merits. In dealing with
the remaining cases on the merits, the Court may hold hearings, receive written submis-
sions, examine witnesses both at its seat in Strasbourg and, if necessary, by interviewing
them elsewhere (Arts. 38, 40). The Court may ask any person or institution of its choice
for information, to express an opinion, or to make a report on any specific point. It also
may accept written or oral comments from amicus curiae and must allow the interven-
tion of the state of nationality of the applicant if the state wishes to participate in the
proceedings (ECHR Art. 36). Hearings are open to the public unless the Court ‘in
exceptional circumstances’ decides otherwise and submissions must also be public unless
the President of the Court closes the record (ECHR Arts. 38, 40).
Most merits judgments are decided by a seven-judge Chamber. The Convention pro-
vides a limited review procedure of Chamber decisions. Within three months of the date
of the judgment, any party to the case may request that the case be referred to the
Grand Chamber, which consists of seventeen judges. A panel of five judges may decide
to accept the request, but only ‘if the case raises a serious question affecting the inter-
pretation or application of the Convention or the protocols thereto, or a serious issue
of general importance’ (ECHR, Art. 43(2)). The Chamber may also relinquish jurisdic-
tion in favour of the Grand Chamber prior to issuing its judgment, for any of the same
stated reasons (ECHR, Art. 30). The Grand Chamber will then issue its own judgment,
which is final. Chamber decisions become final in any of the three following circum-
stances: when the parties declare that they will not ask for a review of the judgment by
a Grand Chamber; three months from the date of the judgment if no request is made;
or when the Grand Chamber panel rejects a referral request. A judgment of the Grand
Chamber is final on the date it is issued (ECHR, Art. 44).
The ECHR gives the Court competence to afford remedies when it determines that a
breach of the Convention has occurred.84 Article 41,85 a slightly amended version of the
original Article 50 provides:
If the Court finds that a decision or a measure taken by a legal authority or any other authority of
a High Contracting Party is completely or partially in conflict with the obligations arising from
[the] Convention, and if the internal law of the said party allows only partial reparation to be

83
  The Commission was created out of fears that a Court alone would be inundated with frivolous
complaints and exploited for political ends. States were unwilling to allow individuals immediate and
direct access to an international court.
84
  On remedies in the European system, see J.L. Sharpe, ‘Article 50’, in L.-E. Pettiti, E. Decaux, and
P.-H. Imbert (eds.), La Convention Europeene des Droits de L’Homme: Commentaire Article par Article
(Paris, 1995), 809–42; Alastair Mobray, ‘The European Court of Human Rights’ Approach to Just
Satisfaction’ [1997] Public Law 647.
85
  For consistency, Art. 41 is used throughout the book, even for cases decided under the former
procedure when the provision was Art. 50 of the Convention.
 The Functions and Competence of Human Rights Tribunals 207
made for the consequences of this decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party.
According to some commentators, ‘this provision shows the Court’s lack of com-
petence to annul or nullify acts of member states which are in conflict with the
Convention’.86 As discussed further below, the Court’s inability to nullify legislative or
other domestic acts does not limit its power to hold that the appropriate remedy for a
violation is for the state itself to amend or nullify measures that violate the Convention.
The ECHR drafters made clear their aim to afford adequate remedies to victims
of human rights violations. The delegates to the 1948 Congress of Europe adopted a
‘Message to Europeans’ at the final plenary session of the Congress expressing the follow-
ing: ‘We desire a Charter of Human Rights guaranteeing liberty of thought, assembly
and expression as well as the right to form a political opposition; We desire a Court of
Justice with adequate sanctions for the implementation of this Charter’.87
The draft Convention presented by the Congress to the Committee of Ministers in
1949 envisaged a Court able to prescribe both monetary compensation and to require that
the state concerned take penal or administrative action against the person responsible for
infringing human rights. The Court could also order ‘repeal, cancellation or amendment’
of the domestic act.88 At the first session of the Consultative Assembly of the Council of
Europe in 1949, it became clear that the proposal for a Court with sanctioning power
was not universally accepted,89 although the draft report of the Legal and Administrative
Commission of the Assembly contained a proposal very similar to that of the Congress.90
The final report submitted by the Commission to the Assembly omitted the proposal.91
The Committee of Experts on Human Rights, which first met in February 1950, fur-
ther considered ‘the competence of the Court to pronounce judgments according dam-
ages, reparations (restitutio in integrum) or moral damages’.92 In the end the Committee
recommended the adoption of a provision substantially like present Article 41. The
Committee noted in its report to the Committee of Ministers that ‘the Court will not
in any way operate as a Court of Appeal, having power to revise internal orders and ver-
dicts’.93 In a Report to the Committee of Ministers,94 the article as adopted was said to be:
in accordance with the actual international law relating to the violation of an obligation by a
State. In this respect, jurisprudence of a European Court will never, therefore, introduce any new

86
  S. Thomsen, ‘Restitution’, in R. Bernhardt (ed.), 10 Encyclopedia of Public International Law
(Amsterdam, 1987), 378.
87
  See Council of Europe, Report of the Control System of the European Convention on Human Rights,
H (92) 14 (Dec. 1992), 4.
88
  Council of Europe, Collected Edition of the ‘Travaux Preparatoires’ of the European Convention on
Human Rights (1975), i, 301–3 [hereinafter I Trauvaux Preparatoires].
89
  See e.g. the remarks of Churchill during the first session: ‘we hope that a European Court might
be set up, before which cases of the violation of these rights in our own body of twelve nations might
be brought to the judgment of the civilized world. Such a Court, of course, would have no sanctions
and would depend for the enforcement of their judgment on the individual decisions of the States now
banded together in this Council of Europe’: Council of Europe, I Travaux Preparatoires, supra n. 88, 34.
See also I Trauvaux Preparatoires, 156, 213, 217–35 and II Travaux Preparatoires, 275–83.
90
  The proposal stated: ‘Art. 24. The verdict of the Court shall order the State concerned: (1) to annul,
suspend or amend the incriminating decision; (2) to make reparation for damage caused; (3) to require
the appropriate penal, administrative or civil sanctions to be applied to the person or persons responsi-
ble’: I Travaux Preparatoires, supra n. 88, 212.
91
  Ibid 217–35.
92
 III Travaux Preparatoires, supra n. 88, 36. M. Perassi proposed the current text of Art. 50: II Travaux
Preparatoires, 231; IV Travaux Preparatoires, 75. An earlier version perhaps more clearly called for just
satisfaction ‘if the constitutional law of the said party only allows the consequences of th[e impugned]
decision or measure to be imperfectly repaired’: III Travaux Preparatoires, 230.
93
 I Travaux Preparatoires, supra n. 88, 204.
94
  Doc. CM/WP I (50) I; A 847 of 24 Feb. 1950, III Travaux Preparatoires, supra n. 88, 246–7.
208 The Institutional Framework
element or one contrary to existing international law. In particular, the Court will not have the
power to declare null and void or amend Acts emanating from the public bodies of the signatory
States.95
At the Second Session of the Consultative Assembly a proposal was again made to enlarge
the powers of the Court to give it ‘appellate jurisdiction’, so that ‘the Court may declare
the impugned judicial laws to be null and void’.96 The Committee rejected the proposal
by majority vote.97
The language of Article 41 finally approved was derived from treaty provisions on the
enforcement of arbitral awards in inter-state proceedings, notably Article 32 of the 1928
General Act on Arbitration, which provides:
If, in a judicial sentence or arbitral award it is declared that a judgment, or a measure enjoined by
a court of law or other authority of one of the parties to the dispute, is wholly or in part contrary
to international law, and if the constitutional law of that party does not permit or only partially
permits the consequences of the judgment or measure in question to be annulled, the parties agree
that the judicial sentence or arbitral award shall grant the injured party equitable satisfaction.98
The reliance on precedents from arbitration agreements may have been based on an
expectation that adjudication before the Court would be primarily inter-state in nature,
rather than originating in individual communications, and that earlier arbitral practice
would therefore be particularly relevant.99
The European Court recognized early on that Article 41 was modelled after the provi-
sions of dispute settlement treaties, including the General Act quoted above and Article
10 of the German–Swiss Treaty on Arbitration and Conciliation.100 The relevant provi-
sions clearly contemplated cessation of the breach, and restitutio in integrum, based on
principles of state responsibility. At the same time, these agreements appeared to foresee
the problem of enforcing an international arbitral judgment. Therefore, when strict
compliance could not be obtained due to domestic law, the treaties allowed compensa-
tion and other forms of satisfaction in lieu of restitution. The intent was to ensure that
the complex and varied interactions of international and municipal law in different
countries should not prevent redress, especially for an injured alien and the state of
nationality. The approach is of dubious merit when applied to modern human rights
cases. Injured aliens could accept compensation and leave the state that committed the
injury, escaping further violation of their rights. Human rights victims, in contrast, are
normally harmed by their state of nationality and remain subject to its laws and prac-
tices. Compensation may remedy a violation that has already occurred, but does not
reduce the threat of future violations if the law or practice is not changed. Moreover,
compensation is a clearly inadequate remedy for one wrongfully incarcerated, as the
Court recognized beginning with the Assanidze case.101
The term ‘satisfaction’ as used in arbitral treaties and in the European Convention
draws upon international practice in regard to state responsibility for injury to aliens.
Injuries to aliens ranged from wrongful death to property losses, while the indirect

95
  Ibid 276; IV Travaux Preparatoires, 44. 96
 IV Travaux Preparatoires, 10.
97
 Ibid, 64.
98
  General Act of Arbitration (Pacific Settlement of International Disputes) (Geneva, 26 September
1928), UNTS No. 2123.
99
  It should be recalled that former Art. 25 allowing individual communications was optional with
states parties to the European Convention while inter-state jurisdiction was compulsory. The entry into
force of Protocol 11 eliminated the optional acceptance of the right of individual petition.
100
  European Court of Human Rights, De Wilde, Ooms and Versyp cases (Vagrancy cases) (Article 50)
(1972) Series A 14.
101
  European Court of Human Rights, Assanidze v. Georgia, (2004), Reports 2004-II.
 The Functions and Competence of Human Rights Tribunals 209

harm to the state of nationality generally affected its honour and dignity. The state usu-
ally claimed pecuniary and non-pecuniary reparations for the injury to the alien, and
non-monetary satisfaction to remedy its own moral injury. Satisfaction could require
punishment of the guilty and assurances as to future conduct, monetary awards, or
declaration of the wrong, especially when coupled with an apology from the offending
state. Many such non-monetary remedies afforded under the heading of satisfaction in
inter-state proceedings may be appropriately applied in the human rights context, espe-
cially apologies and guarantees of non-repetition.
The issue of remedies first came to the Court in the Vagrancy cases.102 The
then-Commission had no comment and, in most subsequent cases, it did not discuss
the Article 41 claims of the applicant. The Commission never provided to the Court
a legal analysis of principles on which the Court could base decisions about remedies.
Applicants and their attorneys were also unhelpful, asking for a variety of remedies with-
out briefing the powers of the Court or providing a rationale or principles on which
damages should be calculated or other relief awarded.
During its first decade, the Court did not have to address the issue of remedies. It
found no violation in the Lawless case,103 its first judgment, while the second case, De
Becker, was settled.104 In the Belgian Linguistics case,105 the constitution and institutions
of Belgium were revised and reformed to comply with the Court’s decision without the
issue of remedies being decided. No violation was found in Wemhoff.106 Not until 1968,
in the Neumeister107 case, did the issue of remedies require adjudication by the Court.
The Court separated its consideration of just satisfaction from the proceedings on the
merits and, ultimately, decided the claim after its 1972 judgments on just satisfaction in
the Vagrancy cases and Ringeisen.108 Between 1972 and 1998, the former Court awarded
one or more of the following remedies in application of Article 41:
(a) a declaration that the state had violated the applicant’s rights
(b) pecuniary damages
(c) non-pecuniary damages
(d) costs and expenses.
In general, the former Court did not demonstrate much enthusiasm for Article
50/41, reflected in its rules and its decisions. The narrow interpretation of former Article
50, given by the Court in its first case,109 hampered the evolution of remedies in the
European system. It left the Court with little flexibility. The Court gave unnecessarily
important weight to the words ‘if necessary’, setting stringent requirements for prov-
ing a causal link between the violation and the injury and rarely affording relief that

102
  European Court of Human Rights, De Wilde, Ooms and Verspy cases (Vagrancy cases) (Article 50),
supra n. 100.
103
  European Court of Human Rights, Lawless v.  Ireland (Merits) (1961) Series A  (1979–80) 1
EHRR 15.
104
  Belgium revised its law to relax the restrictions applicable to de Becker because of his collaboration
with the enemy during the Second World War: European Court of Human Rights, De Becker v. Belgium
(1962) Series A no. 4.
105
  European Court of Human Rights, Case ‘relating to certain aspects of the laws on the use of languages
in education in Belgium’ (1968) Series A no. 6.
106
  European Court of Human Rights, Wemhoff v. Germany (1968) Series A no. 7.
107
  Neumeister v. Austria (Merits) (1968) Series A no. 8; Neumeister v. Austria (1974) Series A no. 17
(Art. 50).
108
  European Court of Human Rights, Ringeisen v. Austria (1971) Series A no. 13.
109
  European Court of Human Rights, Lawless v. Ireland (Preliminary Objections) (1960) Series A no. 1,
para. 20.
210 The Institutional Framework

corresponded to the harm done. In numerous cases it found that the judgment alone
afforded just satisfaction for the moral injury.110 There was no indication of concern for
deterrence (guarantees of non-repetition), although that was traditionally a focus of
‘satisfaction’ in the law of state responsibility for injury to aliens. The broader issues were
left for the political Committee of Ministers.
Belgium argued in the Vagrancy cases that litigants should never receive compensation
for challenging a law applicable to a broad segment of the population.111 The state appeared
to have assumed that successful litigants would receive a windfall, while others would
remain uncompensated. The Court rightly rejected this argument. The fact that some
injured parties choose not to enforce their rights has never been deemed a justification for
refusing to redress the wrongs done to those who do seek vindication. Indeed, the failure
to compensate them would deter anyone from challenging government wrongdoing.112
In the same case, the Court outlined the requirements for affording just satisfaction:
(i) the Court finds a decision or measure taken by an authority of a Contracting State to be in
conflict with the obligations arising from the Convention
(ii) there is an injured party; i.e. material or moral damage, and
(iii) the Court considers it necessary to afford just compensation.113
The last-mentioned criterion means that the Court could decide that no compensa-
tion is due despite a violation and consequent injury: ‘as is borne out by the adjective
“just” and the phrase “if necessary” the Court enjoys a certain discretion in the exercise of
the power conferred by Article 41’.114 The Court has repeatedly stated that applicants are not
entitled to an award of just satisfaction, rather the Court has discretion to grant a remedy
based on equitable considerations and the facts of each case.115 In the Scozzari and Giunta
v. Italy case the Court emphasized the element of necessity:
[U]‌nder Article 41 of the Convention the purpose of awarding sums by way of just satisfaction is to
provide reparation solely for damage suffered by those concerned to the extent that such events con-
stitute a consequence of the violation that cannot otherwise be remedied.116

110
  Rosalyn Higgins justifiably criticized this practice: ‘[t]‌he phrase “the decision of the Court shall
if necessary afford just satisfaction to the party” does not refer to the Court decision (judgment) as to
whether there has been a breach of the Convention. In other words, the intention is not that a party has to
rest content, in the last analysis, with the judgment as his satisfaction. In spite of the unclear terminology,
the intention is exactly the opposite—that the Court shall itself be able to assist by providing, if neces-
sary, for ‘just satisfaction’: Rosalyn Higgins, ‘Damages for Violation of One’s Human Rights’, in Nicolas
A. Sims (ed.), Explorations in Ethics and International Relations (London, 1981), 45, 47. Members of the
European Court have also criticized this practice: see the dissents in e.g. Aquilina v. Malta (2000) EHRR
185, 207; Nikolova v. Bulgaria (2001) 30 EHRR 878 and Kingsley v. UK (2002) 33 EHRR 13.
111
  Vagrancy Cases, supra n. 100.
112
  Where applicants alleged violations of the fair trial provisions of Article 5, states sometimes
argued that Article 5(5) provides lex specialis requiring the Court to consider the possibility of domestic
remedies. In the Court’s view, however, the Article 5(5) right of compensation for wrongful detention
corresponds to a substantive duty imposed on states parties, while Article 41 is a jurisdictional norm
applicable to the Court. See European Court of Human Rights Barbera, Messegue, and Jabardo v. Spain,
(1994) Series A no. 285C, para. 17 (Art. 50).
113
  Ibid, para. 21.
114
  European Court of Human Rights, Guzzardi v. Italy (1980) Series A no. 39, para. 114.
115
  See European Court of Human Rights, Delcourt v. Belgium (1970) Series A no. 11, para. 114;
Handyside v. United Kingdom (1976) Series A no. 24, para. 9; The Holy Synod of the Bulgarian Orthodox
Church (Metropolitan Inokentiy) and Others v.  Bulgaria, Application Nos. 412/03  & 35677/04,
Judgment [Just Satisfaction] of 16 September 2010, para. 23 (‘[t]‌he Court enjoys a certain discretion in
the exercise of that power, as the adjective ‘just’ and the phrase ‘if necessary’ attest’).
116
  European Court of Human Rights, Scozzari and Giunta v. Italy, Application Nos. 39221/98 &
41963/98, Judgment of 13 July 2000, para. 250 (emphasis by the author). See also Savriddin Dzhurayev
 The Functions and Competence of Human Rights Tribunals 211

This restrictive application of Article 41 seems inconsistent with the principle the Court
applies in interpreting other rights:
As has been noted on previous occasions the Convention must be interpreted in the light of its special
character as a treaty for the protection of individual human beings and its safeguards must be con-
strued in a manner which makes them practical and effective.117
The former Court’s decisions on redress varied considerably and lacked a coherent
approach. The Court sometimes seemed to apply a notion of presumed damages while in
other proceedings it refused to make an award based on the lack of proof of a causal link
between the violation and the injury. The Court enunciated clear standards only in regard
to awarding costs and fees; they must have been actually incurred, necessarily incurred and
reasonable in amount.118 Even so, the Court viewed the award as discretionary and rarely
awarded the full amount claimed.119
Applicants have always struggled and largely failed to convince the Court to order the
government to adopt non-monetary measures as just satisfaction.120 The Court held on
numerous occasions over its first four decades that it had no jurisdiction to make ‘conse-
quential orders’ in the form of directions or recommendations to the state to remedy viola-
tions. It rejected requests, for example, that the state be required to refrain from corporal
punishment of children or to take steps to prevent similar breaches in the future.121 It also
refused to insist that a state judged to have wrongfully expelled an alien allow the victim to
rejoin his family.122 The Court continues to insist that it is for the states to choose the method
of remedying the violation, that Convention Article 53 means that ‘a judgment in which the
Court finds a breach imposes on the respondent State a legal obligation to put an end to the
breach and make reparation for its consequences in such a way as to restore as far as possible
the situation existing before the breach’.123
Nonetheless, since 1998 several developments have had significant impacts on the
European Court’s practice and jurisprudence. First, the expansion of the system into
Central and Eastern Europe brought new judges and new cases into the system. The
caseload had already begun to rise in the 1980s (leading to the reform of Protocol 11),
but the volume expanded at an unprecedented rate from the late 1990s. The number of
decisions rose from 5,979 in 1998 to 86,063 in 2014, and even with enhanced produc-
tivity, 69,900 cases were pending decision at the end of 2014. According to the Court

v.  Russia, Application No. 71386/10, Judgment of 25 April 2013, para. 252:  ‘Article 41 . . . is only
designed to make reparation for such consequences of a violation that cannot otherwise be remedied’.
117
  European Court of Human Rights, Cruz Varas and others v. Sweden (1991) Series A no. 201,
para. 94.
118
  Sunday Times v. United Kingdom (1979) Series A no. 30.
119
  See European Court of Human Rights, Matznetter v. Austria (1969) Series A no. 10; Engel and
others v. The Netherlands (1976) Series A no. 22; National Union of Belgian Police v. Belgium (1975) Series
A no. 19; Johnston and others v. Ireland [1986] ECHR 17, 9697/82, [1986] 9 EHRR 203.
120
  Recent examples of this include European Court of Human Rights, Kurić and Others v. Slovenia,
(2012), para. 401; European Court of Human Rights, Oleksandr Volkov v. Ukraine, (2013).
121
 See Campbell and Cosans v. United Kingdom (1982) Series A no. 48, para. 16; McGoff v. Sweden
(1984) Series A no. 83, para. 31; Dudgeon v. United Kingdom (1981) Series A no. 45, para. 15; Gillow
v. United Kingdom (1986) Series A no. 109, para. 9.
122
  European Court of Human Rights, Mehemi v. France, (1997) Reports 1997-VI, p. 1959 (holding
that the judgment of violation constituted just satisfaction with regard to the non-pecuniary damage
and that the Court did not have jurisdiction to order the respondent state to permit the applicant to
return to French territory and issue him a residence permit).
123
  European Court of Human Rights, Papamichalopoulos and others v. Greece (1995) Series A no.
330B (Art. 50), para. 34.
212 The Institutional Framework

more than 34,000 of the pending cases are repetitive ones, most often the result of states’
failing to comply with judgments and make the necessary changes to domestic law and
practice.124 At the beginning of 2015, the president of the Court was considering using
single judges to decide such cases because ‘what matters most in repetitive cases is that
applicants are able to receive compensation as quickly as possible’.125
Two other trends can be observed in recent years. First, the percentage of cases con-
cerning procedural delay of justice or lack of due process in violation of Article 5 or
6(1) rose to become the largest category of cases (forty-two per cent in 2014). Sadly, the
second most frequently found violation was of Article 3, the right to be free from torture
and inhuman or degrading treatment. Violations of the right to an effective remedy
(Article 13) constituted just over ten per cent of the cases, the third highest category.
The second trend is qualitative rather than quantitative: the Court has received a grow-
ing number of large and politically sensitive cases stemming from armed conflicts and
separatist movements, including major inter-state cases filed by Georgia and Ukraine
against the Russian Federation. Cases filed involving armed conflicts in parts of Turkey
and Russia, and efforts to have the Court address the aftermath of conflicts in the former
Yugoslavia,126 the Transdniestrian region of Moldova,127 and even the Second World
War128 add to the considerable pressure on the Court. Taken together, the trends mean
the Court is receiving more and larger, more politically-sensitive cases than ever before.
Several actions have been taken in response to what is perceived to be a growing
crisis. In May 2004, the Committee of Ministers asked the Court to change its practice
on remedies, to give states and the Committee itself more guidance on the measures
necessary to stop further violations. Reflecting its concern with the many repetitious
cases stemming from an unresolved state practice, the Committee adopted a resolu-
tion on cases revealing an underlying systemic problem.129 The Committee of Ministers
invited the Court ‘to identify in its judgments finding a violation of the Convention
what it considers to be an underlying systemic problem and the source of that problem,
in particular when it is likely to give rise to numerous applications, so as to assist States
in finding the appropriate solution and the Committee of Ministers in supervising the
execution of judgments’.130
The Court has followed the direction of the Committee in recent cases by ordering
restitution and detailing other required actions.131 Even before the resolution, the Court
had moved toward more of an emphasis on non-repetition of the violation and on resti-
tution as the preferred remedy when it is possible to effectuate. In Papamichalopoulos and
others v. Greece,132 the Court indicated that although each state can choose the manner of
execution of the judgment, ‘if the nature of the breach allows of restitutio in integrum, it is
for the respondent State to effect it, the Court having neither the power nor the practical
possibility of doing so itself ’.133 In Scozzari and Giunta v. Italy,134 the Court discussed

124
  European Court of Human Rights, Analysis of Statistics 2014 (2015), 8. Italy, Russia and the
Ukraine account for more than 48% of the current cases, with Turkey adding another 13.6%: ibid.
125
  European Court of Human Rights, ‘Foreword’, Annual Report 2014.
126
  See e.g. Bankovic et al. v. Belgium et al. (Admissibility), Decision of 12 Dec. 2001.
127
  European Court of Human Rights, Ilascu and others v. Moldova and Russia, [GC] judgment of 7
Aug. 2004, available at http://www.echr.coe.int.
128
  European Court of Human Rights, Broniowski v. Poland, (2004) judgment of 22 June 2004,
available at http://www.echr.coe.int. See also Broniowski v. Poland (friendly settlement) [GC], (2005)
Reports IX.
129
  Committee of Ministers, Res. of 12 May 2004, DH Res. (2004) 3.
130
  Ibid, para. 1. 131
 See infra Chapters 10, 12.
132
  Papamichalopoulos and others v. Greece supra n. 123. 133
 Ibid.
134
  Scozzari and Giunta v. Italy (2002) 35 EHRR 12.
 The Functions and Competence of Human Rights Tribunals 213

Article 46 on compliance with judgments of the Court along with Article 41 on just
satisfaction, indicating that, taken together, they require the state to do away with the
situation responsible for the violation.
In another change, the Court has moved to deal with repetitive cases by creating the
‘pilot judgment’ procedure, where a single case can produce findings and directions on
the means to cure a situation affecting many other applicants. In the Broniowski judg-
ment, the first pilot case, the European Court held that Poland must either (1) amend
existing or adopt new legislation that would effectively eliminate the systemic violation
of the property rights at issue, or (2) compensate those who were affected with equiva-
lent redress. On 8 July 2005, a little over one year after the Broniowski judgment, the
Polish Parliament passed ‘the Law on the realisation of the right to compensation for
property left beyond the present borders of the Polish State’, which remedied Poland’s
existing systemic failures. In addition, a friendly settlement was reached between the
Applicant and Poland, in which the Applicant was compensated up to the maximum
percentage allowed by statute (twenty per cent). The enactment of new legislation, cou-
pled with the friendly settlement, signified to the Committee of Ministers that Poland
had sufficiently complied with the Court’s judgment of 22 June 2004.135
In another case taken up under the pilot judgment procedure, the European Court
discussed remedies extensively in light of the serious violations found by the Court. Luric
and Others v. Slovenia136 concerned Slovenia’s laws depriving thousands of persons of
nationality and/or permanent residence following the breakup of the former Yugoslavia.
The case was filed by eight applicants among those ‘erased’ by the domestic law and six
of the complaints were found admissible. By the time of the judgment, the status of the
individuals, most of whom had been rendered stateless, had been corrected by domestic
law and the government claimed they no longer qualified as victims. The Court rejected
this argument because the requisite remedies had not been afforded: a ‘decision or meas-
ure favourable to the applicant is not in principle sufficient to deprive him of his status as
a “victim” for the purposes of Article 34 of the Convention unless the national authori-
ties have acknowledged, either expressly or in substance, and then afforded redress for
the breach of the Convention’.137 The scope of redress required depends on all the cir-
cumstances of the case, including, in particular, the nature of the Convention violation
at stake. The Court suggested that it will examine the level of compensation awarded at
the domestic level, or at least look into the ability of the victims to seek and obtain com-
pensation in domestic law for the damage sustained. With respect to the facts in Kuric,
the Court found the local remedies inadequate and this in turn affected the Court’s deci-
sion on the merits, leading it to find a violation of the right to a remedy under Article 13
in respect to Article 8, and to make its own award under Article 41.
The factors the Court pointed to in finding this violation and making its award
included ‘the widespread human-rights concern created by the “erasure” and the fact
that the situation lasted nearly twenty years for the majority of the applicants’. Moreover,
the government failed to comply with decisions of its own Constitutional Court on the
matter for more than a decade. Both the lengthy period in which the applicants experi-
enced insecurity and legal uncertainty and the gravity of the consequences of the ‘eras-
ure’ coupled with the lack of compensation led the Court to reject the adequacy of the
remedies provided domestically. The Court concluded that their prospects of receiving

135
  Joshua L. Jackson, ‘Broniowski v. Poland: A Recipe for Increased Legitimacy of the European
Court of Human Rights as a Supranational Constitutional Court’, (2006) 39 Conn. L. Rev. 759.
136
  European Court of Human Rights, Luric and Others v. Slovenia, (2012) [GC].
137
  Ibid, para. 259.
214 The Institutional Framework

compensation in Slovenia ‘appear, for the time being, to be too remote to be relevant for
the purposes of the present case’.138
The Court considered that it would be premature to examine whether the legal
reforms and other steps taken by the Government had satisfactorily regulated the resi-
dence status of the thousands of ‘erased’ who had been treated in a similar manner to the
applicants. But the absence of compensation was something the Court could address
and it decided to adopt a pilot-judgment procedure because the situation necessarily
extended beyond the interests of the individual applicants to many other potentially
affected persons in the context of systemic, structural, or similar violations. The Court
therefore decided ‘to indicate’, that the government should, within one year, set up an
ad hoc domestic compensation scheme. The Court adjourned examination of Article 41
pecuniary compensation as well as all similar applications pending the adoption of the
suggested remedial measures. The Court went ahead and awarded €20,000 to each suc-
cessful applicant for non-pecuniary damage ‘having regard to the nature of the violations
found’ in the case and the suffering of the applicants, and also awarded € 30,000 in costs
and expenses, below the amount requested, which the Court found ‘excessive’.
The third innovation, adopted in June 2009, is the Court’s ‘priority policy’ establishing
in its Rules of Procedure seven different categories of cases in order to concentrate more
resources on the most important cases, namely the cases falling within the top three cat-
egories (priority applications). The highest category is that of urgent applications, in par-
ticular where there is risk to life or health of the applicant, or other circumstances linked
to the applicant’s personal or family situation, particularly where the well-being of a child
is at issue. Category two consists of cases concerning structural or endemic situations that
the Court has not yet examined, or applications raising an important question of general
interest, in particular a serious question capable of having major implications for domes-
tic legal systems or for the European system, and inter-state cases. The third category is
that of applications which on their face raise as main complaints issues under Articles 2,
3, 4 or 5 § 1 of the Convention (‘core rights’), irrespective of whether they are repetitive,
and which have given rise to direct threats to the physical integrity and dignity of human
beings. It remains to be seen whether these cases will give rise to innovations in the Court’s
jurisprudence on individual remedies. Unfortunately, it is quite likely for the foreseeable
future that the Court will not reach those applications that fall in categories 4–7.
In a final major change, the Court now normally discusses not only Article 41,139 but
Article 46, which concerns the role of the Committee of Ministers in the cases in which
it finds a violation. The Court’s standard language explains its current approach:
By Article 46 of the Convention the High Contracting Parties undertake to abide by the final
judgments of the Court in any case to which they are parties, execution being supervised by the
Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach
imposes on the respondent State a legal obligation not just to pay those concerned the sums
awarded by way of just satisfaction under Article 41, but also to choose the general or, if appropri-
ate, individual measures or both to be adopted. As the Court’s judgments are essentially declaratory,
the respondent State remains free, subject to the supervision of the Committee of Ministers, to
choose the means by which it will discharge its legal obligation under Article 46 of the Convention,
provided that such means are compatible with the conclusions set out in the Court’s judgment.140

138
  Ibid, para. 268.
139
  Despite the restrictive approach to compensation, the sheer number of cases means the total
awards of just satisfaction are significant. The amounts were EUR 119,558,467 in 2012; and 71,284,302
in 2013. Against Turkey the amounts were: 23,424,794 in 2012; and 8,232,823 in 2013.
140
 Citing Scozzari and Giunta v. Italy, para. 249, ECtHR 2000-VIII; Sejdovic, § 119; and Aleksanyan
v. Russia, (2008) § 238.
 The Functions and Competence of Human Rights Tribunals 215
However, in exceptional cases, with a view to helping the respondent State to fulfil its obliga-
tions under Article 46, the Court will seek to indicate the type of measure that might be taken in
order to put an end to a situation it has found to exist.
Indeed, the Court has increasingly developed its recommendations regarding both
individual and general measures. In L. v. Lithuania, the Court appeared to coordinate
the individual and the general measures to be adopted, because
[t]‌he Court  . . . considers that the applicant’s claim for pecuniary damage would be satisfied by
the enactment of the subsidiary legislation at issue in the present case within three months of the
present judgment becoming final in accordance with Article 44 § 2 of the Convention. However,
should that prove impossible, and in view of the uncertainty about the medical expertise currently
available in Lithuania, the Court is of the view that this aspect of the applicant’s claim could be
satisfied by his having the final stages of the necessary surgery performed abroad and financed, at
least in part, by the respondent State. Consequently, as an alternative in the absence of any such
subsidiary legislation, the Court would award the applicant EUR 40,000 in pecuniary damage.141
The Court is increasingly referring to the need for legislative reforms. This develop-
ment began with the general observation that the state must ‘remove any obstacles in its
domestic legal system that might prevent the applicant’s situation from being adequately
redressed’.142 Pilot judgment cases go further, as in Hutten-Czapska v. Poland, where the
Court said that the state had to ‘secure in its domestic legal order a mechanism main-
taining a fair balance between the interests of landlords, including their entitlement to
derive profit from their property, and the general interest of the community . . . ’ to pro-
tect property rights under the Convention. The means to do this is left to the state. The
Court sometimes refers to Convention obligations when recommending legislation.143
In Urper and Others v. Turkey, the Court said that Turkey should revise its domestic law
at issue in the case ‘with a view to putting an end to the practice of suspending the future
publication and distribution of entire periodicals’.144
The European Court continues to have a restrained approach to redress. It probably
adopted its initially narrow interpretation of its remedial powers because the individual
was not the focus of the system at its inception.145 Moreover, in most instances, states
may comply with a judgment through any of several means.146 A domestic court is not

141
  European Court of Human Rights, L. v. Lithuania, (2007) Application No. 27527, para. 74.
142
  Maestri v. Italy, (2004) ECtHR 76; and Assanidze v. Georgia, (2004) Application No. 71503/03.
143
 European Court of Human Rights, Manole and Others v.  Moldova, (2009). Application
No. 13936/02 (legislative reform to comply with art. 10); Lukenda v. Slovenia, (2005) Application
No. 23032/0 (legislative amendments on legal remedies ‘characteristics [of which] are to be found in
the Court’s case-law cited in the judgment’ at para. 98). See also Volkov v. Ukraine, (2013) Application
No. 21722/11; Aslakhanova and Others v. Russia, (2012), para. 238; Dimitrov and Hamanov v. Bulgaria,
(2011) Application Nos. 48059/06, 2708/09; Gulmez v. Turkey, (2008) Application No. 16330/02.
144
  European Court of Human Rights, Urpur and Others v. Turkey (2009). See also Auad v. Bulgaria,
(2011) Application No. 46390/10 (five specific recommendations to amend the Bulgarian Aliens Act).
145
  ‘The original purpose of the Convention was not primarily to offer a remedy for particular indi-
viduals who had suffered violations of the Convention but to provide a collective inter-state guarantee
that would benefit individuals generally by requiring the national law of the contracting parties to be
kept within certain bounds. An Article 25 application was envisaged as a mechanism for bringing to
light a breach of an obligation owed by one state to others, not to provide a remedy for an individual
victim’: D. Harris, M. O’Boyle, and C. Warbrick, Law of the European Convention on Human Rights
(2nd edn, Oxford), 33.
146
  See e.g. Vgt Verein gegen Tierfabriken v. Switzerland (2002) 34 EHRR 4, para. 154: ‘Various pos-
sibilities are conceivable as regards the organization of broadcasting television commercials; the Swiss
authorities have entrusted the responsibility in respect of national programmes to one sole private com-
pany. It is not the Court’s task to indicate which means a State should utilize in order to perform its
obligations under the Convention’.
216 The Institutional Framework

obliged to give direct effect to the Court’s judgments,147 but international law requires a
change in any law or practice found incompatible with the Convention, in order to com-
ply with the state’s Article 1 obligation to secure the rights and freedoms guaranteed by
the treaty. Until recently states generally complied with the Court’s judgments by chang-
ing laws and practices, although the changes have not always had retrospective effect to
remedy the harm caused the applicant. Also affecting interpretation is the governing
principle of subsidiarity, particularly emphasized and reiterated by a few states unhappy
with decisions taken against them. It has served to reinforce the Court’s caution:
It is fundamental to the machinery of protection established by the Convention that the national
systems themselves provide redress for breaches of its provisions, the Court exerting its supervisory
role subject to the principle of subsidiarity.148
The failure of states to comply with this obligation is revealed in the large series
of successive cases against the same state for the same breach, which has not only left
several applicants without a remedy to repair the consequences of the violation,149 but
threatens the effectiveness of the system. Yet, the Court appears divided on its role in
remedying and deterring violations. On 21 January 2005, Court President Wildhaber
posited a constitutional aim for the Court during a speech delivered at the opening of
the judicial year, stating that ‘the Court is progressively reverting to its core business,
to the substantial cases, cases which actually contribute to enhancing the protection of
human rights throughout the Council of Europe States and even beyond’.150
Observers have concluded that Article 41 is a secondary matter for the Registry,
the majority of the judges and the contracting states.151 The Court expressly claims that
‘the awarding of sums of money to applicants by way of just satisfaction is not one
of the Court’s main duties but is incidental to its task of ensuring the observance by
States of their obligations under the Convention’.152 Reform proposals in 2010 recom-
mended that the Registry create a department for examining Article 41 claims, but the
recommendation was not followed. According to expert Elizabeth Lambert, just one
person in the Registry provides assistance and expertise on this issue to lawyers preparing

147
  European Court of Human Rights, Vermeire v. Belgium (1991) Series A no. 214C. Some national
courts can enforce judgments of the European Court (e.g. Malta, Spain) and others cannot (e.g.
Germany). See ‘The European Convention on Human Rights: Institution of Relevant Proceedings at
the National Level to Facilitate Compliance with Strasbourg Decisions’, Council of Europe Committee
of Experts Study at (1992) 13 Hum.Rts.L.J. 71.
148
  Z. and others v. United Kingdom (2002) 34 EHRR 3.
149
  See e.g. Incal v. Turkey, [GC] decision of 9 June 1998. By a 12–8 vote, the Court decided that
Turkey had violated the freedom of expression and right to a fair trial of the applicant. The consequence
of the conviction included a substantial loss of civil rights. The applicant could not found an associa-
tion or trade union, or become a member of trade union executive committee. He was also barred from
founding or joining a political party and could not stand for election and was debarred from entering the
civil service. The applicant sought a restoration of his civil rights. The Court said it had no jurisdiction
to order such measures.
150
  Luzius Wildhaber, Pres. of the Eur. Ct. of Hum. Rts., Speech at the Solemn Hearing of the
European Court of Human Rights on the Occasion of the Opening of the Judicial Year, 21 Jan. 2005,
at 4, available at http://www.echr.coe.int/ECHR/EN/Header/Press/Other+Information/Presidents+
speeches/. Contrast the Court’s judgment in Karner v. Austria (2004) 38 EHRR 24 (stating that ‘the
primary purpose of the Convention system is to provide individual relief . . . ’ para. 26).
151
  Elizabeth Lambert-Abdelgawad, ‘Is There a Need to Advance the Jurisprudence of the ECtHR
with Regard to the Award of Damages?’, paper delivered at the Conference Judgments of the European
Court of Human Rights—Effects and Implementation, 20–21 September 2013, Georg-August-University
Göttingen, Germany.
152
  European Court of Human Rights, Salah v. The Netherlands, (2006), Application no. 1948/04,
para. 50.
 The Functions and Competence of Human Rights Tribunals 217

the judgments; making sure that the Court’s early practice on Article 41 is consistently
followed.153
Nonetheless, as Articles 41 and 46 are now seen as closely interconnected, the Court
appears increasingly willing to adopt orders of individual and/or general measures when
such measures are deemed necessary in order to help the state to redress a violation,
prevent similar cases from arising, or because the nature of a violation is considered to
leave no choice to the state on how to implement the judgment (e.g. liberty in the case of
wrongful detention).154 This new jurisprudence on Article 46 has had little impact on the
way the Court determines individual redress under Article 41, however, and generally
the Court continues to view its remedial role restrictively and shifts much of the judicial
burden onto the Committee of Ministers.155 For its part the Committee of Ministers has
defined in its Rules of Procedure the types of measures that a respondent state must take
to comply with a judgment.156
In terms of procedure, the early Court often reserved the issue of just satisfaction and,
before making its decision, took into account the individual measures the state adopted
after the decision on the merits.157 It may still decide to reserve the issue of pecuniary
damage,158 or even dismiss the claim on the assumption that domestic remedies can
provide the remedy.159 The Court is not always consistent on this point, however.160
In Dacia S.R.L. v. Moldova, for example, domestic proceedings were pending, but the
Court decided to proceed with just satisfaction based on the failure of the Supreme
Court of Justice to provide an appropriate remedy for the violation.161
The role the ECHR assigns to the Committee of Ministers is to supervise the exe-
cution of judgments, but to the extent the Ministers specify individual and general
measures the state must take, its role becomes as much judicial as executive. Individual
measures provide redress to the applicant, including any just satisfaction which the
Court may have awarded the applicant under Article 41 of the Convention,162 but may

153
 Lambert, supra n. 151.
154
  See, e.g. Yakisan v. Turkey, (2007) Application No. 11339/03.
155
  European Court of Human Rights, Youth Initiative for Human Rights v. Serbia, (2013) Application
No. 48135/06, concerned an NGO that had sought information and won a domestic judgment of dis-
closure that was not enforced. The European Court decided: ‘The respondent State must ensure, within
three months of the European court’s judgment becoming final, in accordance with Article 44 sec. 2
of the Convention, that the intelligence agency of Serbia provide the applicant with the information
requested’.
156
  The specific requirements for compliance are defined in the Committee of Ministers’ Rules of
Procedure for the supervision of the execution of judgments and of the terms of friendly settlements.
Rule 6.2 explains that the measures to be taken are of two types. First, individual measures concern the
applicants and relate to the obligation to erase the consequences suffered by them because of the viola-
tions established so as to achieve, as far as possible, restitutio in integrum. Second, general measures relate
to the obligation to prevent violations similar to that or those found or putting an end to continuing
violations. In certain circumstances they may also concern the setting up of remedies to deal with viola-
tions already committed.
157
  European Court of Human Rights, Piersack v. Belgium, (1984) Application No. 8692/79; De
Cubber v. Belgium, (Just Satisfaction) (1987) Application No. 9186/80.
158
 In Oleksandr Volkov v. Ukraine, supra n. 120, para. 211, the Court considers that ‘the question of
compensation for pecuniary damage is not ready for decision’ while, at the same time, awarding the appli-
cant the sum of 6,000 euro for non-pecuniary damage. See also Kurić v. Slovenia, supra n. 120, para. 10.
159
  European Court of Human Rights, Lo Tufo v. Italy, (2005) Application No. 64663/01, para. 69.
160
  European Court of Human Rights, Ernst and Others v. Belgium, (2003) Application No. 33400/96;
Iatridis v. Greece, (1999) and Iatridis v. Greece, (2000) (Just Satisfaction); Baybasin v. The Netherlands,
(2006) Application No. 13600/02 and Baybasin v. The Netherlands, (2007) (Just Satisfaction). Contra:
Mikheyev v. Russia, (2006) Application No. 77617/01.
161
  Dacia S.R.L. v. Moldova (Just Satisfaction) (2009) 48 EHRR SE17, para. 45.
162
  The payment of just satisfaction is usually specified in considerable detail in the Court’s judgments
but the mode of payment may nevertheless raise complex issues, regarding such matters as the validity
218 The Institutional Framework

also require action to arrive as closely as possible to restitutio in integrum. The Committee
of Ministers163 can require the reopening of unfair criminal proceedings, destruction of
information gathered in breach of the right to privacy, enforcement of an unenforced
domestic judgment, or revocation of a deportation order issued against an alien who
faces a real risk of torture or other forms of mistreatment in the country of destination.164
Beyond these individual measures of redress, general measures aim to prevent viola-
tions similar to the one(s) found and may imply a review of constitutional provisions,
legislation, regulations and/or judicial practice, administrative procedures, and prison
conditions. When determining general measures, the Committee of Ministers pays par-
ticular attention to the efficiency of domestic remedies, in particular where the judgment
reveals important structural problems. The Committee has insisted, however, that the
principle of subsidiarity governs all Convention matters, meaning that states are, in
principle, free to choose the means to meet their obligations under the Convention,
under the Committee’s supervision.
Finally, it is evident that in recent years there has been a general trend to limit access
by individual applicants, based on the argument that restrictions are necessary to pre-
vent the system from collapsing due to a constantly rising caseload. The problem should
rather be seen as one for which a few states are responsible as they continue to violate
rights and fail to comply with judgments, causing large numbers of repetitive cases. Most
actions taken by the Court have been directed at the applicants, however. A single judge
can now declare a case inadmissible, without appeal or reasoned decision. In addition,
Protocol No. 15 reinforces the principle of subsidiarity and the states’ margin of appre-
ciation in implementing the Convention. When it enters into force, the time to file cases
will be shortened to four months. Protocol 14 has already added a further admissibility
criterion of significant disadvantage to the applicant resulting from the alleged violation.
The Committee of Ministers has placed new emphasis on the applicants’ responsibility
to inform the Committee of Ministers in case of problems receiving the just satisfaction
awarded by the Court. This means the Department for the execution of the Court’s
judgments limits itself in principle to registering the payments of the sums awarded by
the Court. Applicants have only two months to bring any complaints to the attention of
the Department. If such complaints are received, the payment will be subject to a special
examination by the Department, and if necessary, the Committee of Ministers itself.
Even more stringent proposals have been considered and may yet be adopted, such as the
introduction of fees for applicants. It does not appear that the same degree of attention
is being paid to non-compliance by the persistent violators.
For those cases that succeed in arriving at a merits determination, however, the
Court’s practice seems to be moving in a more favourable direction. The development of
positive obligations, particularly the procedural obligations under Article 2 and 3, has

of powers of attorney, the acceptability of the exchange rate used, the incidence of important devalua-
tions of the currency of payment, the acceptability of seizure and taxation of the sums awarded etc. The
practice of the Committee of Ministers is detailed in a memorandum prepared by the Department for
the execution of judgments of the Court CM/Inf/DH(2008)7(final).
163
  See Committee of Ministers Recommendations CM/Rec. (2004)6 and CM/Rec. (2010)3 on
domestic remedies.
164
  The Committee of Ministers issued a specific recommendation to member states in 2000 invit-
ing them ‘to ensure that there exist at national level adequate possibilities to achieve, as far as possible,
“restitutio in integrum” and, in particular, adequate possibilities of re-examination of the case, includ-
ing reopening of proceedings, in instances where the Court has found a violation of the Convention’.
Recommendation No. R(2000)2 on the re-examination or reopening of certain cases at domestic level
following judgments of the European Court of Human Rights and Explanatory memorandum.
 The Functions and Competence of Human Rights Tribunals 219

been considerable. The pilot-judgment procedure adds an ability to redress numerous

violations with a single case. In addition to, or as an alternative to, a pilot judgment,
when the Court finds a systematic practice, it has begun, pursuant to Article 46, to make
indications of general or individual measures the government must take to address the
violations; the Court insists, however, that these indications are non-binding and sepa-
rate from just satisfaction under Article 41.165

6.3.2 The European Social Charter

The European Social Charter has evolved and gained strength over time, adding to its
list of rights by an Additional Protocol adopted in 1988 and a Revised Charter in 1996
and reforming its system of supervision in a 1991 Protocol.166 An Additional Protocol
of 1998 provided for a system of collective complaints that allows complaints of ‘unsat-
isfactory application of the Charter’ (Art. 1) to originate with one of several types of
groups: international organizations of employers and trade unions which participate in
the work of the Governmental Committee according to Article 27(2); other international
non-governmental organizations having consultative status with the Council of Europe
and appearing on a special list drawn up by the Governmental Committee; and national
organizations of employers and trade unions from the contracting party concerned.
Each state also may declare that it accepts the right of its national non-governmental
organizations to lodge complaints against it. Organizations may submit complaints only
in respect of those matters regarding which they have been recognized as having particu-
lar competence (Additional Protocol, Art. 3).
Collective complaints are examined by the ECSR. It determines admissibility first
and then examines admissible complaints on the basis of written submissions and hear-
ings, if necessary. The Committee prepares a report on its examination of the complaint
and the conclusions reached. The report is transmitted to the Committee of Ministers,
the complaining organization, and the states parties. On the basis of the report, the
Committee of Ministers adopts a resolution on the matter, which may contain recom-
mendations to the state concerned. At the time the resolution is adopted, or four months
after the Committee of Ministers receives the report, the Parliamentary Assembly also
receives the report, which is then made public. The state must submit information on its
measures to comply with the recommendations made (Art. 10).
In the first two years after the Protocol entered into force, ten complaints were regis-
tered. The first application, International Commission of Jurists v. Portugal, Application
No. 1/1998, complained of child labour in violation of Article 7(1) of the Charter. The
ECSR transmitted the report containing its decision on the merits of the complaint
to the Committee of Ministers on 10 September 1999. The Committee of Ministers
adopted Resolution ChS (99)4 on 15 December 1999 agreeing that a violation had been
shown. Several consecutive complaints were then lodged against France, Italy, Greece,
and Portugal concerning the right of armed forces to organize and bargain collectively.
Over the period 1998–2013, the European Committee of Social Rights received 103
collective complaints. The Committee issued 186 decisions, including eighty-five deci-
sions on the merits. Among the developments during this time, a growing number of
civil society organizations sought to intervene before the Committee as third parties. The

165
  European Court of Human Rights, Annual Report 2014, 82.
166
  For a general review of the evolution of the European Social Charter, see David Harris, ‘The
Council of Europe (II): The European Social Charter’, in R. Hanski and M. Suksi (eds.), An Introduction
to the International Protection of Human Rights (Turku, 1997), 243.
220 The Institutional Framework

Committee has also begun to receive requests for immediate measures. Substantively,
in 2013 alone, the Committee adopted decisions concerning the health risks posed by
environmental problems in Greece, the retirement age for seamen in Norway, posting
of workers and problems of reconciling economic freedoms and social rights in Sweden,
protection of foreign minors in Belgium, truancy and protection of autistic persons in
France, access to abortion procedures in Italy, and decisions concerning the reduction of
pensions in Greece. The Committee makes findings on violations, but rarely issues any
views on recommended redress. Instead, in February 2012, the Committee of Ministers
instructed its Group of Rapporteurs on social and health issues to follow up on the
decisions of the European Committee of Social Rights in the context of the system of
collective complaints and it now does so to monitor compliance with required changes
in law and practice.

6.3.3 The European Court of Justice

Individual claimants in the EU may seek an award of damages or other remedies for
violations of the fundamental rights which are an integral part of the general principles
of law the Court is required to apply. The Court looks to the European Convention
on Human Rights167 and the EU Charter of Fundamental Rights adopted in 2000.
Although not a human rights court per se, the European Court of Justice considers
issues of human rights. The Treaty on European Union first specified that the Union
‘shall respect fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms . . . and as they result from
the constitutional traditions common to the Member States, as general principles of
Community law’.168 In this framework, the European Court of Justice has developed
a law of remedies that provides a useful contrast to the jurisprudence of the European
Court of Human Rights.169
As early as 1960, the ECJ declared that if it ruled in a given case that a legislative or
administrative measure is contrary to Community law, ‘the Member State is obliged . . . to
rescind the measure in question and make reparation for any unlawful consequences
which may have ensued’.170 In Francovich and Bonifaci v. Italian Republic,171 the Court
held that a member state may be liable in damages for failure to implement a direc-
tive because ‘the full effectiveness of Community rules would be weakened if individu-
als were unable to obtain compensation when their rights are infringed by a breach of
Community law for which a Member State can be liable’.172 The directive must confer
rights on individuals, the content of the rights should be identifiable, and there should
be a causal link between the damage suffered and the member state’s failure to imple-
ment the directive.

167
  See e.g. Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, [1980] 3 CMLR 42, (1981) 3, EHRR
140; Case 4/73, Nold v. Commission (Nold II) [1974] ECR 491 at 507, para. 13. See, generally, Nanette
A. Neuwal and Allan Rosas (eds.), The European Union and Human Rights (1995); M.H. Mendelson,
‘The European Court of Justice and Human Rights’ (1981) 1 Y.B. Eur. Law 125.
168
  This provision confirms the jurisprudence of the ECJ, which classified fundamental rights as
‘general principles of Community law’. See Case 29/69, Stauder v. Ulm [1969] ECR 419; Case 11/70,
Internationale Handelsgesellschaft [1970] ECR 1125; Case 4/73, Nold v. Commission, supra n. 167.
169
  See, generally, T. Heukels and A. McDonnel (eds.), The Action for Damages in Community Law
(The Hague, 1997).
170
  Case 6/60, Humblet v. Belgium [1960] ECR 559.
171
  C-6/90 and C-9/90, Francovich and Bonifaci v. Italian Republic [1991] 1 ECR I-5357.
172
  Ibid, para. 33.
 The Functions and Competence of Human Rights Tribunals 221

On the basis of the principle of subsidiarity the ECJ has declared itself competent to
decide whether or not national courts provide an adequate remedy. In the Von Colson
judgment, the Court discussed the duty of national courts to construe national law in
conformity with Community law. The case related to Article 6 of Council Directive
76/207 of 9 February 1976, pursuant to which member states must provide an effective
judicial remedy and impose sanctions in respect of prohibited discrimination between
men and women. The Court noted that actions for damages are not only intended to
repair existing damages, but also to prevent future harm; thus, compensation must be
‘effective’ and ‘have a deterrent effect’. ‘[C]‌ompensation must in any event be adequate
in relation to the damage sustained and must therefore amount to more than purely
nominal compensation’.173 The Court held that the prohibition of discrimination must
be enforced by sanctions that have a real deterrent effect and that national law must be
interpreted to achieve the result envisaged by Article 6.
In Dekker174 and Marshall v. Southampton and South West Hampshire Area Health
Authority,175 the Court expanded on the duty to provide effective remedies. In Dekker,
the Court held that the duty to provide effective judicial protection set forth in Article 6
of the directive implies that unlawful discrimination constitutes an objective breach of
the principle of equal treatment and entails liability on the part of the employer without
need for further proof of fault or the absence of any ground discharging such liability.
Marshall concerned gender discrimination in respect of the age of retirement.
Marshall I resulted in a finding in the individual’s favour176 and the case was remanded
by the English Court of Appeal to the industrial tribunal on the question of a remedy.
The national Sex Discrimination Act prohibited sex discrimination, but treated it dif-
ferently from other types of employment discrimination, including placing a limit on
compensation for breaches (at the time it was UK£6,250). After the statutory maximum
was paid by the health authority, the industrial tribunal found that Marshall’s financial
loss was actually UK£18,405, including interest on the loss. The tribunal awarded that
amount plus UK£1,000 for moral injury. The tribunal specifically found that the statu-
tory limit made the compensatory remedy inadequate and this inadequacy constituted a
further breach of the EC directive. On appeal, the House of Lords referred the question
to the ECJ for a preliminary ruling on the compatibility of the statutory remedy with
Article 6 of Council Directive 76/207.
The Court decided that it is impossible to establish real equality without an appropri-
ate system of sanctions that the state is free to choose within limits. The system of sanc-
tions must be appropriate: i.e. ‘such as to guarantee real and effective judicial protection.
Moreover it must also have a real deterrent effect on the employer’. Therefore, if the
state chooses to sanction through the award of compensation to victims of a breach, that
compensation must be adequate in relation to the damage sustained. In Heylens,177 the
Court reiterated that effective remedies must be provided for all breaches of fundamental
rights in the Community.178

173
  Case 14/83, Von Colson and Kamann v.  Lord Nordrhein-Westfalen [1984] ECR 1891, 1909,
para. 28.
174
  Case C-177/88, [1990] ECR I-3941.
175
  Case C-271/91, Marshall II [1993] ECR I-4400, [1993] 3 CMLR 293.
176
  Case 152/84, Marshall v. Southampton and Southwest Hampshire Area Health Authority [1986]
ECR 723, [1986] 1 CMLR 688.
177
  Case 222/86, UNECTEF v. Heylans and others [1987] ECR 4097, citing Case 222/84 Johnston
v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, 1663.
178
  Case 222/86, UNECTEF v. Heylans and others [1987] ECR 4097, para. 14.
222 The Institutional Framework

Other judgments affirm the right to a remedy.179 According to the Court, the right
to a remedy is afforded for all rights guaranteed by Community law, and applies to the
member states when they are implementing Community law, as well as to the institutions
of the Union. Judicial review by the ECJ itself ‘reflects a general principle of Community
law stemming from the constitutional traditions common to the Member States and
enshrined in Articles 6 and 13 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms’.180 Indeed, the ECJ views access to justice as ‘one of
the constitutive elements of a Community based on the rule of law’.181 In this respect,
in recent cases the Court has noted the inclusion of the right to an effective remedy in
Article 47 of the now binding Charter of Fundamental Rights,182 finding the Charter to
‘show the importance of the rights it sets out in the Community legal order’.183
Charter Article 47 corresponds to Article 6(1) of the ECHR, but is broader, because
the right to a fair and public hearing is not limited to disputes relating to civil rights and
obligations. According to the ECJ, the right to a fair hearing is one of the consequences
of the fact that the Community is a community based on the rule of law.184 The final
paragraph of Article 47 is based upon the ECtHR Airey185 decision and requires provi-
sion be made for legal aid where the absence of such aid would make it impossible to
secure an effective remedy.
The Charter seems favourable to affording remedies, but in practice the restrictive
rules on standing make it difficult to present certain types of cases to the ECJ. The basis
for challenging the acts of EC institutions, for example, is Art. 230 of the EC Treaty
which allows actions to be brought to annul a decision either addressed to the applicant
or ‘of direct and individual concern’ to that person.186 The case law of the ECJ imposes
stringent requirements as to the particular interest that individuals must have in order to
be able to institute proceedings before the Community courts. Persons have locus standi
only if a ‘decision affects them by reason of certain attributes which are peculiar to them,
or by reason of factual circumstances which differentiate them from all other persons
and thereby distinguish them individually in the same way as the person addressed’.187
Although the restrictive standing doctrine was enunciated prior to adoption of the
Charter of Fundamental Rights, it has been reaffirmed subsequently,188 despite the right

179
  Case C-97/91, Borelli [1992] ECR I-6313, judgment of 3 December 1992.
180
  Joined Cases T-116/01 and T-18/01, P&O European Ferries (Vizcaya) v. Commission, [2003] ECR
___ (Court of First Instance, 5 Aug. 2003). Competitors have standing to challenge unlawful aid and
require reinstatement of the prior situation because to conclude otherwise would render ineffective
Community judicial review of the legality of measures adopted by the Community institutions.
181
  Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01, Philip Morris International
Inc. and Others v. Commission [2003] ECR __ (Court of First Instance, 15 Jan. 2003) (Inadmissibility of
applications to annul two decisions by the Commission to commence legal proceedings against appli-
cants in a U.S. federal court because the action does not alter the applicants’ legal position).
182
  Ibid, para. 122; P&O Ferries, supra n. 180, para. 207. The Charter of Fundamental Rights, origi-
nally adopted as a declaration, was incorporated and given treaty status by the Treaty of Lisbon.
183
  Philip Morris, supra n. 181, para. 122.
184
  See Case 294/83, ‘Les Verts’ v. European Parliament, [1988] ECR 1339, judgment of 23 April 1986.
185
  Airey v. UK, 32 ECtHR 11.
186
  Art. 230(4) EC provides that ‘[a]‌ny natural or legal person may . . . institute proceedings against a
decision addressed to that person or against a decision which, although in the form of a regulation or a
decision addressed to another person, is of direct and individual concern to the former’.
187
  Case 25/62, Plaumann & Co. v. Commission, [1963] ECR 95, 107; Case C-321/95, Greenpeace
Council and Others v. Commission [1998] ECR I-1651, para. 7.
188
  See Case C-50/00, Union de Penquenos Agricultores (UPA), [2002] 3 CMLR 1.
 The Functions and Competence of Human Rights Tribunals 223

to a remedy contained in the Charter, the misgivings expressed by different Advocates

General,189 and disagreement expressed by the Court of First Instance.190
Whether an action is open to challenge or not depends on its substance rather than its
form and requires that the act have binding effect and an impact on the interests of the
applicant. In effect, there must be a distinct change in the legal position of the applicant
to meet the jurisdictional requirements. In the Philip Morris Case,191 the Court held
that a lawsuit brought by the Commission in the United States is not an act that can
be challenged by an annulment proceeding. According to the EJC this is not a denial
of access to justice because there might still be an action against the Commission for
damages for non-contractual liability under Art. 235 EC. While the EJC says it may
seem desirable that individuals should have injunctive or preventive relief in respect to
actions of Community institutions that do not amount to decisions, ‘it is clear that a
remedy of that nature . . . is not provided for by the Treaty’.192 Any change to the system
of legal remedies and procedures would have to come from the Member States through
amending the Treaty.
Individuals and legal persons affected by directives prior to their incorporation into
domestic law and directly enforceable regulations may also find themselves without
a remedy. In Salamander and Others v. Parliament and Council,193 the Court of First
Instance ruled that a directive which requires Member States to impose obligations on
economic operators is not of itself, before the adoption of national transposing meas-
ures and independently of them, of such a nature as to affect directly the legal position
of the operators. Any harm incurred by persons during the implementation period is
seen to bear only on their factual situation and does not result from the directive. The
Commission further takes the position that no directive is ripe for challenge before
either national courts or the ECJ until the period for its implementation has expired.194
However, if a national court is faced with a genuine dispute concerning Community
law and submits a question for a preliminary ruling it is appropriate for the Court to
respond,195 especially because Art. 230 EC does not allow private parties to challenge
the validity of a directive directly before the Court of First Instance. The preliminary
reference procedure can be deemed to be another form of remedy designed to offer legal
protection to individuals.
In some instances there may be no potentially available redress unless the individual is
willing to violate the EC measure and risk the consequences. In Jego-Quere et Cie,196 the
applicant fishing company was subject to a Commission Regulation on fishing but unable
to bring an action to challenge it in a national court through a request for a preliminary
ruling or to begin an action for non-contractual liability against the Commission under
Arts. 235 and 288(2). The company sought to use Art. 230, despite the strict standing
requirements previously established. The Court of First Instance (CFI) agreed that it was
unsatisfactory to require the company to violate the law in order to have access to justice

189
  See Opinion of Advocate General Geelhoed of 10 Sept. 2002 in The Queen v. Secretary of State
for Health, ex parte British American Tobacco (Investments) Ltd. And Imperial Tobacco Ltd, [2002] ECR
I-11453, para. 51; Opinion of Advocate General Jacobs in Case-50/00, UPA.
190
  Case T-177/01, Jego-Quere et Cie SA v. Commission, [2002] ECR II-2365, [2002] 2 CMLR 44.
191
  Philip Morris v. Commission, supra n. 181. 192
  Ibid, para. 124.
193
  Joined Cases T-172/98, T-175/98, T-176/98 and T-177/98, Salamander and Others v. Parliament
and Council, [2000] ECR II-2487, para. 54.
194
  Case C-316/93, Vaneetveld [1994] ECR I-763.
195
  Case C-491/01, R. v. Secretary of State for Health ex parte British American Tobacco (Investments)
Ltd. And Imperial Tobacco Ltd, [2002] ECR I-11453; [2003] 1 CMLR 14. See also, Opinion of
A.G. Geelhoed, supra n. 189 at para. 47, citing Art. 47 of the Charter of Fundamental Rights.
196
  Jego-Quere, supra n. 190.
224 The Institutional Framework

and that the applicant should not be deprived of the right which is an essential element
of the Community legal order and affirmed in the Charter of Fundamental Rights. The
CFI thus refused to follow precedent and enunciated a broader standing test: a natural
or legal person was to be regarded as individually concerned by a Community measure
of general application that concerned the person directly if the measure affected his or
her legal position in a definite and immediate manner by restricting the individual’s
rights or imposing obligations on him or her.197 It is immaterial how many other persons
are likewise affected. Despite this ruling, the plenary Court of Justice in the July 2005
UPA198 case, reaffirmed the traditional doctrine.
The Charter does not indicate the type or scope of remedies that should be afforded,
only that they should be ‘effective’. The ECJ, when seeking to repair damage caused by
the Community, applies ‘the general principles common to the laws of the Member
States’, i.e. national laws concerning state liability. As early as 1960, the ECJ declared
that if it ruled in a given case that a legislative or administrative measure is contrary
to Community law, ‘the Member State is obliged . . . to rescind the measure in ques-
tion and make reparation for any unlawful consequences which may have ensued’.199 In
Brasserie du Pecheur,200 the Court indicated its approach to remedies due to applicants
whose rights under Community law have been violated. The Court relied on its case
law on non-contractual liability of the Community because it found that the liability of
member states should not differ from that of the Community in like circumstances. The
Court applied the principle that
[r]‌eparation for loss or damage caused to individuals as a result of breaches of Community law
must be commensurate with the loss or damage sustained so as to ensure the effective protection
for their rights. In the absence of relevant Community provisions, it is for the domestic legal sys-
tem of each Member State to set the criteria for determining the extent of reparation. However,
those criteria must not be less favourable than those applying to similar claims based on domestic
law and must not be such as in practice to make it impossible or excessively difficult to obtain
reparation.201
The jurisprudence of the ECJ is helpful in emphasizing the underlying purpose of afford-
ing a remedy to those who are injured by breaches of the law. Its concern with both the com-
pensatory and deterrent effects of remedies offers a useful approach that could be applied
by other international tribunals seeking to uphold the rule of law as well as provide justice
to victims.

6.3.4 The Inter-American System
The Inter-American system for the protection of human rights has a dual institutional struc-
ture, one has evolved from the Charter of the Organization of American States (1948)
and the other was created by the entry into force of the American Convention on Human
Rights (1969). Two independent organs safeguard implementation of the American
Convention: the Inter-American Commission on Human Rights (IACHR or Commission)
and the Inter-American Court of Human Rights. In a reverse of the original European
system, the OAS inter-state complaint mechanism is optional and the individual petition

197
  Ibid, at para. 51.
198
  UPA, supra n. 188 (finding the requirement of ‘individual concern’ for standing to be required
by the EC Treaty).
199
  Case 6/60, Humblet v. Belgium, [1960] ECR 559.
200
  Brasserie du Pecheur [1996] ECR I-1029.    201  Ibid, paras. 82–3.
 The Functions and Competence of Human Rights Tribunals 225

procedure is not. All states ratifying the Convention accept the right of ‘any person or group
of persons, or any non-governmental entity legally recognized in one or more member states
of the Organization’202 to present petitions to the IACHR. In addition, the Commission has
jurisdiction over petitions filed by victims of human rights violations committed by OAS
member states that have not ratified the Convention; the applicable human rights standards
in such instances are those of the American Declaration.203 Admissibility requirements for
petitions are similar to those of the European Convention.
The Commission examines the petition and determines the facts. If a settlement is
not reached, the Commission prepares a report and, if it finds a violation, makes recom-
mendations to the state. The recommendations can specify remedies. Upon completion
of procedures before the Commission, either the Commission or the state concerned
can submit the case to the Court, if the state has accepted the Court’s jurisdiction. The
Court’s judgment is binding, but there is no analogue to the European Committee of
Ministers to oversee enforcement. The Court itself keeps the case open until compliance
with the judgment is achieved.
The system increasingly emphasizes the desire to reach a friendly settlement in cases.
Remedies in settled matters include compensation and some reference to non-pecuniary
or ‘symbolic’ redress.204 Common non-pecuniary measures include a public acknowl-
edgement of the agreement at official ceremonies;205 publication of the settlement in local
media,206 an official apology by state officials,207 or other public acts designed ‘to restore
the victims’ reputation and honour’.208 Many settlements involve the state acknowledg-
ing the violation,209 but not all.210 The majority of settlements have included a pledge
‘to bring civil and criminal proceedings and pursue administrative sanctions against
those persons who are alleged to have participated in the violation . . . ’211 In exchange
for the reparations measures agreed upon by the state, petitioners as a rule relinquish
their claims, agreeing ‘to desist from the petition . . . filed with the Inter-American
Commission’ and to recognize that the basic claims have been resolved212 without

202
  American Convention on Human Rights, supra n.1, Art. 44.
203
  The OAS created the Inter-American Commission in 1959, giving it a mandate to further respect
for human rights among the OAS member states, hence its broad jurisdiction.
204
  Carabantes Galleguillos Case, Inter-Am. Comm’n H.R., Report No. 33/02, para. 13, 14. The state
agreed to ‘symbolic measures to restore the good name and dignity of the victims’.
205
  Contreras San Martin Case, Inter-Am.Comm’n H.R., Report No. 32/02, at para. 17; Carrillo
Saldana Case, at para. 13.
206
  Livia Robles Case, Report 75/02, case 12.035 (Peru) at para. 13, Inter-Am.Comm’n H.R., Annual
Report, OAS Doc. OEA/Ser.L/V/II/117 doc. 1, rev. 1 (2003). See also Case 11.307 (Merciadri de
Morini v. Argentina) (Friendly Settlement), 2001 Inter-Am.Comm’n H.R., Annual Report, OAS Doc.
OEA/Ser.L/V/II.114, doc. 5 rev. at para. 14. In Merciadri de Morini, the state decreed amendments to
national electoral legislation that reflected the state’s decision in the petition before the Commission.
207
  Contreras San Martin Case, supra n. 205, paras. 14, 22–3.
208
  Carabantes Galleguillos Case, supra n. 204 at paras. 12, 14; Contreras San Martin Case, supra n. 205
at para. 14.
209
  Case 11.542 (Vega Jimenez v. Ecuador) (2001) Inter-Am.Comm’n H.R. 7, OEA/ser.L/V/II.114,
doc. 5 rev.; Case 11.441 (Munoz Arcos et al. v. Ecuador) (2001) Inter-Am.Comm’n H.R. 7, OEA/
ser.L/V/II.114, doc. 5 rev.; Case 11.443 (Ayora Rodriguez v. Ecuador) (2001) Inter-Am.Comm’n H.R. 7,
OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.450 (Almeida Calispa v. Ecuador) (2001) Inter-Am.Comm’n
H.R. 8, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.574 (Manzano v. Ecuador) (2001) Inter-Am.Comm’n
H.R. 8, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.632 (Segura Hurtado v. Ecuador) (2001) Inter-Am.
Comm’n H.R. 9, OEA/ser.L/V/II.114, doc. 5 rev.; Case 12.007 (Andrade Benitez v. Ecuador) (2001)
Inter-Am.Comm’n H.R. 9, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.779 (Reascos v. Ecuador) (2001)
Inter-Am.Comm’n H.R. 10, OEA/ser.L/V/II.111, doc. 20 rev.
210
  Sucunu Panjoj Case, para. 15. 211
  Vega Jimenez Case, supra n. 209, para. 7.
212
 Case 11.307 (Merciadri de Morini v.  Argentina (Friendly Settlement)) (2001) Inter-Am.
Comm’n H.R. Annual Report, Report No. 103/01, OEA/ser.L/V/II.114, doc. 5 rev., para. 114; Vega
Jimenez Case, supra n. 209, para. 7; Munoz Arcos et al. Case, supra n. 209, para. 7; Ayora Rodriguez Case,
226 The Institutional Framework

prejudice to any domestic civil or criminal remedies still available. The Commission’s
role is to ensure that the agreement is compatible with the American Convention and
that the state fulfils its commitments.213
In admissible cases where no settlement is reached, the Commission proceeds to con-
sider the merits of the case, on rare occasions conducting a hearing or making a country
visit. While on-site investigations are conducted more frequently in the Inter-American
system than by other human rights bodies, they are rarely undertaken solely to inves-
tigate a single or individual case. Instead, they are utilized to investigate allegations of
widespread human rights violations within the target country, as part of which indi-
vidual cases may be examined.
The Commission sometimes makes detailed comments on reparations and routinely
reports on the measures states have taken in response to the recommendations in its mer-
its reports.214 The Commission normally recommends that a state found to have violated
human rights pay monetary compensation to the victim or, in the case of death or disap-
pearance, to the family members of the victims. The Commission has stated that when
such a recommendation is made, the duty to provide compensation becomes an inter-
national legal obligation that may not be limited by national law.215 In addition to or as
an alternative to compensation, the Commission has recommended reform of a military
court system,216 investigation, prosecution and punishment of violators,217 adoption or
modification of legislation,218 and guarantees for the safety of witnesses.219 The Court has
said that ‘the Commission may recommend to a state the derogation or amendment of
a conflicting norm that has come to its attention by any means whatsoever, whether or
not that norm has been applied to a concrete case’.220
In setting forth the nature and scope of required remedies, the Commission often
has applied the law of other human rights bodies, such as the criteria established in the
‘principles governing the effective prevention and investigation of extralegal, arbitrary
or summary executions’.221 The principles provide that the investigation of such cases
must aim to determine the cause, manner and time of death, the person responsible and
the procedure or practice which might have led to the events.222 Another UN Manual

supra n. 209, para. 7; Almeida Calispa Case, supra n. 209, para. 8; Manzano Case, supra n. 209, para. 8;
Segura Hurtado Case, supra n. 209, para. 9; Andrade Benitez Case, supra n. 209, para. 9; Reascos Case,
supra n. 209, para. 10.
213
  Vega Jimenez Case, supra n. 209, para. 7.
214
 See e.g. Report No. 4/98, Case 9853, Ceferino ul Musicue and Leonel Coicue v.  Colombia,
Inter-Am.Comm’n H.R., Annual Report 1998, OAS/Ser.L/V/II.91 doc. 7, rev. 3 (1996), paras. 68–70.
215
  Report No. 26/97, Case 11.142, Colombia, Inter-Am.Comm’n H.R., Annual Report 1997, 478,
OEA/Ser.L/V/II.98, doc. 7 rev. (1998).
216
 Ibid.
217
  Ibid. See also Report 3/98, Case 11.221 Tarcisio Medina Charry v. Colombia, Annual Report supra
n. 215, 482, 508.
218
 Ibid, 509. 219
  Report 26/97, supra n. 215.
220
  Inter-American Court of Human Rights, Advisory Opinion OC-14/94 (9 Dec. 1994), 1994 II
Inter-Am. Y.B.H.R. 1510, para. 39.
221
  The principles were adopted by the United Nations Economic and Social Council in Resolution
1989/65, in order to determine whether or not a state has fulfilled its obligation to investigate immediately,
exhaustively, and impartially the summary executions of persons under its exclusive control. See Report
No. 10/95, Case 10.580, Ecuador, Inter-Am.Comm’n H.R., Annual Report 1995, OAS/Ser.L/V/II.91,
doc. 7, rev. 3 (1996), paras. 32–4; Report 55/97, Case 11.137, Juan Carlos Abella v. Argentina, Inter-Am.
Comm’n H.R., Annual Report 1998, OEA/Ser.L/V/II.98, doc. 7 rev. (1998), para. 413; Report No.
48/97, Case 11.411, Mexico, Inter-Am.Comm’n H.R., Annual Report 1998 at 637, 659.
222
  The United Nations principles have been complemented by a Manual on the Effective Prevention
and Investigation of Extralegal, Arbitrary or Summary Executions, UN Doc. ST/CSDHA/12.
 The Functions and Competence of Human Rights Tribunals 227

establishes procedures for gathering evidence,223 which the Commission applies to test
whether or not the government has fulfilled its duty to investigate suspicious deaths.
Failure to comply with these requirements seems to establish a prima facie case that the
state has violated its obligations under the Convention, exacerbated when the state’s own
criminal procedures are not followed.224
If the Commission finds a state liable for any serious human rights violation such as
extrajudicial execution, forced disappearance, torture or inhumane treatment, it consist-
ently urges a ‘prompt, impartial and effective’ investigation with a view to identifying
the responsible parties and bringing them to justice. It has denounced amnesties for such
violations225 and recommended the investigation and punishment of persons and authori-
ties that impede proper state investigations or judicial proceedings.226
After the Commission decides the merits of a petition, either the state or the Commission
can refer the case to the Inter-American Court of Human Rights, if the state involved is a
party to the Convention and has expressly recognized the Court’s jurisdiction, as most states
parties have done. Under current rules there is a presumption that all cases should go to the
Court if the Commission has found one or more violations and the responsible state has not
complied with the Commission’s recommendations within the time period specified by the
Commission. A reasoned decision by an absolute majority of the Commission is required to
withhold such a case from the Court. The Commission considers the views of the petitioner;
the nature and seriousness of the violation; the need to develop or clarify case law; the future
effect of the decision on member states and the quality of the evidence.
The American Convention does not give individuals standing to bring a case before
the Court but once a case is filed, the victims can appear separately with their own

223
  The standards require that:
(A) the area surrounding the corpse must be secured. Access to the area must be permitted only
to investigators and their staff
(B) colour photographs of the victim must be taken, since, in comparison with black and white
photos, colour photographs may reveal in greater detail the nature and circumstances of the
death of the victim
(C) both the interior and exterior of the place must be photographed, as well as any physical
evidence
(D) a record must be made of the position of the corpse and of the condition of the clothing
(E) a note should be taken of the following factors which serve to determine the time of death
(i) temperature of the body (warm, cool, cold)
(ii) position of corpse and degree of discolouration
(iii) rigidity of corpse, and
(iv) state of decomposition
(J) All evidence of the existence of weapons, such as firearms, projectiles, bullets and shells or
cartridges, must be collected and preserved. Where appropriate, efforts must be made to find
the residue from shots fired and/or to detect metal fragments.
224
  In the Abella case, supra n. 221, 373–4, the Commission found that the minimum require-
ments for conducting investigations were expressly provided for in the Argentinean Code of Criminal
Procedure and were not followed in the case.
225
  Case 11.771 (Catalan Lincoleo v.  Chile) (2001) Inter-Am.Comm’n H.R. 96, OEA/ser.L/V/
II.111, doc. 20 rev.; Case 10.247 (Extrajudicial Executions and Forced Disappearances) (2001) Inter-Am.
Comm’n H.R. OEA/Ser./L/V/II.114 doc. 5 rev.; Case 10.488 (Ellacuria, S.J., et al. v. El Salvador)
(1999) Inter-Am.Comm’n H.R. 241, OEA/ser.L/V/II.106, doc. 6 rev.; Inter-Am.Comm’n H.R.,
Report 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, 10.375, 1992–3,
Annual Report of the Inter-Am.Comm’n H.R., OEA/Ser.L/II.83, doc. 14, corr. 1, 12 Mar. 1993,
pp. 154–165; Inter-Am.Comm’n H.R., Report 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309
and 10.311, Argentina, 1992–3 Annual Report, Inter-Am.Comm’n H.R., 1992–3, OEA/Ser.L/II.83,
doc. 14, corr.1, 12 Mar. 1993, pp. 41–51.
226
  Case 11.286 (Aluisio Cavalcanti, et al. v. Brazil) (2001) Inter-Am.Comm’n H.R. 168, OEA/
ser.L/V/II.111, doc. 20 rev.
228 The Institutional Framework

representatives. The Commission’s role has been likened by the Court to that of a
‘Ministerio Publico’, akin to a public prosecutor.227
The American Convention on Human Rights gives the Inter-American Court broad
jurisdiction to decide on remedies:
If the Court finds that there has been a violation of a right or freedom protected by this Convention,
the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that
was violated. It shall also rule, if appropriate, that the consequences of the measure or situation
that constituted the breach of such right or freedom be remedied and that fair compensation be
paid to the injured party.228
The plain language of Article 63 indicates the Court’s power to order remedies other
than compensation. The drafting history of the American Convention reveals no debate
about conferring broad competence on the Court.229 The early drafts generally repli-
cated the language of Article 50 of the European Convention on Human Rights,230 but
some states sought to strengthen the article.231 The drafting Committee largely accepted
these proposals and the Plenary adopted the Committee version of Article 63(1) with-
out discussion, giving the Court the three powers it currently enjoys to order measures
that: (1) ensure that the victim enjoys future respect for the right or freedom that was vio-
lated; (2) remedy the consequences of the violation; and (3) compensate for the harm.
The Court has adopted standard language on the duty of states to afford reparations
and on its own powers, as follows:
199. Based on the provisions of Article 63(1) of the American Convention, the Court has held
that any violation of an international obligation that has caused damage creates a duty to make
adequate reparation232 and that this provision, based on a general concept of law, constitutes one
of the fundamental principles of contemporary international law on State responsibility.233
200. Reparation of the damage caused by a violation of an international obligation requires, wher-
ever possible, full restitution (restitutio in integrum), which implies restoring the previous situa-
tion. If this is not feasible, as in most cases involving human rights violations, the Court will decide
on measures to guarantee the infringed rights and to repair the consequences of the violations.234
Accordingly, the Court has considered the need to grant various measures of reparation, so as to
provide full redress for the damage caused; therefore, in addition to pecuniary compensation,

227
  Matter of Viviana Gallardo, Decision of 13 Nov. 1981, Inter-Am.Ct.H.R. No. G 101/81, para.
22, reprinted in (1981) 20 ILM 1424, 1428. See D. Shelton, ‘The Participation of Nongovernmental
Organizations in International Judicial Proceedings’ (1994) 88 Am. J. Int’l L. 622, 625.
228
  American Convention on Human Rights, supra n. 1, Art. 63(1).
229
  Draft Art. 52(1) contained the language of the last part of present Art. 63(1), allowing the Court to
order that fair compensation be paid: T. Buergenthal and R. Norris, Human Rights: The Inter-American
System (looseleaf publication from 1982), ii, bk. 13, p. 20. For a discussion of the travaux préparatoires of
the American Convention see, e.g., Inter-American Court of Human Rights, Baena-Ricardo v. Panama
(Competence), (2003) Series C No. 104, para. 89; Jo M. Pasqualucci, The Practice and Procedure of the
Inter-American Court of Human Rights (Cambridge, 2003), 233–235.
230
  OAS, Inter-American Council of Jurists, Fourth Meeting, Santiago, Chile, Aug.–Sept. 1959,
OAS Doc. 128, Rev. (1959), reprinted in Buergenthal and Norris, supra n. 229, iii, bk. 16(1) at 26,
57, 86.
231
 Ibid 132.
232
  Inter-American Court of Human Rights, Case of Velásquez Rodríguez v. Honduras (Reparations
and Costs) Judgment of 21 July 1989. Series C No. 7, para. 25, and Case of Suárez Peralta v. Ecuador,
Judgment of 21 May 2013, Series C No. 261, para. 161.
233
  Case of Velásquez Rodríguez v. Honduras (Reparations and Costs), supra n. 232, para. 25, and Case
of Suárez Peralta v. Ecuador, supra n. 232, para. 161.
234
  Case of Velásquez Rodríguez v. Honduras (Reparations and Costs) supra n. 232, para. 26, and Case
Mendoza et al. v. Argentina, Judgment of 14 May 2013, Series C No. 260, para. 307.
 The Functions and Competence of Human Rights Tribunals 229
measures of restitution, satisfaction and guarantees of non-repetition are of special relevance given
the damage caused.235
201. This Court has established that reparations must have a causal link with the facts of the case,
the violations declared, the damages verified and the measures requested to repair the respective
damages. Therefore, the Court shall adhere to that concurrence in order to rule appropriately and
according to law.236
Reparation requires, where possible, restitution. If it is not possible, the Court will
‘order a series of measures that will safeguard the violated rights, redress the consequences
that the violations engendered, and order payment of compensation for the damages
caused’.237 Reparations should aim to erase the effects of the violations committed, not
to enrich or impoverish the victims or his heirs. Their nature and amount depend on the
damage caused, and must be proportionate to the violations. In the Blake Case, among
others, the Court cautioned litigants not to rely too heavily on prior cases, expressing
its opinion that earlier jurisprudence cannot be invoked as an absolute criterion, as each
case must be examined individually.
Like the former practice of the European Court, the Inter-American Court in the past
often reserved the issue of reparations for a second phase, after its judgment on the merits of
a case.238 Memorials are sought from the Commission, the state, and the victims and public
hearings usually are held. The judgment is final, but may be subject to a request for interpre-
tation. The Inter-American system has no organ equivalent to the European Committee of
Ministers to oversee compliance with the judgment, and thus the Court holds cases open
until the state complies with the remedial measures directed by the Court.239
The Court has made broad use of its jurisdiction. It has awarded pecuniary and
non-pecuniary damages, granting both monetary and non-monetary remedies. Unlike the
usual practice of the European Court, the Inter-American Court has ordered a state to take
specific action to remedy a breach of the Convention. Where legislation is incompatible with
the Convention, the Court originally held it need not make a specific order, because once
it declares the law is incompatible with the Convention the state is obliged to bring the law
into conformity. More recent awards have expressly called upon states to change impugned
laws. The Court has been innovative in controlling all aspects of the awards, including set-
ting up trust funds, and determining the apportionment of moneys given heirs and other
beneficiaries. Attorneys’ fees and costs are now awarded, at least in part.
The Court has been receptive to specific claims for reparations that fulfil the aim
of restoring the petitioner as fully as possible to a pre-injury status. In Suarez Rosero
v. Ecuador (Reparations),240 the petitioner expressed concern over a fine that had been

235
 Inter-American Court of Human Rights, Supreme Court of Justice (Quintana Coello et  al.)
v. Ecuador (2013) Series C No. 266, citing Case of Velásquez Rodríguez v. Honduras, supra n. 232 para.
25, and Case Mendoza et al. v. Argentina, supra n. 234, para. 307.
236
  Case of Ticona Estrada v. Bolivia (Merits, Reparations and Costs) Judgment of 27 November
2008. Series C No. 191, para. 110, and Case Mendoza et al. v. Argentina, supra n. 234, para. 306.
237
  Ibid, para. 41.
238
 The few early exceptions are Inter American Court of Human Rights, Gangaram Panday
v. Suriname (1994) Series C No. 16, Genie Lacayo v. Nicaragua (1997) Series C No. 30, Baena Ricardo
(2001) Series C No. 72 and Last Temptation (Olmedo Bustos et al.) v. Chile (2001) Series C No. 73.
239
  For the Court’s assessment of its supervisory competence, see Inter-American Court of Human
Rights, Baena-Ricardo v. Panama (2003) Series C No. 104. During the supervisory process, the Court
will address any issues over how the measures of redress should be implemented.
240
  Suárez Rosero v. Ecuador, was the first contentious case in which the victim testified to the Court.
The Court found that the government had illegally arrested the petitioner, that he had been held for
an unreasonable time period, that he had been denied access to the courts, and that his rights to the
presumption of innocence and to prepare a defence were violated. It additionally found that he had
been subjected to cruel, inhuman and degrading treatment by reason of being held incommunicado and
230 The Institutional Framework

imposed upon him in the domestic proceedings. The Court agreed that because the
process against the applicant was itself a violation of the Convention, the state must not
execute the judgment imposing the fine and should expunge the record.
In Loayza Tamayo v. Peru (Reparations), the Court accepted the applicant’s argument
for a new category of damages, in addition to dano emergente and lucrum cessans. The
judgment recognized that human rights victims suffer interference with their ‘proyecto
de vida’, a concept similar to but broader than enjoyment of life. Linked to the notion
of individual self-determination, it allows a damage claim for interference with the vic-
tim’s fulfilment founded upon personal capabilities and goals.241 Individual opinions
of judges expressed their agreement that human rights law requires reparations that
take into account the totality of the human person and the impact of a human rights
violation, departing from a material perspective and looking at all potentialities and
capacities. For the judges, non-monetary reparations are therefore more important than
compensation.242
Most judges on the Court see their role as extending beyond providing redress for
the victims in a case.243 Like the European Court, the Inter-American Court looks to the
larger issue of the international rule of law. As a result, some of the Court’s decisions are
specific and far-reaching, such as a direction to a government to seek the extradition of
a high government official responsible for violations,244 and to commemorate or honour
the memory of law enforcement officers who were killed in retaliation for investigating
violations.245 The Court has often insisted on the duty to prosecute and punish perpetra-
tors, despite problems of compliance.246
Judgments are usually comprehensive and seek restitution of the right that has been
violated, compensation, satisfaction, rehabilitation of the victims, and measures of
non-repetition. The judgment itself is held to constitute a form of reparation, but com-
pensation is the most frequent form of reparation in the Court’s case law and, in turn,
has the highest rate of prompt compliance.
The Inter-American Court has developed extensive doctrine on the scope of pecuni-
ary and non-pecuniary damage. Pecuniary damage recognized by the Inter-American
Court includes consequential damage, loss of earnings or profit, and damage to per-
sonal wealth. Compensation has been seen as the natural means of reparation for this
kind of harm. Non-pecuniary damage includes the suffering and hardship caused to the
victims, harm to objects of value or great significance, psychological and moral injury,
and detrimental changes in the living conditions of the victims. The amount of the
compensation is set in relation to the facts that constitute the violation. Article 63(1)
of the American Convention refers to ‘fair compensation’ and the Court has reiterated

because of the conditions in the jail: Suarez Rosero v. Ecuador (Reparations), Judgment of 20 Jan. 1999,
Series C No. 44.
241
 As discussed infra in Chapter  9, the Court placed no monetary value on the claim in the
Loayza case.
242
  Inter-American Court of Human Rights, Loayza Tamayo v. Peru (Reparations) (1998) Series C
No. 42, Separate Opinion of Judges Antonio Cancado Trindade and Y.A. Abreu Burelli, paras. 10–11.
243
  For a perceptive critique of the Court’s approach to reparations, see Gerald L. Neuman, ‘Import,
Export, and Regional Consent in the Inter-American Court of Human Rights’, (2008) 19 EJIL
101–123.
244
  Inter-American Court of Human Rights, Goiburu (2006) Series C No. 153, 130-132; La Cantuta
(2006) Series C No. 162, para. 227.
245
  Inter-American Court of Human Rights, Moiwana Village (2005) Series C No. 124, 216; Carpio
Nicolle (2004) Series C No. 117, para. 137; and Myrna Mack Chang (2003) Series C No. 101, para. 279.
246
  Cesar (2005) Series C No. 123, (sep. Opinion of Ventura Robles, para. 19).
 The Functions and Competence of Human Rights Tribunals 231

that the compensatory character of monetary awards, the nature and amount of which
depend on the harm caused, means that they must neither enrich nor impoverish the
victims or their heirs. The Court thus takes into account the compensation awarded at
the domestic level.247
The Court may order measures of satisfaction and guarantees of non-repetition of a
non-pecuniary nature for moral injury, such as amendment of domestic legislation or
improvement of prison conditions to meet international standards; such measures may
have national public impact248 and be deemed adequate in lieu of monetary awards. For
the most serious violations the Court will often include collective measures of redress.
In Plan de Sánchez v. Guatemala,249 the Court awarded collective measures of redress for
the survivors and next of kin of a massacre. The Court required the state to investigate,
prosecute and punish the responsible parties; publicly accept responsibility for the viola-
tions; establish a village housing program; provide medical and psychological treatment
for all survivors; implement educational and cultural programs; and translate the judg-
ment into the Mayan language.250
States frequently issue an apology, motu propio, to victims during the Court’s public
hearings, after accepting responsibility for the violations at issue.251 Scholars have com-
mented that many victims particularly want an apology from the wrongdoer252 and
that compensation is often ‘much less important than emotional or symbolic repara-
tion’.253 Acknowledgement of the wrong, with an apology, helps address the individual’s
need for ‘dignity, emotional relief, participation in the social polity, or institutional
reordering’.254 In contrast, a mere declaratory judgment ‘conveys little more to the public
than who won the case’.255
In the absence of an acknowledgement or apology, the Court initially refused to
order the state to acknowledge the violations,256 but began doing so in 2001 in the
Cantoral-Benavides case.257 The formulation of this order has evolved as it has become
a commonly required measure, often requiring an elaborate public ceremony with the
participation of high-level government authorities.258 The Court also routinely orders
publication of at least part of the judgment in national newspapers, and on official

247
  Ibid, para. 474.
248
  The Last Temptation of Christ (Olmedo Bustos et al.) v. Chile, supra n. 238.
249
  See Inter-American Court of Human Rights, Plan de Sánchez Massacre v. Guatemala (2004) Series
C No. 105, para. 1 (29 April 2004).
250
  See Inter-American Court of Human Rights, Plan de Sánchez Massacre v. Guatemala (2004) Series
C No. 116, paras. 93-111 (19 Nov. 2004). The Court also granted costs for legal representation.
251
 See Inter-American Court of Human Rights, Molina-Theissen v.  Guatemala, (2004) Series
C No. 108, para. 71; Plan de Sánchez Massacre v. Guatemala, (2004) Series C No. 105, para. 9 (separate
opinion of Judge García-Ramírez).
252
  See Brent T.  White, ‘Say You’re Sorry:  Court-Ordered Apologies as a Civil Rights Remedy’,
(2006) 91 Cornell L. Rev. 1261, 1271–1272.
253
  See ibid,1273 (citing John Braithwaite, A Future Where Punishment Is Marginalized: Realistic or
Utopian? (1999) 46 UCLA L. Rev. 1727, 1744).
254
  See E. Yamamoto, Interracial Justice: Conflict and Reconciliation in Post-Civil Rights America 156
(NYU Press, 1999).
255
  See White, supra n. 252, 1283–1284.
256
 See, e.g., Inter-American Court of Human Rights, Suárez-Rosero v.  Ecuador (1999) Series
C No. 44. See also Pasqualucci, supra n. 229, 253–254.
257
  Inter-American Court of Human Rights, Cantoral-Benavides v. Peru (2001) Series C No. 88,
para. 81.
258
  See Inter-American Court of Human Rights, Mack Chang v. Guatemala (2003) Series C No. 101,
para. 278; Moiwana Cmty v. Suriname (2005) Series C No. 124, para. 216.
232 The Institutional Framework

websites or radio.259 If the victims could face persecution or other dangers260 the Court
may order that their names be withheld.261
In late 2014, the Court enunciated a new doctrine, indicating that even though inter-
national law establishes the individual right to full reparation, in situations of transitional
justice in which states must afford reparation to numerous victims of violations beyond the
capacities of domestic courts to handle, administrative reparation programs are a legitimate
way to comply with the obligation of reparation.262 It added that, in these circumstances,
such measures of reparation must be understood in conjunction with other measures of
truth and justice, provided that a series of requirements are met relating, among other
issues, to their legitimacy based on the consultation with and participation of the victims;
their adoption in good faith; the level of social inclusion they permit; the reasonableness
and proportionality of the pecuniary measures; the type of reasons given to make repara-
tions by family group and not individually; the distribution criteria among members of a
family (order of succession or percentages); parameters for a fair distribution that take into
account the position of women among the members of the family, and other differentiated
factors such as whether collective ownership of land or other means of production exist.263
This retreat from the principle of full reparations appears to represent the Court’s
acceptance of the developing theory and practice of transitional justice, but may also
be an acknowledgment of the difficulties it has faced in obtaining compliance with its
judgments thus far.264

6.3.5 The African System

The African Charter on Human and Peoples’ Rights, which entered into force on
21 October 1986,265 obliges states parties to recognize the rights, duties, and freedoms
contained in the Charter and to adopt legislative or other measures to give effect to them.
States are to report biennially on these measures. In addition, states parties have a duty
to promote and ensure respect for the rights, through teaching, education and publica-
tion. The Charter provides for an eleven member independent African Commission on

259
  Inter-American Court of Human Rights, Yatama v. Nicaragua (2005) Series C No. 127, paras.
252-53. Radio broadcast of the judgment may be ordered in the relevant indigenous language through-
out the region where the petitioners live. See also Serrano-Cruz Sisters v. El Salvador (2005) Series C No.
para. 195.
260
  See Marcie Mersky & Naomi Roht-Arriaza, ‘Guatemala’, in Katya Salazar & Thomas Antkowiak,
(eds.) Victims Unsilenced: The Inter-American Human Rights System and Transitional Justice in Latin
America (Washington, 2007) 7, 19–21.
261
  Inter-American Court of Human Rights, Children’s Rehabilitation Institute v. Paraguay, (2006)
paras. 2–4 (Compliance with Judgment), available at http://www.corteidh.or.cr/docs/supervisiones/
instituto_04_07_06_%20ing.pdf.
262
  On the Colombian reparations program, see further the March 2014 hearing of the IACHR,
discussing the implementation of Law 906/2004.
263
  Inter-American Court of Human Rights, Case of the Afrodescendant Communities displaced from
the Cacarica River Basin (Operation Genesis) v. Colombia (2013) Series C No. 270, para. 470.
264
  See further Chapter 15. In contrast to the Inter-American Court’s approach, see the European
Court judgment in Jelic v. Croatia, 2014 Reports, holding that while allowance may be made for the
difficulties which confront states emerging from conflict in creating effective and independent mecha-
nisms to deal with numerous war-crimes cases, such difficulties cannot of themselves relieve authorities
of their procedural obligations under Article 2. The Court found that the applicant should have been
able to avail herself of effective and practical remedies capable of leading to the identification and pun-
ishment of those responsible and to an award of compensation, for the purposes of Article 13; it awarded
her 20,000 euros in non-pecuniary damages.
265
  African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force
21 Oct. 1986, OAU Doc. CAB/LEG/67/3 Rev. 5, reprinted in (1982) 21 ILM 58.
 The Functions and Competence of Human Rights Tribunals 233

Human and Peoples’ Rights whose functions are ‘to promote human and peoples’ rights
and ensure their protection in Africa’266 as well as monitor state compliance with the
provisions of the Charter. A protocol adopted on 8 June 1998 added an eleven member
African Court of Human Rights.267
The Charter confers broad four functions on the Commission268: the promotion of
human and peoples’ rights in Africa; the protection of those rights; interpretation of
the Charter; and the performance of other tasks that may be entrusted to it by the AU
Assembly of Heads of State and Government. The Commission may receive commu-
nications from individuals, non-governmental organizations or other entities who have
exhausted local remedies. It may investigate the merits of admissible claims and make
recommendations to the states concerned. In formulating and laying down principles
and rules aimed at solving legal problems relating to human rights,269 the Commission
is to draw inspiration from other international human rights instruments, customary
international law, and general principles of law recognized by African states.270 Beyond
these general guidelines, the authority of the Commission in regard to complaints is not
clear and nothing is said about remedies. Yet, the African Commission’s practice respect-
ing remedies has evolved considerably from being largely deferential to the governments
to issuing specific instructions.
The African Commission has described the primary purpose of its communica-
tions procedure as initiating a positive dialogue resulting ultimately in an amicable
resolution designed to remedy the prejudice suffered,271 the emphasis being placed
on non-confrontation and diplomacy. In early individual cases, the Commission has
issued declaratory statements on the responsibility of the state for the violations found
and demanded cessation of the breach,272 but often limited itself to declaratory judg-
ments even in instances of violations of the right to life273 or gross and systematic
violations.274

266
 Art. 30. 267
  The Protocol entered into force on 24 Jan. 2004.
268
  The former Secretary-General of the OAU claims that ‘it was left to the Commission to affirm
its role without complex or hesitation and to elaborate its jurisprudence and pronounce the law in
the absence of something better’: Edem Kodjo, ‘The African Charter on Human and Peoples’ Rights’
(1990) 11 Hum.Rts L.J. 271, 289. Others have argued that the Commission lacks a mandate to
address individual communications. See Rachel Murray, ‘Decisions by the African Commission on
Individual Communications Under the African Charter on Human and Peoples’ Rights’ (1998) 46 Int’l
& Comp.L.Q. 412, 413; Wolfgang Benedek, ‘The African Charter and Commission on Human and
Peoples’ Rights: How to Make it More Effective’ (1993) Neth.Q.Hum.Rts 25, 31.
269
  Art. 45(1)(b). 270
  Arts. 60, 61.
271
  See Communications 25/89, 47/90, 56/91, 100/93, World Organization Against Torture, Lawyers
Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Temoins de Jehovah v. Zaire
(Merits), adopted at the 19th Ordinary Session of the Commission, Ouagadougou, Burkina Faso, Mar.
1996, para. 39.
272
  See e.g. Comm. Nos. 48/90, 50/91, 52/91 and 89/93, Amnesty International, Comite Loosli Bachelard,
Lawyers Committee for Human Rights, and Association of Members of the Episcopal Conference of East Africa
v. Sudan, Thirteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights
1999–2000 (calling for an end to the violations in order for the state to abide by its obligations).
273
 64/92 Krischna Achutan (on behalf of Aleke Banda), 68/92 Amnesty International on behalf of Orton
and Vera Chirwa 78/92 Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, 8th Annual
Activity Report of the African Commission on Human and Peoples’ Rights 1994-1995, Annex VI;
25/89, 47/90, 56/91, 100/93 Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union
Interafricaine des Droits de l’Homme, Les Temoins de Jehovah v. Zaire, 9th Annual Activity Report of the
African Commission on Human and Peoples’ Rights 1995-1996, Annex VIII; 74/92 Commission Nationale
des Droits de l’Homme et des Libertes v. Chad, 9th Annual Activity Report of the African Commission on
Human and Peoples’ Rights 1995-1996, Annex VIII and 223/98 Forum of Conscience v. Sierra Leone, 14th
Annual Activity Report of the African Commission on Human and Peoples’ Rights 2000-2001, Annex V.
274
  In cases of serious or massive violations, the Commission sometimes merely referred such cases to the
Assembly, which in turn refrained from taking action. See in this regard, 47/90 Lawyers Committee for Human
234 The Institutional Framework

Still, the African Commission has indicated that states have a duty to provide repara-
tions once the Commission has determined that they have committed violations of the
African Charter275 usually by a declaration that the state is ‘responsible for the reparation’
of human rights abuses.276 It has directed states to ‘adopt measures in conformity with
this decision’,277 ‘take steps to repair the prejudice suffered’,278 or ‘take the necessary steps
to bring its law into conformity with the Charter’.279 Numerous cases suggest or require
restitution, including through the release of prisoners.280 More recently, the African
Commission has made specific recommendations in several cases that appear close to
injunctive orders, including restitution (demanding the release of persons wrongfully
detained),281 repeal of laws or decrees found to be in violation of the Charter282 and the
reinstatement of wrongfully dismissed workers.283 It has also acknowledged the neces-
sity of compensation in some cases, but has appeared reluctant to make compensatory
awards. In Huri-Laws v. Nigeria, the Commission limited relief to a declaration of the
violation, despite a request for compensation for the victims’ loss of income, which was
quantified, and compensation for the mental distress that they suffered; the return of any
equipment seized during the illegal search and seizure of their offices, and compensation
for equipment damaged or lost.284

Rights v. Zaire, 7th Annual Activity Report of the African Commission on Human and Peoples’ Rights
1993-1994, Annex IX; 64/92 Krischna Achutan (on behalf of Aleke Banda), 68/92 Amnesty International on
behalf of Orton and Vera Chirwa 78/92 Amnesty International on behalf of Orton and Vera Chirwa v. Malawi,
7th Annual Activity Report of the African Commission on Human and Peoples’ Rights 1993-1994, Annex
IX; 25/89, 47/90, 56/91, 100/93 (joined) Free Legal Assistance Group, Lawyers’ Committee for Human Rights,
Union Interafricaine des Droits de l’Homme, Les Temoins de Jehovah v. Zaire, 9th Annual Activity Report of
the African Commission on Human and Peoples’ Rights 1995-1996, Annex VIII.
275
  See generally Gino J. Naldi, ‘Reparations in the Practice of the African Commission on Human
and Peoples’ Rights’, 14 Leiden J. Int’l L. 681–93 (2001).
276
  Kirschna Achutan (on behalf of Aleke Banda) and Amnesty Int’l (on behalf of Orton and Vera Chirwa)
v. Malawi Comms. Nos. 64/92, 68/92, 78/92, 3 IHRR 134, para. 12 (1996).
277
  Organization Mondiale Contra La Torture and the Association Internationale des Juristes Democrates
and Others v. Rwanda.
278
  Alhassan Abubakar v. Ghana, Comm. No. 103/93, 6 IHRR 832 (1999).
279
  Media Rights Agenda and Constitutional Rights Project v.  Nigeria, (2000) AHRLR 262
(ACHPR 2000).
280
  See, e.g., Constitutional Rights Project v. Nigeria, Comm. No. 60/91, 3 IHRR 132, 133 (1996);
Comm. 87/93, 3 IHRR 137, 139 (1996); Comm. 153/96, 13th ann. activity rep. 1999-200. Annette
Pagnoulle—‘draw all the necessary legal conclusions to reinstate the victim in his rights’. Comm. 39/90,
6 IHRR 819, 822 (1999).
281
  Comm. 60/91, Constitutional Rights Project v. Nigeria (in respect of Wahab Akamu, G. Adega and
others), 8th Annual Report of the ACHPR 1994–1995, ACHPR/8TH/ACT/RPT/XVII, Annex IX.
See also Comm. No. 60/91, 3 IHRR 132, at 133 (1996); Comm. No. 87/93, 3 IHRR 137 at 139
(1996); Comm. No. 153/96, Thirteenth Annual Activity Report; Comm. 148/96, ibid, Comm. No.
192/93, 7 IHRR 259 (2000) and Comm. No. 39/90, (1999) 6 IHRR 819.
282
  In Comm. 101/93, Civil Liberties Organization in re the Nigerian Bar Association v. Nigeria, appli-
cants protested against the Legal Practitioners’ Decree which, inter alia, excluded recourse to the courts
and made it an offence ‘to commence or maintain an action or any legal proceeding whatever relating to
or connected with or arising from the exercise of any of the powers of the Body of Benchers’. The decree
was given retroactive effect. The Commission stated that the decree should therefore be annulled: 8th
Annual Report, ibid. See also International Pen, Constitutional Rights Project, Interights on behalf of Ken
Saro-Wiwa Jr and Civil Liberties Organisation v. Nigeria, Comm. 137/94, 139/94, (1997) 18 HRLJ 35.
283
  Malawi African Association, Amnesty International, Ms Sarr Diop, Union Interaftricaine des Droits
de l’Homme and RADDHO, Collective des Veuves et Ayant-droit, and Association Mauritanienne des Doits
de l’Homme v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164/97 and 210/98, Thirteenth Annual
Activity Report of the African Commission on Human and Peoples’ Rights 1999–2000.
284
  See also Amnesty International v. Zambia, Comm. No. 212/98 (1999), 12th Activity Report
1988-1989, Annex V, where the Commission noted that one of the complainants ‘was a prominent
businessman’ and ‘[h]‌is deportation must have caused prejudice to his business interests’, but failed to
explore compensation for losses which it accepted the complainant incurred as a result of the violation.
 The Functions and Competence of Human Rights Tribunals 235

In cases where the Commission has found serious or massive violations it has pro-
vided more extensive remedies.285 In Malawi African Association, Amnesty International,
Ms Sarr Diop, et al. v. Mauritania, the Commission offered its first detailed recommen-
dations following a finding of gross and systematic violations of the African Charter.
The measures set forth included for the government to set up an independent inquiry to
investigate disappearances; identify and prosecute the perpetrators; carry out an assess-
ment of degrading practices with a view to identifying deep-rooted causes for their per-
sistence and put in place a strategy aimed at their complete eradication; take appropriate
administrative measures for the effective enforcement of the domestic law on the aboli-
tion of slavery; and take diligent measures to replace the national identity documents
of Mauritanian citizens who had been expelled to ensure their return without delay,
restitute their belongings, and provide reparation for the deprivations. The Commission
also called for the reinstatement of the rights due to workers unduly dismissed or forcibly
retired. More recently, the African Commission has moved to adopt clearer and more
targeted decisions on remedies that mirror those indicated in other global and regional
systems: investigate, prosecute, and punish286 or compensate victims.
The Commission acknowledged the need for compensation in recent cases like
Kenneth Good v. Republic of Botswana.287 The Commission noted that adequate compen-
sation should include, but not be limited to, recovery of the salary and benefits the appli-
cant lost as a result of his expulsion, but also added that he should recover the legal costs
incurred both before the domestic courts and the Commission. In African Institute for
Human Rights and Development v. Guinea,288 the Commission recommended that a Joint
Commission be set up by the Sierra Leone and Guinea governments to assess the losses of
various refugee victims ‘with a view to compensate’ them. While the Commission has yet
to specify a quantum of compensation, this appears more linked to the pleadings than
to any lack of competence. In one case, the Commission appeared to presume that the
applicant was satisfied with measures taken by a new government to remedy violations
by the previous regime.289
One of the Commission’s most innovative decisions on remedies came in a case con-
cerning economic, social and cultural rights. In Social and Economic Rights Action Center
v. Nigeria,290 the African Commission found Nigeria to have violated the right to enjoy
Charter-guaranteed rights and freedoms without discrimination (Art. 2), the right to life
(Art. 4), the right to property (Art. 14), the right to health (Art. 16), the right to housing
(implied in the duty to protect the family, Art. 18(1)), the right to food (implicit in Arts. 4,
16, and 22), the right of peoples freely to dispose of their wealth and natural resources
(Art. 21), and the right of peoples to a ‘general satisfactory environment favourable to
their development’ (Art. 24). Most of the violations stemmed from actions taken by or

285
  ACHPR, art. 58(2). See e.g., Commn Nationale des Droits de l’Homme et des Libertes v. Chad (2000)
AHRLR 66; Free Legal Assistance Group and another v. Zaire (2000) AHRLR 74, both 1995 decisions.
286
  Comm. 204/97 Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso,
para. 50.
287
  Kenneth Good v. Botswana, Comm. 313/05 (20 July 2000), adopted at the 47th Ordinary Session
of the Commission, May 2010.
288
  African Institute for Human Rights and Development v. Guinea, Comm. 249/02, EX.CL/279 (IX
(Dec. 2004).
289
 See Comite Cultural Pour la Democratie au Benin, Hilaire Badjougoume, El Hadj Boubacar Diawara
v. Benin (Merits), adopted at the 16th Ordinary Session of the Commission, Oct. 1994, para. 38.
290
  Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center
for Economic and Social Rights v. Nigeria). Case No. ACHPR/COMM/A044/1 (Afr. Comm’n Hum. &
Peoples’ Rts, 27 May 2002) [hereinafter Decision] available at http://www.umn.edu/humanrts/africa/
comcases/allcases.html.
236 The Institutional Framework

involving the Nigerian National Petroleum Development Company (NNPC) in a con-

sortium with Shell Petroleum Development Corporation (SPDC).
The Commission first assessed the claimed violations of the rights to health (Art.
16) and to a general satisfactory environment (Art. 24). It found that the right to a
general satisfactory environment ‘imposes clear obligations upon a government’, requir-
ing the state ‘to take reasonable and other measures to prevent pollution and ecological
degradation, to promote conservation, and to secure an ecologically sustainable develop-
ment and use of natural resources’.291 Moreover,
[g]‌overnment compliance with the spirit of Articles 16 and 24 of the African Charter must also include
ordering or at least permitting independent scientific monitoring of threatened environments, requir-
ing and publicising environmental and social impact studies prior to any major industrial develop-
ment, undertaking appropriate monitoring and providing information to those communities exposed
to hazardous materials and activities and providing meaningful opportunities for individuals to be
heard and to participate in the development decisions affecting their communities.292
The Commission concluded that although Nigeria had the right to produce oil, it had
not protected the Article 16 and Article 24 rights of those in the Ogoni region. The
Commission also found that, taken together, the lack of involvement of the Ogoni peo-
ple, the destructive role played by oil development, the repressive tactics of the govern-
ment, and the lack of material benefits accruing to the local population ‘may well be said’
to constitute a violation of the Ogoni people’s Article 21 rights concerning the disposal
and use of wealth and natural resources.
The Commission emphasized that collective rights, environmental rights, and
economic and social rights are essential elements of human rights in Africa, that the
Commission intended to apply them, and that ‘there is no right in the African Charter
that cannot be made effective’.293 While governments may labour under difficult cir-
cumstances in trying to improve the lives of their peoples, they must reconsider their
relationships with multinational corporations if these relationships fail to be mindful of
the common good and of the rights of individuals and communities.
In terms of remedies, the Commission called on the Nigerian government:
• to stop all attacks on Ogoni communities
• to allow independent investigators free access to the territory to conduct an inves-
tigation into the human rights violations that occurred
• to prosecute those responsible for any such violations
• to ensure adequate compensation for victims of violations, including a comprehen-
sive cleanup of lands and rivers damaged by oil operations
• to ensure that appropriate environmental and social assessments are prepared for
future oil operations and that effective and independent oversight bodies exist for
the petroleum industry, and
• for communities likely to be affected by oil operations, to provide information
on health and environmental risks, and meaningful access to regulatory and
decision-making bodies.
In 2012, the Commission addressed the issue of redress for wrongful killings through
use of excessive force, failure of accountability, and lack of compensation for the death of

 Decision, supra n. 288, para. 52.   

291
  Ibid, para. 53.
292

  Ibid, para. 68.
293
 The Functions and Competence of Human Rights Tribunals 237

four persons.294 The state argued that under domestic law governing actions for wrong-
ful death, damages were limited to medical, hospital and funeral expenses, and excluded
moral damages. The complainant asserted, in contrast, ‘that the right to a remedy or
reparation in the event of a human rights violation is well-entrenched in international
law’.295 The African Commission concluded that the use of lethal force by the police was
unlawful and then commented that ‘Human rights 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’.296 The remedies must be full and effective,
including satisfactory compensation, covering any financially assessable damage, and
satisfaction that consists of an acknowledgment of the breach and a formal apology. The
state is also obliged to make diligent efforts to harmonize legislation with provisions of
the treaty. The final recommendations therefore included one to the state to undertake
law reform to bring domestic laws on compensation in case of wrongful killings into
conformity with the African Charter and other international standards, especially in
respect to effective and satisfactory compensation, as well as to pay compensatory dam-
ages to the legal heirs and next of kin of the four deceased persons.
The Commission’s judgments reveal a number of inconsistencies on remedies,
particularly with regards to different outcomes in analogous cases. In Civil Liberties
Organisation v. Nigeria, for example, the Commission found multiple violations
when civilians and military personnel had been tried in secret by a Special Military
Tribunal, precluding the jurisdiction of ordinary courts, and without due process. The
Commission appealed to the Nigerian government ‘to permit the accused persons a
civil re-trial with full access to lawyers of their choice; and improve their conditions of
detention’. In Centre For Free Speech v. Nigeria, the Commission recommended release
of the four journalists who had been tried and convicted by the same Special Military
Tribunals. In Marcel Wetsh’okonda Koso and others v. Democratic Republic of Congo, in
contrast, the Commission recommended only that the DRC guarantee the independ-
ence of tribunals, grant of fair and equitable compensation and harmonize domestic law
with the state’s international obligations.
The Protocol to the African Charter on Human and Peoples’ Rights on the
Establishment of an African Court on Human and Peoples’ Rights,297 which entered into
force on 25 January 2004, provides that either the Commission, a complainant state or
a respondent state may submit cases to the Court concerning the interpretation and the
application of the African Charter, the Protocol or ‘any other applicable African Human
Rights instrument’.298 States may declare that they accept the competence of the Court
to receive cases from individuals and non-governmental organizations with observer
status.299 Article 26(1), the remedies provision, states that ‘[i]‌f the Court finds that there
has been a violation of a human or people’s right, it shall make appropriate orders to
remedy the violation, including the payment of fair compensation or reparation’. This

294
  Comm. 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (rep-
resented by Zimbabwe Human Rights NGO Forum) v.  Zimbabwe, 51st Sess., AfCHPR, 18 April to
2 May 2012.
295
  Ibid, para. 60
296
  Ibid, para. 127, citing ICCPR General Comment 31, para. 16. The Commission also referred to
the Basic Principles and Guidelines on remedies.
297
  9 June 1998, OAU Doc. OAU/LEG/EXP/AFCHPRPR/PROT. (III) 1997.
298
  Ibid, Art. 3. 299
  Ibid, Art. 6.
238 The Institutional Framework

provision is broader than all the current mandates of international human rights bodies
to afford remedies to victims of human rights abuse.
In its first judgment on the merits,300 the African Court made limited use of its reme-
dial powers, after finding that Tanzania’s prohibition of independent candidates in elec-
tions for president, parliament, and local government violated the African Charter. It
called upon the government to take all constitutional, legal and other measures to rectify
the violations found. The order was open-ended, but the violations found suggested the
appropriate action must be taken ‘within a reasonable time’. Compensation for the long
and costly litigation was not awarded because it was not fully argued; the Court gave the
applicants leave to submit a request following the merits determination.301

6.4 Conclusions
The authority of international tribunals to afford remedies is increasingly accepted.
Judicial bodies have inherent power to remedy breaches of law in cases within their juris-
diction. In addition, some human rights treaties confer explicit competence to afford
redress on the organs they create to hear cases. The language conferring this authority
differs in the European, American and African treaties but the linguistic distinctions
alone cannot explain the different views of the courts on the scope of their powers.
Instead, the initial conservatism of the European Court, understandable in the context
of its ground-breaking role, has long solidified into an unsatisfactory jurisprudence. The
Court has recently moved towards use of restitution and other non-monetary remedies
that are likely to afford more complete redress for victims of human rights violations.
The new approach is consistent with the drafting history, which aimed to prevent the
court from becoming a tribunal of ‘fourth instance’ or an appellate court that could itself
annul a wrongful conviction or strike down legislation incompatible with treaty obliga-
tions. Nothing, however, precludes the court from ruling that such a remedy would be
the appropriate one in a given case and calling on the state to implement the decision in
its domestic law.
The Inter-American Court, while more generous to litigants, has suffered from
inconsistency, probably due to changes in the composition of the Court. In both the
Inter-American and the European courts, litigants bear considerable responsibility for
the state of the law. Until recently, the memorials and briefs filed paid little attention to
the issue of remedies. There is still room for improvement in all the regional systems.
UN treaty bodies are seemingly paying greater attention to remedies, as they should.
In most cases, it is not enough to declare that a right has been violated. States need guid-
ance and direction on the measures necessary to afford redress to those whose rights
have been violated and who have sought relief, often at considerable risk to themselves
and their families. The right to a remedy is well established, even a norm of customary
international law. Where states fail to provide the necessary remedies for human rights
violations, international institutions are the forum of last resort. Affording redress to
victims not only serves the interests of remedial justice, it may help reduce the climate
of impunity that exists in many regions and, thereby, induce greater compliance with
human rights norms.

300
  Tanganyka Law Society et al. v. United Republic of Tanzania, App. Nos. 009/2011, 011/2011
(Afr. Ct. H.P.R. 14 June 2013)
301
  Ibid, at paras. 55–56.
 PA RT  I I I
P RO C E D U R A L  I S S U E S
 7
Who May Claim Redress?

When human rights violations occur, the victim of the violation has the right to seek
redress through domestic proceedings and, eventually, may have access to an interna-
tional tribunal. The designation of a ‘victim’ is an international matter and, at a mini-
mum, includes the individual whose right or freedom has been violated. It is generally
not necessary that the victim be a national or resident of the defendant state. When the
victim is deceased or the injury has consequences for other persons, third parties also
may be characterized as direct or indirect victims of the violation.

7.1  Individual Victims

Access to justice is guaranteed for the determination of civil rights and obligations1
and for arguable claims by victims that the rights and freedoms set forth in applicable
treaties have been violated.2 Many human rights procedures limit standing to victims
of violations,3 but do not define the term. In the European system, only ‘victims’ of
violations of rights guaranteed by the European Convention and its Protocols may
file cases directly with the Court. This right extends to both natural and legal persons
whose rights have been violated, including companies, trade unions, and religious
bodies.4 Groups of individuals may file as well.5 The UN Disappearances Convention6
is one of the few treaties to include a provision describing ‘victims’, but it looks at the
issue as one of causality, extending the definition of victim to all those harmed as a
‘direct result’ of the disappearance, without reference to any relationship to the disap-
peared person.7
Declaratory instruments and jurisprudence elaborate the meaning of the terms ‘vic-
tims’ and ‘injured parties’. The United Nations Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power,8 adopted by the UN General Assembly in
1985, defines victims as ‘persons who, individually or collectively, have suffered harm,
including physical or mental injury, emotional suffering, economic loss or substantial

1
  ICCPR, Art. 14(1); European Convention Art. 6(1); American Convention, Art. 8(1) (determina-
tion of rights and obligations of a civil, labor, fiscal, or any other nature); Afr. Charter, Art. 7; Revised
Arab Charter, Art. 13.
2
  ICCPR, Art. 2(3); European Convention, Art. 13; American Convention, Art. 25 (including con-
stitutional rights and other rights established by law).
3
  E.g. European Convention, Art. 34; ICCPR Optional Protocol, Art. 1; CERD, Art. 14.
4
  See, e.g., European Court of Human Rights, The Sunday Times Case, 30 EHRR 5 (1979); Stran
Greek Refineries and Stratis Andreadis v. Greece (1994) 19 EHRR 293.
5
  See, e.g., European Court of Human Rights, Guerra & Others v. Italy, 26 EHRR 357.
6
  International Convention for the Protection of All Persons from Enforced Disappearance, GA  res.
61/177, UN Doc. A/RES/61/177 (2006) (entered into force 23 December 2010).
7
  Ibid, Art. 24(1).
8
  United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA
Res. 40/34, GAOR, 40th Sess., 96th plenary mtg, Annex, UN Doc. A/RES/40/34, ¶ 1 (1985).
242 Procedural Issues

impairment of their fundamental rights’.9 Similarly, the UN Basic Principles on the Right
to a Remedy define a victim as someone who:
individually or collectively, suffered harm, including physical or mental injury, emotional suffer-
ing, economic loss, or substantial impairment of their fundamental rights … 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 vic-
tims in distress or to prevent victimization.
A person shall be considered a victim regardless of whether the perpetrator of the vio-
lation is identified, apprehended, prosecuted, or convicted and regardless of the familial
relationship between the perpetrator and the victim.10
The ICC Rules of Procedure define victim in the absence of a definition in the Rome
Statute.11 The drafters adopted a broad definition, but one that leaves significant discre-
tion to the Court in making determinations of reparations. Specifically, Rule 85 provides:
(a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of
any crime within the jurisdiction of the Court
(b) Victims may include organizations or institutions that have sustained direct harm to any of their
property which is dedicated to religion, education, art or science or charitable purposes, and to
their historic monuments, hospitals and other places and objects for humanitarian purposes.12
Pre-Trial Chamber I applied this provision and outlined four criteria for determin-
ing the status of victim:13 (1) establishment of a claimant’s identity as a ‘natural person’;
(2) evidence that the person suffered some form of ‘harm’; (3) the crime committed must
fall within the jurisdiction of the Court; and (4) there must be a causal link between
the crime committed and the harm suffered.14 Chamber I accepted that the concept
of victims in Rule 85 could include not only individuals, but legal persons and groups
with collective claims.15 Awards of individual and collective reparations are not mutually
exclusive, and they may be awarded concurrently, including for victims not yet identi-
fied. The Chamber emphasized that individual reparations should be awarded in a way
that avoids creating tensions and divisions within the relevant communities.16
Among UN treaty bodies, the Committee against Torture17 has defined victims as
persons who have individually or collectively suffered harm, including physical or men-
tal injury, emotional suffering, economic loss or substantial impairment of their funda-
mental rights, through acts or omissions that constitute violations of the Convention
against Torture. It adds that a person should be considered a victim regardless of whether
the perpetrator of the violation is identified, apprehended, prosecuted or convicted, and
regardless of any familial or other relationship between the perpetrator and the victim.

9
 Ibid.
10
 UNGA, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Violations of International Human Rights and Humanitarian Law, A/RES/60/147 (2006), paras. 8–9.
11
  Report on the International Seminar on Victims’ Access to the International Criminal Court, UN Doc.
PCNICC/1999/WGRPE/INF/2, n. 1 (6 July 1999).
12
  25 2002 Rules of Procedure and Evidence, ICC-ASP/1/3, Rule 85.
13
  The Situation in the Democratic Republic of Congo, Decision on the application for participation
in the proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPRS6, ICC-01/04 –En-Corr.
Pre- T.Ch. I, 17 January 2006, § 9.
14
  Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeals of the Prosecutor and The Defence
against Trial Chamber I’s Decision on Victim Participation of 18 January 2008, ICC-01/04-01/06-1432,
A.Ch., 11 July 2008.
15
  Ibid, para. 217. 16
  Ibid, para. 220.
17
  Committee against Torture, ‘Implementation of Article 14 by States Parties’, General Comment
No. 3 (2012).
 Who May Claim Redress? 243

The term ‘victim’ also includes affected immediate family members or dependents of the
victim as well as persons who have suffered harm in intervening to assist victims or to
prevent victimization.18
In its jurisprudence, the Human Rights Committee has indicated that family mem-
bers may be considered victims of violations perpetrated against one of their relatives.
In the case of a disappearance, the Committee found that the mother of the disappeared
was a victim, stating:
The Committee understands the anguish and stress caused to the mother by the disappearance of
her daughter and by the continuing uncertainty concerning her fate and whereabouts. The mother
has a right to know what has happened to her daughter. In these respects, she too is a victim of the
violations of the Covenant suffered by her daughter, in particular Article 7.19
The Human Rights Committee has on several occasions demanded that compensa-
tion be paid to the family of a deceased victim of torture or disappearance, for the mis-
treatment inflicted on the victim prior to death.20 Cases have been brought by a brother,
wife, daughter, niece or grandchild. In all cases, the Committee has found that the close
family connection justified admissibility of the communication. Communications can-
not be submitted by organizations, nor are class actions nor actio popularis admissible.
The requirement that the petitioner be ‘a victim of a violation’ has been interpreted
by the European Court to mean that ‘an individual applicant should claim to have been
actually affected by the violation he alleges’.21 In its jurisprudence, the European Court,
like the Inter-American Court, has held that a law may violate the right of an individual
and make that person a victim, even in the absence of any specific measure of subse-
quent implementation by the authorities, where the individual is directly affected, or is
at imminent risk of being directly affected by a legislative provision.22 In the European
system, it is unclear if this jurisprudence will change with the new admissibility require-
ment added by ECHR Protocol No. 15 that the victim must have suffered a ‘significant
disadvantage’ as a result of the violation.
The European Court has found that family members of direct victims may them-
selves be victims of violations.23 In addition, the family members may represent the
direct victim where the person is missing, dead, incommunicado, or in poor health.

18
  Ibid, para. 13.
19
  Comm. No. 107/1981, Quinteros v. Uruguay, GAOR, Hum. Rts. Comm., 38th Sess., Supp. No.
40, 216, UN Doc. A/38/40 (1983), para. 14.
20
 See Quinteros, supra n. 19 and Bleier v. Uruguay, Comm. No. 30/1978, Hum. Rts. Comm., 37th
Sess., GAOR Supp. No. 40 at 130, UN Doc. A/37/40, Annex X (1982). The Committee has formulated
the obligation to pay compensation in various ways:
(a) compensation to the victim (the disappeared person) and family for ‘any injury which he has
suffered’ (Comm. No. 30/1978, Bleier v. Uruguay)
(b) compensation to the husband for the death of his wife (No. 45/1979, Suarez de Guerrero
v. Colombia)
(c) ‘appropriate’ compensation to the family of a person killed (No. 84/1981, Dermit Barbato
v. Uruguay) or to the ‘surviving family’ (Nos. 146/1983 and 148–54/1983, Baboeram et al. v.
Suriname)
(d) compensation ‘for the wrongs suffered’ (No. 107/1981, Quinteros v. Uruguay)
(e) compensation for physical and mental injury and suffering caused to the victim by the inhu-
man treatment to which he was subjected (No. 110/1981, Antonio Viana Acosta v. Uruguay).
21
  European Court of Human Rights, Case of Klass and Others, (1978) 28 EHRR 5, 17–18.
22
 Ibid.
23
 See Kurt v. Turkey (1999) 27 EHRR 373 (1999) (mother of a disappeared son held to be victim of
a violation of Article 3 due to failure by the state to clarify son’s whereabouts).
244 Procedural Issues

Parents, guardians, or their legal representatives may represent children.24 In 2014, the
European Court for the first time extended standing to a national non-governmental
organization that sought to lodge an application on behalf of a deceased person who
had severe mental disabilities and HIV and no next of kin.25 The deceased had spent
his entire life in state care without having a guardian or other representative appointed
for him. The NGO had no authority or instructions from the deceased, but had filed
domestic proceedings seeking information about his death; the state authorities had not
objected to the NGO’s capacity to file the action, a fact the European Court found of
considerable significance but not determinative. In its judgment the Court emphasized
that special procedural safeguards could be required to protect the interests of persons
who on account of their mental disabilities were not fully capable of acting for them-
selves. The NGO could thus act as the deceased’s de facto representative, notwithstand-
ing the lack of a power of attorney.
The question of whether reparations or ‘just satisfaction’ applies to an interstate pro-
ceeding came before the European Court for the first time in May 2014, in the case
between Cyprus and Turkey.26 Turkey argued that reparations ‘exclusively pertain to
the sufferings of an individual applicant, i.e. a natural person, and have no meaning in
an interstate case’.27 The European Court rejected this argument, relying on the gen-
eral rules of state responsibility and the Chorzow Factory case to affirm that the ‘most
important principle of international law relating to the violation by a state of a treaty
obligation is “that the breach of an engagement involves an obligation to make repara-
tion in an adequate form.”’28 The Court thus held that it could not interpret Article 41
in a narrow or restrictive way to exclude interstate cases from its scope, especially when
they are substantially similar to individual cases or matters of diplomatic protection.
Redress under the Convention, however, differs from the exercise of diplomatic protec-
tion in that just satisfaction is for the benefit of the injured individuals and not for the
complaining state.29
Contrary to the European Convention, the American Convention allows persons
who are not victims of a violation to file private petitions but does not extend its guar-
antees to legal persons. The IACHR nonetheless has decided that a victim must be
identified and that it cannot accept cases in abstracto; allegations must pertain ‘to facts
involving the rights of a specific individual or individuals’.30 In contrast, the African
Charter allows actio popularis.31
The reparations provisions of the American Convention Art. 63 and the European
Convention Art. 41 refer to providing redress to the ‘injured party’, while other provi-
sions refer to ‘victims’. The use of the two different terms raises the question of whether
‘victim’ and ‘injured party’ have the same meaning. In several cases the European Court

24
 See, e.g. European Court of Human Rights, Ilhan v.  Turkey (2002) 35 EHRR 36; Nielsen
v. Denmark (1989) 11 EHRR 175; Scozzari and Guinta v. Italy (2002) 35 EHRR 12; Cambell and
Cosans v. UK (1999) 27 EHRR 611; SP, DP and T v. UK (2002) 22 EHRR CD 148.
25
  Centre for Legal Resources on behalf of Valentin Campeanu v. Romania [GC] (2014) Reports.
26
  European Court of Human Rights, Case of Cyprus v.  Turkey [GC] (just satisfaction) (2014)
App. No. 25781/94.
27
  Ibid, para. 38.
28
  Ibid, para. 41. The European Court also cited ICJ jurisprudence on compensation.
29
  Ibid, para. 46. In this case, Cyprus submitted claims in respect to two ‘sufficiently precise and
objectively identifiable groups of people’: 1,456 missing persons and the enclaved Greek Cypriot resi-
dents of Karpas peninsula and the Court accepted the claims.
30
  Rep. No. 28/98, Case 11.625 Maria Eugenia Morales De Sierra v.  Guatemala (1998), OEA/
Ser.L/V/II.98 Doc. 6, rev.
31
  SERAC v. Nigeria, Comm. 300/05, Afr. Commn HPR, 25th Annual Activities Report (2008).
 Who May Claim Redress? 245

has indicated that it views the term ‘injured party’ in Article 41 as synonymous with the
term ‘victim’ as used in Article 34 to establish standing to file an application.32 In Colozza
and Rubinat v. Italy,33 the Court awarded non-pecuniary damages to the victim’s widow
for her own moral injury, when the violation involved the denial of the deceased’s right
to a fair trial, but in Luedicke, Belkacem and Koç v. Germany34 the Court held that the
applicant’s lawyer could not be considered an injured party.
The American Court considered the two terms to have different scope in its early
cases, but has increasingly broadened the definition of victim and appears now to regard
the words as coextensive. In Velasquez Rodriguez, the Court gave a narrower reading to
victim than to injured party, considering only the disappeared person as a victim, but
including the wife and children of the disappeared individual as injured parties.35 After
1997, the Court began to view the next of kin or other family members as victims, first
in relation to disappearances cases and later extended to cases of arbitrary killings,36 but
generally not to cases of arbitrary detention.37 One study found that the amounts of
compensation appear to increase when persons are deemed victims and not just injured
parties.38
In Loayza Tamayo v. Peru,39 the Inter-American Court held that the victim’s family
members were ‘injured parties’ within the meaning of Article 63(1) and could present
their own claims during the reparations phase of the case. The Court considered that the
term ‘family members’ should be understood in a broad sense to include all those per-
sons linked by a close relationship, including the children, the parents and the siblings.
The Court allocated the awarded compensation between the victim and her family. In
Blake v. Guatemala,40 as well, the parents and siblings all claimed to be directly injured
by Blake’s disappearance and death. The Court’s judgment on the merits had already
determined that the violations had caused prejudice to Blake’s family and that the mem-
bers of it thereby constituted ‘injured parties’ within the meaning of Article 63(1). The
Court referred to the especially grave context of forced disappearance that caused the
family anguish and suffering, together with insecurity, frustration and impotence in
the face of the government’s failure to investigate. Again in Suárez Rosero v. Ecuador,41

32
  See European Court of Human Rights, De Wilde, Ooms and Versyp (Vagrancy cases) (1972) Series
A No. 14, Art. 50; Airey v. Ireland (1981) Series A No. 41, 3 EHRR 592, Art. 50; and Le Compte, Van
Leuven and De Meyere v. Belgium (1982) Series A No. 54, 5 EHRR 183, Art. 50.
33
  European Court of Human Rights, Colozza and Rubinat v. Italy (1985) Series A No. 89.
34
  European Court of Human Rights, Luedicke, Belkacem and Koç v. Germany (1980) Series A No.
36, 2 EHRR 433, Art. 50.
35
 Inter-American Court of Human Rights, Velasquez Rodriguez v.  Honduras (Compensatory
Damages) (1990) Series C No. 7.
36
 In Blake, the parents of the disappeared person were deemed victims of violation of Articles 5 and
8. In Street Children v. Guatemala, the mothers and one grandmother of the five children found to have
been arbitrarily killed were considered to be victims of violations of Article 5, 8 and 25 due to lack of
investigations and effective remedies. Inter-American Court of Human Rights, Blake v. Guatemala,
(1996) Series C No. 27.
37
  Inter-American Court of Human Rights Suarez Rosero, (1999) Series C No. 44, Castillo Petruzzi,
Castillo Paez, paras. 88–90.
38
  Clara Sanodval-Villalba, ‘The Concepts of “Injured Party” and “Victim” of Gross Human Rights
Violations’ in the Jurisprudence of the Inter-American Court of Human Rights: A Commentary on
their Implications for Reparations’ in Carla Ferstman et al. (eds.) Reparations for Victims of Genocide,
War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Leiden, 2009),
258–259, 243–282.
39
  Inter-American Court of Human Rights, Loayza-Tamayo v.  Peru (Reparations) (1998) Series
C No. 42.
40
  Inter-American Court of Human Rights, Blake v. Guatemala (1996) Series C No. 27.
41
  Inter-American Court of Human Rights, Suárez Rosero v. Ecuador (Reparations), (1999) Series
C No. 44.
246 Procedural Issues

the Court awarded damages to the applicant, his wife, and daughter, holding that it is
human nature to suffer in the circumstances he had been through and that no proof was
required because repercussions on his wife and daughter must be presumed. In contrast
to the presumption applied in this case, the sibling in La Cantuta was required to prove
harm to be treated as victim or injured party.42
In general, the Inter-American Court requires the state to remedy the harm caused to
those who suffer the ‘immediate effects’ of its breaches of human rights guarantees, when
those effects are sufficiently direct and proximate. The Inter-American Court has held
that this is only to the extent ‘legally recognized’ because ‘to compel the perpetrator of an
illicit act to erase all the consequences produced by his action is completely impossible’.43
This unhelpful test does not make clear if the required legal recognition is a question of
domestic or international law and if it applies to the identification of those entitled to
redress (i.e. who is a victim) as well as to the extent of harm to be repaired.
In its work, the Cambodia Extraordinary Criminal Court adopted a narrow defini-
tion of a ‘civil party’ victim, which requires a showing that the claimant has suffered
personal injury directly connected to one of the specific facts that the Co-Prosecutors
have sent for investigation in their introductory and supplementary submissions’.44 As a
result of this, some applications were declared to be inadmissible because the allegations
did not address one of the specific factual circumstances under investigation.45
Cases of massacres and other widespread violations raise the issue of unnamed or uni-
dentified victims. The Inter-American Court requires victims to be identified or identifi-
able to be eligible for reparations.46 In the Mapiripan Massacre case, the Inter-American
Court held that it cannot award material damages to unidentified victims47 but given
that Colombia had recognized its international responsibility in the case, any unidenti-
fied victim could claim reparations if he or she appeared before the national reparations
mechanism within 24 months of the notification of the identification of the remains of
their next of kin, and proved their relationship with the deceased using one of several
means of identification.48 Similarly, in the Castro Castro prison case, unnamed victims
were held entitled to compensation if they presented themselves before competent state
authorities within eight months following notification of the judgment and proved their
relationship of kinship with a specific direct victim.49

42
  Inter-American Court of Human Rights, La Cantuta v. Peru, (2006) 162 Inter-Am. Ct. H.R.
(ser. C).
43
  Inter-American Court of Human Rights, Aloeboetoe v. Suriname (1994) Series C No. 15, para. 49.
44
  See Internal Rules, at r. 23 bis.
45
  See e.g. D418, OCIJ, Order on the Admissibility of Civil Party Applicants from Current Residents
of Kampong Thom Province (ECCC 14 Sept. 2010); D414, OCIJ, Order on the Admissibility of
Civil Party Applicants from Current Residents of Kratie Province (ECCC 9 Sept. 2010); D411,
OCIJ, Order on the Admissibility of Civil Party Applicants from Current Residents of Kampong Speu
Province (ECCC 9 Sept. 2010); D403, OCIJ, Order on the Admissibility of Civil Party Applicants
from Current Residents of Kandal Province (ECCC 6 Sept. 2010).
46
  Inter-American Court of Human Rights, Case of Pueblo Bello Massacre v. Colombia (2006) Series C
No. 140, Case of Rochela Massacre v. Colombia (2007) Series C No. 163, Montero Arangueren v. Venezuela
(2006) Series C No. 150, Las Palmeras v. Colombia (2001) Series C No. 67, Saramaa People v. Suriname
(2008) Series C No. 185, Sawohaymaxa Indigenous Community v. Paraguay (2006) Series C No. 146,
Yakye Axa v. Paraguay (2006) Series C No. 142.
47
  Inter-American Court of Human Rights, Mapiripan Massacre v. Colombia (2005) Series C No.
134, para. 247.
48
  Ibid, para. 257.
49
  Inter-American Court of Human Rights, Miguel Castro Castro Prison v. Peru (2008) Series C
No. 181, para. 420. See also Mapirian Massacre, supra n. 47, para. 178, allowing 24 months to prove
eligibility.
 Who May Claim Redress? 247

In cases of widespread violations involving Turkey and Russia, the European Court
has largely limited itself to awarding compensation to a limited number of applicants,
but matters taken up through the pilot-judgment procedure can serve to extend the
potential claimant pool.50 Moreover, in Cyprus v.  Turkey, the just satisfaction award
extended to an unknown number of relatives of 1,456 missing persons and an unknown
number of enclaved Greek Cypriot residents of the Turkish occupied Karpas peninsula
in northern Cyprus.51
In the African Commission, one case resulted in a recommendation that the two
governments involved establish a Joint Commission to assess the losses with a view to
compensating unnamed victims.52 In its only inter-state case, the African Commission
recommended payment of reparation to the victims, but without specifying who fell
within this category.53
Determining who qualifies as a victim is also problematic in cases where corpo-
rate assets have been seized or other violations are committed against a company. The
Inter-American system does not allow legal persons to file claims, potentially barring
actions, for example, alleging violations of freedom of the press when a broadcast com-
pany is shut down and its equipment seized.54 Unless the corporate form is pierced to
allow the owners to bring an action, the case could be rejected. The European system
does allow legal persons to bring actions, but this poses problems when the violations
terminate the corporate entity. In the case of Agrotexim and Others v. Greece,55 the Court
held that it ‘considers that the piercing of the “corporate veil” or the disregarding of a
company’s legal personality will be justified only in exceptional circumstances, in par-
ticular where it is clearly established that it is impossible for the company to apply to the
Convention institutions through the organs set up under its articles of incorporation
or—in the event of liquidation—through its liquidators’.56
In the 2014 Yukos case,57 the European Court provided some clarification of the
‘exceptional circumstances’ in which the shareholders of a company may be entitled
to seek compensation and the methods by which distribution will be managed in such
circumstances. In the Yukos just satisfaction judgment, the largest pecuniary award in its
history, the European Court found that, notwithstanding Yukos’s liquidation (indeed,
because of it), shareholders were entitled to compensation in their own right for the
pecuniary harm the company had sustained. The Court required Russia to arrange for
direct payments of the funds to shareholders in proportion to their participation in the
company’s nominal stock at the date of dissolution.
Another difficult and divisive issue is that of excluding claimants from being con-
sidered ‘victims’ due to their own misconduct.58 In general international law, the issue

50
  See European Court of Human Rights, Dogan and others v. Turkey (2004) App No. 8803-8811/02,
paras. 153 et seq.
51
  Cyprus v. Turkey (Just Satisfaction) supra n. 26.
52
  African Institute for HR and Development on behalf of Sierra Leonean Refugees in Guinea v. Republic
of Guinea, Afr. Comm. HPR Comm. 249/2002 (2004), para. 74.
53
  DRC v. Burundi, Rwanda and Uganda, Comm. 227/1999 (200), done at the 33rd Ordinary
Session of the African Commission on Human and Peoples’ Rights—May 2003.
54
 See e.g. IACHR, Rep. No. 114/11, Petition 243-07 (Admissibility) Marcel Granier et  al.,
v. Venezuela, 22 July 2011.
55
  European Court of Human Rights, Agrotexim and Others v. Greece (1996) 21 EHRR 250.
56
  Ibid, para. 66.
57
  European Court of Human Rights, Case of OAO Neftyanaya Kompaniya Yukos v.  Russia (Just
Satisfaction) (2014) App. No. 14902/04.
58
  Noted scholar, Bin Cheng, refers to the principle of clean hands in reference to redress. Bin Cheng,
General Principles of Law as applied by International Courts and Tribunals (Cambridge, 1953), 156. See
also Raphael Thunhart, ‘The Defense of Illegality in the Law of Restitution: Policy Considerations,
248 Procedural Issues

of excluding or mitigating damages for misconduct does not appear in the ILC Articles
on State Responsibility. After debate, the ILC concluded that the ‘clean hands’ doctrine
was a principle of positive international law that had an impact on the scope of com-
pensation but not on the determination of wrongfulness. There was some support for
mentioning claimant misconduct in the draft as a basis for mitigation of damages,59 but,
in the end, the topic was excluded.
Some national reparations schemes apply a ‘clean hands doctrine’, especially in
the context of internal uprisings and armed conflict. In Peru, the Integral Plan of
Reparations contains exclusionary clauses for those who allegedly have or had ties to
illegal armed groups.60 Peru’s definition of ‘victim of the violation’ affirms that all peo-
ple who suffered a violation of their human rights are eligible for redress without con-
sidering the legality or morality of their personal actions, unless they belong to terrorist
or subversive groups and were wounded or killed as a direct result of armed conflict
and they were not subjected to any other violations. The underlying rationale seems to
be that these individuals are combatants under the law of armed conflict and therefore
legitimate targets. Police and armed forces members who violated rights remain enti-
tled to reparations.
In human rights litigation, states often argue against the award of moral damages
when victims committed crimes or were ‘subversives’.61 It is notable that this is the
same claim often made to justify the violations committed by the state in the first
place. The Inter-American Court, however, in the Castro Castro prison case awarded
reparations on behalf of dead and injured prisoners who had been detained for terror-
ism offences; the nature of their offences was not taken into account in the circum-
stances of the case.62 The European Court, in contrast, has limited or excluded moral
damages based on the conduct of the victim.63 Such an approach could be considered
discriminatory against these victims of human rights violations,64 but it also is argu-
able that the equitable basis of moral damages justifies denying human rights violators
any award. Procedural considerations include the question of how and when evalua-
tion of the guilt or innocence of an individual claimant should be decided and what
level of misconduct should affect a claim. Prosecution and punishment of perpetrators
remains possible, of course, and civil suits may make them responsible to their victims.
Whether they should also be deprived of a remedy for violations of their own rights
remains controversial.

Critical Comments and Reform of Law’, 1 London L. Rev. 173 (2005). Clean hands usually applies
between equal parties and the United States Supreme Court has held that it does not apply where a
private suit serves important public purposes. Perma Life Mufflers Inc. v. International Parts Corp., 392
U.S. 134, 138 (1968).
59
  ILC, SR 2639th mtg, SR, A/CN.4/SR.2639 (2000) at sec. 51.
60
  Law No. 28592, 20 July 2005, published in El Peruano No. 9173, 29 July 2005.
61
  See Inter-American Court of Human Rights, Neira Alegria et al. v. Peru, (1996), Series C No. 29,
para. 21. See also Bamaca Velasquez v. Guatemala (Reparations) (2000) Series C No. 70; Castillo Paez
v. Peru (1997) Series C No. 34; Loayza Tamayo v. Peru (1997) Series C No. 33; Castillo Petruzzi et al. Case
(1999) Series C No. 52; Benavides Cevallos v. Ecuador (1998) Series C No. 38; Durand y Ugarte v. Peru
(2000) Series C No. 68; Cantoral Benavides Case, (Reparations) (2001) Series C No. 89; Barrios Altos
Case (Chumbipuma Aguirre et al. v. Peru) (2001) Series C No. 75.
62
  For the IACHR’s approach see: Case 11.230, Report No. 119/96, IACHR, OEA/Ser.L/V/II.95,
Doc. 7 rev. at 234 (1997), fn. 6.
63
  European Court of Human Rights, McCann v. United Kingdom (1995) Series A No. 324.
64
  The UN Basic Principles call for reparations without any discrimination on any ground, without
exception. Basic Principles on the Right to a Remedy, supra n. 10, para. 25.
 Who May Claim Redress? 249

7.2  Communities and Peoples

There is a growing practice supporting collective claims and collective reparations.65
Human rights law has long recognized the family unit66 and indigenous and colonial
peoples as possessing collective rights. ILO Convention No. 169 protects the collective
rights of indigenous peoples, in particular their lands, resources, environment, and cul-
ture. The Genocide Convention and other texts prohibiting genocide define the crime
with reference to specified groups; it is what distinguishes genocide from murder. The
text and commentary to the UN Principles on Reparations make clear that group or col-
lective remedies may be appropriate, but the language is cautious: ‘In addition to indi-
vidual access to justice, States should endeavour to develop procedures to allow groups of
victims to present collective claims for reparation and to receive reparation collectively,
as appropriate’.67 Even so limited, the provision has met with opposition by some states.
Practice among tribunals varies. The Cambodian ECCC can only order collective and
moral reparations.68 In Case 001, the Trial Chamber of the ECCC granted collective repa-
rations, publishing the names of civil parties and victims in its judgment and ordering the
compilation and publication of all statements of apology and remorse made by the perpetra-
tor during the course of the trial.69 The African system goes in a very different direction and
allows an actio popularis70 for both individual and collective rights and remedies. African
cases often concern large numbers of individuals subjected to similar discrimination, deten-
tion, unfair trials, expulsion, and other violations of rights.71 The case of African Institute for
HR and Development on behalf of Sierra Leonean Refugees in Guinea v. Republic of Guinea,72
for example, concerned detentions and attacks on many of the 300,000 refugees from Sierra
Leone. These cases of mass violations pose serious problems of evidence because often the
victims are illiterate and government offices may not exist with documentation in rural
areas. While showing a pattern or practice may make out a prima facie case, victims still need
to produce evidence linking themselves with the pattern or practice.73
In the European system, the European Court has sometimes limited the compensation
awarded to each applicant when there are numerous claimants,74 on the unconvincing

65
  See the Committee on the Right to Reparation for Victims of Armed Conflict, International Law
Association, The Hague, August 2010. Commentary to Article 6: ‘The concept of collective reparation
has been even less explored than the right to individual reparation. Still, there are some developments
that indicate that international law endorses collective reparation’.
66
  UDHR, Art. 16(3); ICCPR Art. 23(1); ECHR, Art. 8(1); Am. Conv. Art. 17(1); Afr. Charter
HPR Art. 18. In Castillo Paez Case (Reparations) (1998) Series C No. 43, para. 76 the Court awarded
compensation to the family unit as such.
67
  Basic Principles and Guidelines on the Right to a Remedy, supra n. 10, para. 13.
68
  Internal Rules (Rev. 5), 9 Feb. 2010, Rule 23 quinquies.
69
  ECCC, Trial Chamber, Case File/Dossier No. 001/18-07-2007/ECCC/TC (18/07/2010).
70
 In Article 19 Eritrea, Afr. Commn HPR, Comm. 275/2003 (2007), para. 65, said: African Charter
‘adopted the actio popularis approach where the author of a communication need not know or have any
relationship with a victim. This is to enable poor victims of human rights violations on the continent to
receive assistance from NGOs and individuals far removed from their locality’.
71
  See e.g. Malawi African Assn v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164/97 to 196/97
and 210/98 (2000).
72
  African Institute for HR and Development on behalf of Sierra Leonean Refugees in Guinea v. Republic
of Guinea, Afr. Commn HPR Comm. 249/2002 (2004).
73
  See European Court of Human Rights, Aksakal v. Turkey (2007) App. No. 51967/99, para. 35.
74
 European Court of Human Rights, Arvanitaki-Roboti and Others v.  Greece (2006) App.
No. 27278/03; Arvanitaki-Roboti and Others v. Greece [GC] (2008) App. No. 27278/03; Kakamoukas
and Others v. Greece (2006) App. No. 38311/02, and Kakamoukas and Others v. Greece [GC] (2008)
App. No. 38311/02.
250 Procedural Issues

ground that the damage suffered by each individual is reduced when they bring their case
collectively, but in the fourth of the interstate cases concerning Turkey’s responsibility
for human rights violations in Cyprus,75 the European Court said that it had come to the
‘inescapable conclusion’ that the rights violations:
were directed at the Karpas Greek-Cypriot community for the very reason that they belonged
to this class of persons. The treatment to which they were subjected during the period under
consideration can only be explained in terms of the features which distinguish them from the
Turkish-Cypriot population, namely their ethnic origin, race and religion. The conditions under
which that population is condemned to live are debasing and violated the very notion of respect
for the human dignity of its members.76
The Court awarded 90 million euros in moral damages, its largest ever award of
compensation for moral damage, as a consequence of the violations. The Committee of
Ministers has been left with the task of enforcing this judgment as well as the 2001 judg-
ment on the merits, to ensure that Turkey takes the measures necessary to bring about
cessation of the violations.77
Rosenfeld agrees that ‘the targeting of a collective can cause harm that differs from
the harm caused by targeting the same number of individuals who are not part of a
collective’.78 Members of such groups may be bound together by various factors: a com-
mon identity based on culture, religion, ethnicity or tribe, gender, vulnerability, or age.79
Some collectivities have legal personality others do not. The African Commission has
given a broad interpretation to the ‘peoples’ whose rights are guaranteed under the African
Charter,80 noting that in the Charter the notion of ‘people’ is closely related to collec-
tive rights enumerated under Charter Articles 19-24. For its part, the Inter-American
Court has declared indigenous and tribal communities as such to be ‘injured parties’
under the American Convention and thus beneficiaries of reparations.81 The Court has
not provided an exhaustive definition of indigenous peoples, but it has emphasized that

75
  The interstate cases concerning Cyprus are:  Greece v.  United Kingdom, (1956) Yb 2, 182,
Commission report published in (1997) 18 HRLJ 348; Greece v. United Kingdom, (1957) 2 Yb 186,
Committee of Ministers, Res. D.H.(2006) 24; Cyprus v. Turkey (1) and Cyprus v. Turkey (2), (1975)
2 DR 125 (admissibility), 1976 Commission merits report available on HUDOC; Cyprus v. Turkey
(3), (1978) 13 DR 85, Commission report published in (1992) 13 HRLJ 154; Cyprus v. Turkey (4),
(merits) ECHR 2001-IV [GC], (2001) 22 HRLJ 217; Cyprus v. Turkey (4)(just satisfaction) 2014
ECHR [GC], reprinted in (2014) 34 HRLJ 77. Another interstate case, France, Norway, Denmark,
Sweden and the Netherlands v. Turkey resulted in a friendly settlement, (1985) 44 DR 31, (1985) 6
HRLJ 331.
76
  Cyprus v. Turkey (4) (just satisfaction), supra n. 75 paras. 309. The Court held that the discrimi-
natory treatment reached a level of severity that amounted to degrading treatment: ibid, at para. 310.
77
  The government of Turkey announced that it will not comply with the judgment. See Isabella
Risini, ‘An Individual-Centered Decision Seen in the Historical and Institutional Context Which Let to
Cyprus v. Turkey (IV): The 2014 Just Satisfaction Judgment of the European Court of Human Rights’,
(2014) 34 HRLJ 18, n. 3.
78
  F. Rosenfeld, ‘Collective Reparations for victims of Armed Conflicts’, in International Review of the
Red Cross 92(2010): 731–746, 734.
79
  Even the inmates of a detention centre may be considered a collective entitled to collective repara-
tions. See Inter-American Court of Human Rights, ‘Juvenile Re-education Institute’ v. Paraguay (2004)
Series C No. 112 and Montero-Arangueren et al. (Detention Center of Catia) v.Venezuela (2006) Series
C No. 150.
80
  Kevin Mgwanga Gunme v. Cameroon, Comm. 266/2003, Afr. Commn HPR, EX/CL/529(XV)
(2009), paras. 169–79 (finding the people of Southern Cameroon to be a ‘people’ because they manifest
characteristics of a common history, linguistic tradition, territorial connection, and political outlook,
and ‘more importantly’, they identify themselves as a people).
81
  Article 63(1), American Convention.
 Who May Claim Redress? 251

self-identification is important,82 as is a close link with ancestral territories. The Court

has also mentioned as significant identifying factors the characteristics of ‘social, cultural
and economic traditions different from other sections of the national community’, and
self-regulation according to the group’s own norms, customs, and traditions.83 The Court
has relied on ILO Convention No. 169 to hold that ‘tribal’ groups also have collective
rights, equivalent to those of indigenous peoples, at least with respect to communal own-
ership of land, as long as the group demonstrates some of the requisite characteristics.84
In the Aloeboetoe case, the IACHR argued to the Court for the first time that a tribe
suffered moral damage and was entitled to compensation as a collectivity. According to
the Commission:
[i]‌n the traditional Maroon society, a person is not only a member of his own family group, but
also a member of the village community and of the tribal group. In this case, the damages suffered
by the villagers due to the loss of certain members of its group must be redressed. Since the vil-
lagers, in practice, constitute a family in the broad sense of the term … they have suffered direct
emotional damages as a result of the violations of the Convention.85
The Court rejected the collective part of the claim, apparently—and wrongly—
believing that it was based on an alleged and unproved racial motivation for the killings
or violation of the 1762 treaty establishing Saramaca autonomy.
In the later case of Awas Tingni Mayagna (Sumo) Indigenous Community v. Nicaragua,86
the Inter-American Court was more accepting of a collective claim made by an indige-
nous community for harm to its ancestral lands and resources due to logging concessions
granted by the government without consulting the community. The Court held that the
state had violated the right to judicial protection (Art. 25 of the American Convention)
and the right to property (Art. 21 of the Convention) and unanimously declared that the
state must adopt domestic laws, administrative regulations, and other necessary means
to create effective surveying, demarcating and title mechanisms for the properties of the
indigenous communities, in accordance with customary law and indigenous values, uses
and customs. Pending the demarcation of the indigenous lands, the state must abstain
from realizing acts or allowing the realization of acts by its agents or third parties that
could affect the existence, value, use or enjoyment of those properties located in the
Awas Tingni lands. By a vote of seven to one, the Court also declared that the state must
invest US$50,000 in public works and services of collective benefit to the Awas Tingni
as a form of reparations for non-material injury and pay US$30,000 for legal fees and
expenses.87
Although there is no legal definition of ‘collective reparations’88 the term has been
explained as ‘the benefits conferred on collectives in order to undo the collective harm

82
 See e.g. Inter-American Court of Human Rights, Xákmok Kásek Indigenous Community
v. Paraguay (2010) Series C No. 214, para. 37 (24 August 2010) (‘from its name to its membership …
the Court and the State must limit themselves to respecting the way in which the Community
self-identifies itself ’).
83
  Inter-American Court of Human Rights, Saramaka People v. Suriname (2007) Series C No. 172,
para. 79.
84
 Ibid. 85
  Aloeboetoe case, supra n. 43, para. 19. See also ibid, paras. 81–4.
86
  Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Cmty v. Nicaragua, (2001)
Series C No. 79.
87
  Ibid, para. 167.
88
  ICC-CPI-20120807-PR831, Decision establishing the principles and procedures to be applied
to reparations, 7 August 2012. ‘Women’s Initiatives highlights the absence of a definition of collective
reparations in international law. It submits that the term “collective reparations” encompasses repara-
tions that are directed at specific groups of people, as well as the wider community’, para. 61.
252 Procedural Issues

that has been caused as a consequence of a violation of international law’.89 To obtain

collective reparations requires having a collective as beneficiary, collective harm, and a
violation of international law in relation to the collective. Given this construct, collective
reparations focus on delivering benefits to the group of victims that suffered from the
violations90 and may include services to the community, such as educational, housing,
agricultural and health projects, provision of electricity and drinking water.91
The issue of collective awards generated debate during the drafting of the Rome
Statute of the ICC.92 A compromise view ultimately prevailed, with the Statute giving
the Court flexibility to make individual or collective awards, depending on the desires
and needs of the particular victims in a given case.93 It was agreed that the Trust Fund is ‘a
convenient body to administer collective awards’,94 and thus the Rules state that collec-
tive awards may be implemented through the Fund.95 The ICC has addressed collective
reparations96 and in its submission to the ICC, the Public Council for Victims (‘OPCV’)
also discussed the issue:
collective reparations can be given a broad and a narrow interpretation. A narrow approach would
include measures that cater for existing groups who are linked by cultural, ethnic, social, cultural
or spiritual factors. Applying a broad interpretation, collective reparations would address the posi-
tion of individual victims who are part of a community or other group, and the awards would
complement any individual reparations measures.97
Collective reparation can refer either to the modalities of awarding reparation, the
impact of the violation on the community, the types of redress, or a combination of these
elements. The ICC Trust Fund for Victims distinguishes between collective reparations
that are ‘inherently collective and exclusive’ (such as specialized health services for a tar-
geted group of victims), and those that are ‘community oriented and not exclusive’ (such
as schools that benefit the entire community).98
The Inter-American Court’s jurisprudence99 includes many collective reparation
measures, in particular in cases of mass victimization. The 1982 Plan de Sanchez mas-
sacre, for example, involved the killing of approximately 268 indigenous people in
Guatemala without effective investigation for some fourteen years. Survivors who fled

89
  See Letschert and Van Boven, ‘Providing Reparation in Situations of Mass Victimization: Key
Challenges Involved’, in R.M. Letschert, et al. (eds.), Victimological Approaches of International Crimes
(Cambridge, 2011), 155–186.
90
 See The Rabat Report: The Concepts and Challenges of Collective Reparations, 42, International Center
for Transitional Justice, 2009 available at http://ictj.org/sites/default/files/ICTJ-Morocco-Reparations-
Report-2009-English.pdf (last accessed October 2011). See also L. Magarrell, Reparations in Theory and
Practice, Reparative Justice Series ICTJ, 2007 5–6.
91
 See Saramaka, Sawhoyamaxa, Yakye Axe, Xamok Kasek and other indigenous cases at the Inter-American
Court, supra n. 46.
92
  Peter Lewis & Håkan Friman, ‘Reparations to Victims’, in Roy S. Lee (ed.), The International
Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 474, 483 (The Hague, 2000).
93
 Ibid. 94
  Ibid, at 487. 95
  ICC Rules, R. 98(3).
96
  ICC-CPI-20120807-PR831, Decision establishing the principles and procedures to be applied to
reparations, 7 August 2012.
97
  ICC-01/04-01/06-2863, paras. 31–32.
98
  See Trust Fund for Victims, Observations on Reparations in Response to the Scheduling Order of
14 March 2012, ICC-01/04-01/06-2872, 25 April 2012, para. 174.
99
  See D. Contreras-Garduno, ‘Defining Beneficiaries of Collective Reparations: The Experience of
the Inter-American Court of Human Rights’, in (2012) 4 Amsterdam Law Forum 41–57. Inter-American
Court of Human Rights Mapiripán Massacre v. Colombia, (Merits, Reparations and Costs) (2005) Series
C No. 134, para. 316; Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Merits, Reparations and
Costs) (2001) Series C No. 79; Plan de Sánchez Massacre v. Guatemala (Reparations and Costs) (2004)
Series C No. 116.
 Who May Claim Redress? 253

suffered multiple violations beyond losing their relatives, including inhumane treat-
ment and loss of property, deprivations of rights to a fair trial and judicial protection.
The IACHR submitted the case to the Court and in its application requested redress for
the communities and their members.100 During the reparations phase, the Court said it
could award reparation for all members of the communities affected by the facts of the
case, in part due to the gravity of the violations.101 The Inter-American Court ordered
public works to be financed by the national budget allocated to that region, as well as
maintenance and improvement of the community roads, sewage system and potable
water supply; establishment of a health centre in the village with a broad medical and
psychological treatment program;102 assignment of teachers trained in intercultural and
bilingual teaching for primary, secondary and comprehensive schooling; a housing pro-
gram; study and dissemination of the Maya-Achí culture in the affected communities
through the Guatemalan Academy of Mayan Languages or a similar organization.103 The
Court also required the government to rebuild the community’s chapel, an order the
government later claimed during hearings and visits would be unconstitutional because
the Constitution mandates separation of church and state.
Another murder of at least thirty-nine Maroons belonging to one cultural group, the
N’djuka, was at issue in the 2005 case of Moiwana Village v. Suriname.104 The Moiwana
massacre occurred before the state had accepted the Court’s jurisdiction105 making the
event outside the Court’s temporal jurisdiction,106 but the Court found violations of
the rights to freedom of movement, personal integrity, due process, judicial protection,
and property107 because of the ongoing deprivation of home and property.108 The judg-
ment called for $10,000 per survivor for moral damages,109 and as collective reparations,
ordered the establishment of a $1.2 million fund to be directed to health, housing and
educational programs for the Moiwana community members,110 to be administered by
a committee of three members: one chosen by the victims, another by the State, and the
third agreed upon by both parties.111
The Court emphasized the participation of the victims, directing Suriname to inves-
tigate and prosecute, as well as to recover and deliver the remains of individuals killed
during the attack;112 have high-ranking government authorities issue an apology dur-
ing a public ceremony;113 construct a memorial, whose ‘design and location shall be
decided upon in consultation with the victims’ representatives;’114 implement an effec-
tive mechanism for the delimitation, demarcation and titling of ancestral lands, with the
victims’ participation and informed consent;115 and provide safety guarantees for any
community members who decide to return to Moiwana Village.116
The 2012 case of the Rio Negro Massacres v. Guatemala concerned five indigenous
communities attacked by the Guatemalan army;117 the killings themselves fell outside
the Court’s temporal jurisdiction, but it had competence over the forced disappearances,

100
  Plan de Sanchez, supra n. 99, paras. 47–48. 101
  Ibid, paras. 62, 86.
102
  Ibid, paras. 107–108. 103
  Ibid, para. 110.
104
  Moiwana Cmty v. Suriname (2005) Series C No. 124. Government and militia forces had attacked
Moiwana Village on the suspicion that community members supported an insurgency movement.
105
  Ibid, para. 4. 106
  Ibid, para. 233 (finding no violation of the right to life).
107
  Ibid, para. 233(1)–(4).
108
  Ibid, para. 187. Survivors had fled the region and refused to return out of fear and for cultural
reasons linked to the killings. Ibid, paras. 86(15) and 86(19).
109
 Ibid, para. 196.   110 Ibid, para. 214.   111  Ibid, para. 215.
112
  Ibid, paras. 202–208.    113 Ibid, para. 216.   114  Ibid, para. 218.
115
  Ibid, paras. 209–211.    116  Ibid, para. 212.
117
  Inter-American Court of Human Rights, Rio Negro Massacres v. Guatemala, (Preliminary objec-
tion, merits, reparations and costs), (2012) Series C No. 250.
254 Procedural Issues

inadequate criminal investigations, forced displacement, and physical and psychologi-

cal harm that continued to affect the next of kin and survivors. Guatemala partially
acknowledged its responsibility and the Court awarded both collective and individual
remedies,118 ordering compensation for the survivors and the family members of the
deceased,119 and requiring the government to conduct a prompt investigation and pros-
ecution,120 publicly recognize its responsibility, and publish the judgment, including in
the Maya Achí language.121
Other collective measures were directly aimed at restoring or preserving the group’s
cultural identity, such as ensuring that medical and psychological treatment ordered was
consonant with the indigenous medicine and customary practices, and that funerals,
paid for by the government, would be carried out ‘in agreement with the next of kin,
respecting their beliefs’.122 Most ambitiously, the Court called for a program to promote,
disseminate, and conserve the Mayan ancestral customs and practices, based on their
values, principles, and philosophies, designed and executed with the active participation
of the members of the Río Negro community.123 The government and the victims agreed
that there would be a museum to honour the memory of the numerous victims,124 a
measure the Court approved. Finally, in light of the precarious living conditions of the
survivors, the Court ordered the state to build or improve the health centre, schools and
nutrition programs; construct roads and provide affordable electrical services, water,
drainage, and sewage.125
Truth commissions, including the South African TRC, have often underlined the
benefits of collective redress. If collective measures serve to address collective harm, such
an award should not conflict with individual redress. Collective reparation acknowl-
edges the existence of the group and may help undo the harm caused to it, but it should
not become an excuse for failing to address the particular injuries suffered by the indi-
viduals most directly targeted and harmed.

7.3  Survivability of Claims

The European Court of Human Rights has held that an award of pecuniary damages to
the direct victim can be recovered by heirs and successors if the applicant dies during
the proceedings, while non-pecuniary or moral damages do not survive unless the court
deems it necessary to advance the cause of justice.126 The Court awarded FF50,000
moral damages in Gülec v. Turkey,127 after it found that the government violated Article 2
by opening fire on unarmed demonstrators, causing the death of the applicant’s son and
failing to conduct a proper investigation after the death. Two judges dissented, asserting

118
  Ibid, para. 17.
119
  Ibid. Compensation paid under Guatemala’s National Reparations Program was to be subtracted
from these amounts.
120
  See ibid, para. 257.
121
  Ibid, paras. 277–278. For a similar measure see Inter-American Court of Human Rights, Yatama
v. Nicaragua (2005) Series C No. 127, para. 253.
122
  Rio Negro Massacres, supra n. 117 paras. 265, 270, 289.
123
  Ibid, para. 285. The Court specifically called for the establishment of a bilingual high school
education program in Spanish in Maya Achi: ibid at para. 284.
124
 Ibid, para. 279.   125  Ibid, para. 284.
126
  European Court of Human Rights, X. v. United Kingdom (1982) Series A No. 55, paras. 18–19
(Art. 50); Colozza and Rubinat v. Italy, supra n. 33 para. 38; Deumeland v. Germany (1986) Series A No.
100, para. 97; Gillow v. United Kingdom (1986) Series A No. 109, para. 23.
127
  European Court of Human Rights, Gülec v. Turkey (1998) 1998-IV, No. 80.
 Who May Claim Redress? 255

that in principle they disapproved of an award of moral damages for relatives of a victim,
‘finding it rather unseemly to derive financial gain from the death of a relative’. This
critique is unwarranted; it ignores the very real suffering attendant on the loss of a child
or other close family member due to government misconduct, and offers no alternative
to financial compensation to remedy that loss.128
It is possible that a claim may arise even after the death of the direct victim. In
Nolkenbockhoff v. Germany,129 the European Court of Human Rights decided that a
widow could bring an action for violation of the presumption of innocence of her dead
husband. The Court held that:
The principle of the presumption of innocence is intended to protect ‘everyone charged with a
criminal offence’ from having a verdict of guilty passed on him without his guilt having been
proved according to law. It does not follow, however, that a decision whereby the innocence of a
man ‘charged with a criminal offence’ is put in issue after his death cannot be challenged by his
widow under Article 25. She may be able to show both a legitimate material interest in her capacity
as the deceased’s heir and a moral interest, on behalf of herself and of the family, in having her late
husband exonerated from any finding of guilt … In the circumstances, Mrs Nolkenbockhoff can
consequently claim to be a ‘victim’ within the meaning of Article 25.
Among the cases decided by the Inter-American Court of Human Rights, few direct
victims have survived the breaches to bring an international complaint. In cases where
they have not, various family members and other dependants of the deceased have been
the claimants. In such cases they have sought remedies for: (1) injuries to the deceased
prior to death; (2) wrongful death; and (3) consequential damages they have suffered in
their own right. The first category should survive, to avoid making it ‘cheaper’ for the
state to kill the victim than to ensure his or her survival. The Inter-American Court has
held that both pecuniary and non-pecuniary claims survive and automatically pass to
the victim’s heirs or successors. There is nonetheless a distinction made between those
who are entitled to damages for injury inflicted prior to death and those due for the loss
of life. Parents, for example, may recover the former because they are presumed to suf-
fer moral injury for harm inflicted on their children, but must prove economic losses to
recover the latter.
In the Aloeboetoe case,130 the Court held that successors to wrongfully killed victims
may be presumed to suffer injury and the burden of proof is on the government to show
that such injury does not exist.131 Non-successor third parties may also suffer injury, but
they bear the burden of proof. Three conditions must be satisfied before non-successors
may be awarded damages:
(1) The damages sought must be based on payments actually made by the victim to the
claimant, whether or not they constituted a legal obligation to pay support. These
must be regular, periodic payments either in cash, in kind or in services. The test is
the effectiveness and regularity of the contributions
(2) The nature of the relationship between the victim and the claimant should be
such that it provides some basis for the assumption that the payments would have
continued had the victim not been killed

128
  The judges also argued that no damages should be awarded because the victim had died while
participating in a violent demonstration. The reduction or denial of moral damages because of the
Court’s assessment of the victim’s conduct is a pattern in decisions of the European Court. See, infra,
Chapters 7 and 8.
129
  European Court of Human Rights, judgment of 18 Dec. 1996, para. 113. 130
 Ibid.
131
  Ibid, para. 54.
256 Procedural Issues

(3) The claimant must have experienced a financial need that was periodically met
by the contributions made by the victim. This requires that the person received a
benefit that he or she could not have obtained on his or her own.

7.4 Conclusions
The development of remedies for human rights violation has led to the expansion of
international law and procedures, including through the acceptance of actio popularis in
the African system. International tribunals have used their implied powers to ensure that
the term ‘victim’ or ‘injured party’ is interpreted to achieve the goal of wiping out the
consequences of the harm, even where the consequences are collateral to the immediate
injury. They also demonstrate a concern with preventing a real risk of imminent harm
through accepting that those subject to such risks can be considered victims of human
rights violations. International tribunals have further sought to ensure the effectiveness
of international human rights guarantees by recognizing collective harm to peoples and
communities, especially in the context of gross and widespread violations.
 8
Presentation of Claims

The formal requirements for victims to present a claim for redress, should they prove
a violation of their rights, vary considerably from one human rights body to the next.
Most UN treaty bodies have not adopted specific rules on when and how claims for
redress must be presented, or even whether they must be included in the petition or com-
munication. The UN form for model communications, for example, does not ask for
any information about redress sought, merely about the facts of the alleged violations.
In contrast, the regional courts generally have detailed procedures and requirements
in place.
The European Court does not see itself as required to examine claims for just satis-
faction on its own motion1 and consequently will normally not award compensation
without a claim from the applicant.2 Article 60 of the Rules of Court requires that a
claim for just satisfaction be made in full in writing. The applicant must submit itemized
particulars of all claims, together with any relevant supporting documents, within the
time-limit fixed for the submission of the applicant’s observations on the merits unless
the President of the Chamber directs otherwise.
In March 2007, the President of the European Court issued a Practice Direction
instructing applicants and their representatives in more detail on the requirements to
claim just satisfaction and summarizing the relevant doctrine on such claims. Claimants
are warned that compliance with the formal and substantive requirements deriving from
the Convention and the Rules of Court is a condition for the award of just satisfaction.
In this regard, the Court requires specific claims supported by appropriate documentary
evidence, failing which it may make no award. The Court will also reject claims set out
on the application form but not resubmitted at the appropriate stage of the proceedings
and claims lodged out of time.
For claims of pecuniary damage, the applicant must show that pecuniary damage has
resulted from the violation or violations alleged. The applicant should submit relevant
documents to prove, as far as possible, not only the existence but also the amount or
value of the damage. Normally, the Court’s award will reflect the full calculated amount
of the damage, but if the actual damage cannot be precisely calculated, the Court will

1
  See European Court of Human Rights, Moore and Gordon v. UK (2000) 29 EHRR 728 and Huvig
v. France (1990) 12 EHRR 528.
2
  European Court of Human Rights, Sunday Times v.  United Kingdom (1980) Series A  No. 38
(Art. 50), para. 14. There are exceptions, however, where the Court has awarded damages without a
request, based on the ‘absolute character’ of the violated right (Chember v. Russia (2008) Application
No. 7188/03, para. 77 (10,000 euros); X. v. Croatia, (2008) Application No. 1223/04, para. 63 (8,000
euros); Igor Ivanov v. Russia (2007) Application No. 34000/02, para. 50 (5,000 euros); Mayzit v. Russia
(2005) Application No. 63378/00, paras. 87-88 (3,000 euros); and Nazarenko v.  Ukraine (2003)
Application No. 39483/98, para. 172 (2,000 euros)); the ‘particularly serious character of the viola-
tions’ (Bursuc v. Romania (2004) Application No. 42066/98, para. 124 (10,000 euros)); the ‘gravity of
the violations’ (Gorodnitchev v. Russia (2007) Application No. 52058/99, para. 143 (10,000 euros)); or
the ‘fundamental importance’ of the right (Rusu v. Austria (2008) Application No. 34082/02, para. 62
(3,000 euros); Crabtree v. the Czech Republic, (2010) Application No. 41116/04, para. 60, (2,000 euros);
and Khudyakova v. Russia (2009) Application No. 13476/04, para. 107 (5,000 euros)).
258 Procedural Issues

make an estimate based on the facts at its disposal or the Court may find reasons in equity
to award less than the full amount of the loss. Applicants who wish to be compensated
for non-pecuniary damage are invited to specify a sum which in their view would be
equitable. Applicants who consider themselves victims of more than one violation may
claim either a lump sum covering all alleged violations or a separate sum in respect
of each alleged violation. For costs and expenses, the Court requires evidence, such as
itemised bills and invoices. These must be sufficiently detailed to enable the Court to
determine to what extent the above requirements have been met.
In its Practice Direction, the Court also indicates some of the procedural aspects of
payment. Applicants are invited to identify a bank account into which they wish any
sums awarded to be paid. If they wish particular amounts, for example the sums awarded
in respect of costs and expenses, to be paid separately, for example directly into the
bank account of their representative, they should so specify. Any monetary award under
Article 41 will normally be in euros (EUR, €) irrespective of the currency in which the
applicant expresses his or her claims. If the applicant is to receive payment in a currency
other than the euro, the Court will order the sums awarded to be converted into that
other currency at the exchange rate applicable on the date of payment. When formulat-
ing their claims, applicants should, where appropriate, consider the implications of this
policy in the light of the effects of converting sums expressed in a different currency into
euros or contrariwise. The Court will of its own motion set a time-limit for any payments
that may need to be made, which will normally be three months from the date on which
its judgment becomes final and binding. The Court will also order default interest to be
paid in the event that that time-limit is exceeded, normally at a simple rate equal to the
marginal lending rate of the European Central Bank during the default period plus three
percentage points.
In its jurisprudence, the Court has strictly applied the procedural and substantive
requirements. If the applicant fails to include a request for fees, for example, the lawyer
for the applicant cannot later file a request.3 In Sunday Times v. United Kingdom,4 the
Court refused to award damages because the applicant’s submissions ‘contained some
references to material and moral damage allegedly suffered’ but the actual claim was
confined to costs and expenses.5 The Court held that ‘no question of public policy’
required it to consider on its own motion whether the applicant had been harmed.6 The
Court was mistaken. The public interest is involved each time there is a violation of the
European Convention and a necessary component of upholding the treaty regime is
the Court’s role in affording relief that will deter future violations and indicate the inher-
ent moral injury caused to the victim of the violation. The Court may have felt that
moral damages are uniquely within the comprehension of the victim and that an award
when it is not claimed would over-compensate. Yet, it is important to judge the serious-
ness of the violation in the larger context of claims filed. One can argue that the crisis
presented by the rising caseload is a consequence of the Court’s failure to indicate the
measures necessary to cure a violation and ensure that it is not repeated.
The European Court has referred to a ‘general interest’ which could allow it to award
presumed damages ‘if necessary’ to afford just satisfaction. The Court has also recognized
both an individual and a general interest when cases are resolved by friendly settlement.
In Skoogstrom v. Sweden,7 the Court approved a friendly settlement in a case involving
the right of a person held in detention on remand to be brought promptly before a judge

3
  European Court of Human Rights, Delta v. France (1990) Series A No. 191A, 47.
4
  Sunday Times v. United Kingdom, supra n. 2 at 9. 5
 Ibid. 6
 Ibid.
7
  European Court of Human Rights, Skoogstrom v. Sweden (1984) Series A No. 83.
 Presentation of Claims 259

or other officer authorized by law to exercise judicial power. The settlement included
payment to Mr Skoogstrom of his legal costs (expenses and loss of time) in the sum of
SEK5,000. In addition, the government created a Commission for Revision of Certain
Parts of the Code of Judicial Procedure to which the applicant’s lawyer was named. The
Delegate of the Commission commented that the settlement ‘satisfied the individual
interests of the case’ but that the general interest ought to include review of the nature of
the amendments and time for them to be adopted into Swedish law. The Delegate pro-
posed that the Court should not strike the case, but should adjourn its examination until
it could determine that the legislation was being adopted. The Court declined to do so,
seeing no reason of public policy ‘sufficiently compelling’ to warrant retaining the case.
The decision was four to three with the dissenting judges stating that the decision ‘does
not seem … to be consonant with the general interest attaching to observance of human
rights, which interest the Court is responsible for safeguarding’.8 The dissent believed
that the Court should have ruled on the merits of the case to guide the Commission and
Swedish legislature.
In its early years, the Court issued decisions on just satisfaction in a separate phase of
each case, which increased the length of the proceedings. The Court retains this practice
today only for complex cases, such as expropriation claims under Protocol I, Article 1
(right to property), where valuation is difficult,9 but it may invite any party to submit
comments on the claim for just satisfaction at any time during the proceedings.
The Inter-American Commission on Human Rights has no provision in its regula-
tions concerning presentation of a request for relief by the applicant, probably because
the American Convention makes no reference to a Commission role in this regard.
Yet, when the Commission files a case with the Court, Article 35 of the Rules of Court
requires the Commission to submit its Article 50 final report on the case as well as infor-
mation about the claims made ‘including those relating to reparations’.10 The filing is
notified to the victim who has two months from the notice to file a brief containing the
victim’s pleadings, motions and evidence, including claims for reparations and costs.
Article 56 of the rules also foresees the submission of final written arguments.
The Inter-American Court’s practice has evolved considerably. In the Velásquez-
Rodríguez case, the Commission requested the Inter-American Court to award compen-
sation to the victims of the violation, but offered no evidence regarding the amount of
damages or the manner of payment. It also failed to plead costs. The Court held that it
would not be ‘proper’ for the Court to rule on them in the absence of a pleading. The
issue was raised again during the compensatory damages phase of the case. The Court
again rejected the award of attorneys’ fees and costs because they were not pleaded or
proven opportunely.
Like the IACHR, the 2010 Rules of Procedure of the African Commission on
Human and Peoples’ Rights omit specific information concerning submission of claims
for redress. Rule 108 indicates only that once a complainant has been notified that a
communication has been declared admissible, he or she has sixty days to submit observa-
tions ‘on the merits’. The African Court Rules of 2010 do specify that individual appli-
cants seeking reparations pursuant to Article 27(1) of the Protocol on the Court shall

8
  Ibid. Joint dissenting opinion of Judges Wiarda, Ryssdal and Ganshof van der Meersch.
9
  See European Court of Human Rights, Sporrong and Lonnroth v. Sweden (1982) Series A No. 52
(Art. 50); Pine Valley Developments Ltd v. Ireland (1991) Series A No. 222 (Art. 50); Papamichalopoulos
v. Greece (1993) Series A No. 260B.
10
  Rules of Procedure of the Inter-American Court of Human Rights, LXXXV Regular Period of
Sessions, 16–18 November 2009, art. 35(1)(g).
260 Procedural Issues

include the request for the reparation in the application. The amount of the reparation
and the evidence relating thereto may be submitted subsequently within the time limit
set by the Court (Rule 34(5)). Rule 63 provides that the Court may rule on reparations
at the same time as the merits or in a subsequent separate judgment.

8.1  Temporal Jurisdiction

The resolution of an international claim requires a determination of the law appli-
cable to events at the time they occurred. International dispute resolution tribunals
have expressed the notion of inter-temporality, that the rights and duties of parties are
determined by the law in force at the time a claim arises.11 In the Advisory Opinion on
Namibia,12 the ICJ took an evolutionary approach to legal obligations, finding that
the terms of the Mandate over South-West Africa ‘were not static, but were by defini-
tion evolutionary, as also, therefore, was the concept of the sacred trust. The parties
to the Covenant must consequently be deemed to have accepted them as such’. Thus,
interpretation of the agreement at issue was not governed by the law of 1919, but by
developments in the subsequent half-century. The Court was clear that ‘an international
instrument has to be interpreted and applied within the framework of the entire legal
system prevailing at the time of interpretation’. Thus, original intent is not conclusive on
the rights and duties of the parties.13
In 1975, the Institut de Droit International adopted a resolution on intertemporality
in public international law.14 The resolution confirms that states and other subjects of
international law have the power to determine the temporal sphere of the application of
norms. In the absence of a clear indication of the temporal scope of norms, the Institute
proposed that any rule which relates to the licit or illicit nature of a legal act shall apply
while the rule is in force, but any rule which relates to the continuous effects of a legal
act shall apply to effects produced while the rule is in force, even if the act has been per-
formed prior to the entry into force of the rule. Thus, the legality or illegality of histori-
cal events must be judged according to the law in force at the time in question, but the
continuing effects of these events can be judged by more recent standards.
Most national and international courts will presume non-retroactivity of treaty obli-
gations,15 but they may ‘find’ a new rule to govern prior conduct where necessary to
resolve a dispute.16 Implicit in the presumption of non-retroactivity is the notion of
fundamental fairness, the idea that individuals may legitimately rely on legal norms in

11
  Island of Palmas Case (United States v. the Netherlands), 1928 2 RIAA 829.
12
  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa), notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) 1971 ICJ Rep. 16.
13
  The ICJ applied the same evolutionary approach to interpreting the bilateral agreement between
Hungary and Slovakia in the Gabčikovo-Nagymaros Project. Case Concerning the Gabčikovo-Nagymaros
Project (Hungary v. Slovakia), 1997 ICJ Rep. 92.
14
  ‘The Inter-temporal Problem in Public International Law’, Resolution adopted by the Institut de
Droit International at its Wiesbaden Session, (1975) 56 Ann. De l’Institut de Droit Int’l 537.
15
  See e.g. ‘Retroactivity and Administrative Rulemaking’ (1991) Duke L.J. 106.
16
  See e.g. Trail Smelter Case (U.S. v. Canada), 1941 3 RIAA 1911 acknowledging that ‘No case of air
pollution dealt with by an international tribunal has been brought to the attention of the Tribunal nor
does the Tribunal know of any such case. The nearest analogy is that of water pollution. But, here also,
no decision of an international tribunal has been cited or has been found’. Despite this lack of precedent,
the Tribunal was able to determine that Canada was liable for damage caused by the lawful activities of
the Trail Smelter drawing upon analogies from inter-state cases in federal states.
 Presentation of Claims 261

force:17 ‘Elementary considerations of fairness dictate that individuals should have an

opportunity to know what the law is and to conform their conduct accordingly; settled
expectations should not be lightly disrupted. For that reason, the principle that the legal
effect of conduct should ordinarily be assessed under the law that existed when the con-
duct took place has timeless and universal appeal’.18 Yet, reliance may not be legitimate
if the rule is openly contested, in transition, or patently unjust.19
In practice, human rights tribunals can only redress proven violations, which in
turn may be dictated by the temporal limits of jurisdiction. The human rights obliga-
tions of a state commence with the emergence of a rule of customary international law
or when a particular treaty enters into force for the state. Application of the rule of
non-retroactivity can exclude or limit many claims from the jurisdiction of international
tribunals. Human rights tribunals sometimes struggle to determine when particular vio-
lations have occurred; in doing so they have developed a doctrine of ‘continuing viola-
tions’ to address the current failure of states to afford remedies or take other actions in
response to past violations. The initial acts may have occurred decades ago and some
historical violations for which claims are made took place in the past century or before.
Notably, most of these older claims have been resolved, if at all, through political pro-
cesses rather than through litigation.

8.1.1 Continuing violations
The notion of ‘continuing violations’ has mitigated the effect of the rule against retroac-
tivity, as has the independent requirement that a remedy be provided even for violations
that took place prior to entry into force of a human rights treaty.20 Cases where the effects
of the event in question extend into the period covered by the complaint mechanism are
often considered continuing violations.21 The notion of ‘continuing violations’ allows
those representing victims of such violations to invoke international jurisdiction even
when the original wrongful act preceded acceptance of the treaty in question. The duty
to investigate and, where appropriate, prosecute and punish criminal violations is a con-
tinuing obligation.
In Simunek v. The Czech Republic,22 the Human Rights Committee considered sev-
eral petitions involving the confiscation and subsequent sale of property in the former
Czechoslovakia. The confiscations occurred before the Optional Protocol took effect for
the Czech Republic, but the Committee concluded that the complaints focused on the
discriminatory effect of limiting the statutory right to restitution to resident nationals.23
The Committee regarded the restitution law as an ‘affirmation’ of the discriminatory acts
of the old regime, and thus a continuing violation.

17
  Richard H. Fallon, Jr and Daniel J. Meltzer, ‘New Law, Non-Retroactivity, and Constitutional
Remedies’ (1991) 104 Harv. L. Rev. 1733.
18
 See Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994).
19
  See D.J. Meltzer, ‘Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs
and Defendants as Private Attorneys General’ (1988) 88 Colum. L. Rev. 247.
20
  See e.g. Inter-American Commission on Human Rights, Res. 74/90, Case 9850 (Argentina),
4 Oct. 1990, Ann. Rep. Inter-Am. Comm’n Hum. Rts. 1990–1, OEA/Ser.L/V/II.79 rev. 1, doc. 12,
22 Feb. 1991.
21
  Human Rights Committee, Machado v. Uruguay, Communication No. 83/1981, HRC Report,
Annex VII.
22
  Prochazka v.  The Czech Republic, Communication No. 516/1992, UN Doc. CCPR/C/54/D/
516/1992 (1995).
23
  Prochazka, supra n. 22, para. 4.3.
262 Procedural Issues

For parties to the European and American Conventions, the rights contained in the
treaties are protected in relation to all events which occur after the entry into force of
the agreement for the state in question, including continuing violations that may have
begun prior to that date.24 In these systems, the factual question may involve deter-
mining the date of the violation. In Stamoulakatos v. Greece (No. 1),25 the Court held
that a case is inadmissible when the claim is closely related to and consequent upon
events that occurred prior to the effective date of the Convention for the state. Where
defects in criminal proceedings occur after ratification, however, it is not a bar that the
crimes themselves were committed previously.26 For property deprivations, the question
is whether the taking is an instantaneous act with continuing effects or whether it pro-
duces a continuing situation due to restitution programs instituted post-ratification.27
Also affecting the scope of remedies and even the finding of a violation are the Court’s
decisions concerning the length of proceedings which began pre-ratification and remain
without resolution afterwards.28
In the Inter-American system, the Rio Negro case29 involved massacres occurring
before the state’s acceptance of the Court’s jurisdiction and the judgment distributed
token material damages to individuals. However, the state was also held responsible for
the forced disappearance of seventeen identified persons whose remains had not yet been
recovered at the time of litigation. Guatemala was held fully liable for continuing viola-
tions of the right to life of these disappeared persons and the court ordered $30,000 for
material and moral damages on the claims.30
In Blake v. Guatemala (Reparations),31 the amount of damages was limited because the
deprivation of liberty and death of Blake were determined to be outside the Court’s juris-
diction ratione temporis, occurring before Guatemala accepted the Court’s jurisdiction.
The Court found that it could only determine reparations based on Guatemala’s failure
to provide a remedy in contravention of Articles 8(1) and 1(1), a continuing violation,
and a breach of Article 5, the right to physical and moral integrity, due to the on-going
lack of knowledge about the disappeared. As a consequence, the Court denied pecuni-
ary damages based on the loss of life and awarded only costs and expenses incurred in
attempting to discover what had happened to Blake. It also awarded moral damages to
the family.
The decisions of the African Commission also include the notion of continuing
violations.32

24
 See:  Joost Pauwelyn, ‘The Concept of a “Continuing Violation” of an International
Obligation:  Selected Problems’, (1995) 66 Brit. YB Int’l L. 415; Rosalyn Higgins, ‘Time and the
Law:  International Perspectives on an Old Problem’, (1997) 46 Int’l & Comp. L.Q.; Alan Nissel,
‘Continuing Crimes in the Rome Statute’, (2004) 25 Mich. J. Int’l L. 653, 665–668.
25
  European Court of Human Rights, Stamoulakatos v. Greece (No. 1) (1993) Series A No. 271; 17
EHRR 479.
26
  European Court of Human Rights, Zana v. Turkey (1997) ECtHR 1997-VII; 27 EHRR 667.
See Blecic v. Croatia [GC] (2996) ECtHR 2006-III, para. 82, for a discussion of the relevant date when
judicial proceedings occur partly prior to and partly after ratification.
27
  See e.g. European Court of Human Rights, Broniowski v. Poland [GC] (2002) ECtHR 2002-X.
28
  European Court of Human Rights, Styranowski v. Poland (1998) ECtHR 1998-VIII; Proszak
v. Poland (1997) ECtHR 1997-VIII; Foti and Others v. Italy, (1982) Series A No. 56.
29
 Inter-American Court of Human Rights, Rio Negro Massacres v.  Guatemala (Preliminary
Objection, merits, reparations and costs) (2012) Series C No. 250.
30
 Ibid.
31
  Inter-American Court of Human Rights, Blake v. Guatemala (Reparations) (1998) Series C No. 48.
32
  See e.g. African Commission on Human Rights, Muthuthurin Njoka v. Kenya, Comm. 142/94,
8th Annual Activity Report 1996-97 (1995), 13; Annette Pagnoulle on behalf of Abdoulaye Mazou
v. Cameroon, Comm. No. 39/90 (1997).
 Presentation of Claims 263

8.1.2 Historical injustices
Claims of historical injustices generally involve survivors or descendants of groups of
people targeted for their identity, subjected to genocide, slavery, forced conversions, tor-
ture or mass expulsions. For many individuals, the consequences of these past injustices
are borne in contemporary society and remain evident in discrimination, marginaliza-
tion, or economic disadvantage. Past abuses can give rise to recurring cycles of violence
and to current conflicts. At the least, they leave a legacy of discontent and alienation,
stimulating claims for redress, despite procedural barriers like statutes of limitations and
the principle against non-retroactivity of the law.
The proliferation of current redress claims for historical injustices may represent a
global tribute to the strength of human rights law and/or the fact that success induces
emulation.33 German efforts to confront the Holocaust have set a standard for remedy-
ing the past that various groups have invoked, including those who were omitted from
post-War reparations programs. Throughout the world, states and societies are being
asked to account for historic abuses and provide redress to victims or their descendants.
The United Nations Conference on Racism, held in Durban in 2001, debated the issue
of reparations for slavery and colonialism.34 Other recent or current claims include those
of Native Americans in the United States and Canada, aboriginal peoples in Australia
and New Zealand, diamond miners and other victims of apartheid in South Africa, and
the families of disappeared persons in Latin America, Europe, and North Africa.
Legal actions for historical injustices face the problem that in law, as a precondition,
there must be a legal wrong. Marjorie Whiteman observed that the term ‘damages’ pre-
supposes the existence of an international claim based upon a wrongful act or omission.35
Nonetheless historical injustice claims have been brought, based on alleged violations
of human rights law, state responsibility for injury to aliens, breaches of humanitarian
law, violations of constitutional law, or acts contrary to national legislation such as theft,
murder, or other personal injury. Equitable claims have asserted unjust enrichment or a
similar doctrine. Where such claims succeed, forms of reparations can include apologies,
prosecutions, commemorations, memorials, rehabilitation, compensation, affirmative
action, restitution, land reform, law reform, and various types of truth commissions.
Japanese Americans, for example, long sought and finally received reparations for
their wrongful internment in the United States during the Second World War, in the
process developing philosophical, legal, and political arguments for redress.36 The even-
tual United States’ apology and compensation inspired reparations movements around
the world. Japanese Canadians asked the Canadian government for redress, apology,
and the revision of history books with regard to their Second World War relocation and

33
  According to the editor of a recent book on slave reparations, the success of some groups in obtain-
ing reparations may be viewed as discriminatory by others who do not receive reparations for their
injustices. See: Raymond A. Winbush (ed.), Should America Pay? Slavery and the Raging Debate on
Reparations (New York, 2003), 1. In Winbush’s view, discrimination is ‘not only a common occur-
rence, but is firmly rooted in international law’: ibid. Chris K. Iijima posits that Japanese-Americans
received reparations as a ‘model minority’ and lesson to other groups. See Chris K. Iijima, ‘Reparations
and the ‘Model Minority’ Ideology of Acquiescence: The Necessity to Refuse the Return to Original
Humiliation’ (1998) 40 B.C. L. Rev. 385.
34
  The World Conference against Racism, Durban, South Africa, 30 Aug. 2001–7 Sept. 2001, pursu-
ant to UNGA 52/111, http://www.un.org/WCAR/e-kit/backgrounder1.htm.
35
  Marjorie Whiteman, Damages in International Law ([1937], 1978), i, 6.
36
  See, generally, Eric Yamamoto et al., Race, Rights and Reparation: Law and the Japanese American
Internment (Gaithersburg, 2001).
264 Procedural Issues

detention.37 Italian Canadians have done the same. Women who were forcibly detained
to provide sex for the Japanese military continue to demand redress.38 Former prisoners
of war and civilians have also sought compensation for the forced labour they performed
in Germany and Japan. Going even further into history, Canadian Ukrainians want
remedies for the First World War detention of about 5,000 Ukrainian Canadians.
The success of some lawsuits and negotiations in obtaining reparations for histori-
cal injustices has stimulated other groups. In June 2002, a $50 billion class action suit
was filed against Citigroup, Union Bank of Switzerland, and Credit Suisse on behalf of
victims of South African apartheid.39 Armenians seek reimbursement of the insurance
proceeds paid by their deceased relatives on policies that were not honoured. Eight con-
solidated lawsuits were brought against insurance companies, shipbuilders and railroads
on behalf of a class of slave descendants who assert that the companies unjustly profited
from slave labour. The consolidated action, ultimately dismissed, sought an accounting,
constructive trust, restitution, disgorgement and compensatory and punitive damages.40
The procedural barriers are significant. To take the example of cases against Japan
stemming from the Second World War, Japanese courts have proven unsympathetic and
actions cannot be brought against Japan elsewhere because of its sovereign immunity.41
Signatories to the 1951 Treaty of Peace could reopen the issue of reparations on the basis
of the most favoured nation clause, Article 26 of the Treaty of Peace, which provides that
‘Should Japan make a peace settlement or war claims settlement with any State grant-
ing that State greater advantages than those provided by the present Treaty, those same
advantages shall be extended to the parties to the present Treaty’.42 Japan paid repara-
tions pursuant to provisions of post-war bilateral treaties it concluded with Sweden,
Spain, Burma, Denmark, the Netherlands and Russia. The most favoured nation clause
thus could allow reparations claims to be made by other signatories to the 1951 Treaty
of Peace. On the other hand, it is unlikely that private individuals have any standing to
assert the treaty rights of the states parties.
On the merits, Japan had treaty obligations prohibiting forced labour and sex
trafficking.43 Based on these agreements, the Federation of Korean Trade Unions

37
  See Maryka Omatsu, Bittersweet Passage:  Redress and the Japanese Canadian Experience (Toronto,
1992).
38
  During the Second World War, Japan abducted an estimated 100,000 to 200,000 women who
were forced into sexual servitude for the Japanese Imperial Army throughout Asia. The large majority
of the women were Korean, but others came from China, Taiwan, the Philippines, Malaysia and the
Netherlands. Lawsuits have been filed in Japan, the Philippines and the United States. For a discussion
of the various claims, see Yoshimi Yoshiaki, Comfort Women: Sexual Slavery in the Japanese Military dur-
ing World War II (New York, 2000); Ton Yu, ‘Reparations for Former Comfort Women of World War
II’ (1995) 36 Harv. Int’l L.J. 528.
39
  In all, some ten separate actions have been filed against numerous corporate defendants. See In re
South African Apartheid Litigation, 238 F.Supp.2d 1379 (2002) (consolidating actions and transferring
them to the Southern District of New York).
40
 See In re African-American Slave Descendants Litigation, 231 F.Supp.2d 1357 (2002); 471 F.3d
754, 763 (7th Cir. 2006). For a discussion of the case, see: Christina E. Lutz, ‘The Death Knell Tolls for
Reparations in In re African-American Slave Descendants Litigation’ (2008) 3 Seventh Circuit Rev. 532,
available at http://www.kentlaw.edu/7cr/v3-2/lutz.pdf.
41
 In Hwang Geum Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003), the federal court of appeals held
that the ‘commercial activity’ exception to the Foreign Sovereign Immunities Act should not be given
retroactive effect because of the ‘settled expectations’ of sovereign states prior to 1952. Contrast the
Altmann judgment, infra n. 124.
42
  Treaty of Peace with Japan (ratified 8 September 1951, entered into force 28 April 1952).
43
  In 1925 Japan ratified the International Convention for the Suppression of the Traffic in Women
and Children (1921) 9 LNTS 415; the International Agreement for the Suppression of the White Slave
Traffic (1904) 35 Stat. 1979, 1 LNTS 83; and the International Convention for the Suppression of the
White Slave Traffic of 1910, 211 Consol. T.S. 45, as reaffirmed in 1921. Japan was not a party to the
Convention to Suppress the Slave Trade and Slavery (1926) 46 Stat. 2183, 60 LNTS 253.
 Presentation of Claims 265

requested the International Labour Organization to rule that ‘comfort women’ were
forced labourers. The ILO Committee of Experts agreed, despite Japanese contentions
that the agreements did not apply to ‘colonial territories’ such as occupied Korea.44
Other relevant treaties include the 1929 Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armies in the Field, whose Article 3 entitles
prisoners of war to respect for their persons and honour, and specifically guarantees that
women are to be treated with all consideration due to their sex. Unlike the other cases
discussed in this section, the claims against Japan involve few problems of evidence,
retroactivity of law, and identification of claimants or perpetrators. Many of the victims
are still alive, humanitarian law protection for civilians and prisoners of war was well
established before the Second World War, and slavery was outlawed by treaty and cus-
tomary international law. The acts were committed by government agents and as part of
government policy. As historic injustices, these claims remain current.
Outside of the wartime context, descendants of Acadians expelled from Nova Scotia
prepared a petition for presentation to the British government for reparations.45 The
Herero of Namibia have sought reparations for the genocide that took place a century
ago.46 The President of Germany asserted in 1998 that no international law existed at
the time under which ethnic minorities of a state could get reparations,47 seeming to
suggest either that genocide as part of colonialism was legal, or that ethnic minorities at
the time lacked standing to present a claim.48 Hereros base their reparations claim on the
prohibition of genocide and breaches of the laws of war, citing the Hague Convention
of 1899. The Herero pursued their claim for redress by filing an unsuccessful lawsuit
against German companies Deutsche Bank, Terex Corporation and Woermann Line in
the United States federal court for the District of Columbia. The complaint asked US$2
billion from the companies, asserting that they were allied with imperial Germany in
the Herero War.49

44
 See ILO, Report of the Committee of Experts on the Application of Conventions and
Recommendations, Forced Labour Convention, 1930 (No. 29), Observation 2000. The Committee
found that the ‘unacceptable abuses’ should give rise to appropriate compensation, but noted that it
had no power to order relief. The Committee also recognized that as a matter of law, the compensation
issues had been settled by treaty, but noted ‘developments’ in how claims for compensation are handled,
including a resolution of the UN Sub-Commission on Human Rights expressing its view that ‘the rights
and obligations of States and of individuals … cannot, as a matter of international law, be extinguished
by treaty, peace agreement, amnesty or by any other means’. UN Doc. E/CN.4/Sub.2/RES 1999/16.
45
  See Warren A. Perrin, ‘The Petition to Obtain an Apology for the Acadian Deportation’ (1999) 27
Southern University L. Rev. 1.
46
 Sidney L.  Harring, ‘German Reparations to the Herero Nation:  An Assertion of Herero
Nationhood in the Path of Namibian Development?’ (2002) 104 W. Va. L. Rev. 393. Arbitrary seizures
of their lands initially led to an uprising by the Herero, in response to which the German General
Lothar Von Trotha issued a proclamation on 2 Oct. 1904, ordering all Herero men killed and all their
lands and cattle seized. Some Herero were sent to prison camps where they were subjected to eugenic
experiments and torture. Women and children were driven into the Kalahari desert where they died of
mass starvation. Only a few thousand persons escaped to become refugees in what is now Botswana.
Most of the traditional Herero lands today remain in the hands of German colonial descendants and are
the mainstay of Namibian agriculture: ibid 397–8. See also Helmut Bley, Namibia Under German Rule
(Hamburg, 1999); John Bridgeman, The Revolt of the Hereros (Berkeley, 1981); Horst Drechsler, Let Us
Die Fighting: The Struggle of the Herero and Nama against German Imperialism (Berlin, 1966); Thomas
Pakenham, The Scramble for Africa (New York, 1991), ch. 33.
47
 Harring, supra n. 46, 406. Note, however, that even the German Chancellor at the time of the
genocide, Count von Bulow, called the extermination order a ‘crime against humanity’.
48
  Hague Convention II with Respect to the Laws and Customs of War by Land, 29 July 1899, Art. 2.
49
  Christopher Munnion, ‘Namibian Tribe Sues Germany for Genocide’, filed 31 Jan. 2003, avail-
able at http://www.telegraph.co.uk/news/main.jhtml?xml=news/2003/01/31/wherer31.xml. The case
was originally filed in the Superior Court of the District of Columbia, but the case was removed to the
US District Court for the District of Columbia. The case was dismissed on 11 Jun. 2004 for failure to
266 Procedural Issues

One of the most widespread discussions of reparations for historical injustices con-
cerns slavery and colonialism. Reparations for slavery in the United States and else-
where have been claimed and offered since well before emancipation.50 At the end of the
US civil war there were about 4.5 million slaves of African origin in the US who were
promised forty acres of land and a mule,51 but were subjected instead to disenfranchise-
ment and de jure discrimination during the following century. Issues of race continue to
divide people in the US, where the descendants of slaves today number about 35 million
persons. Many among these descendants are seeking redress, including by filing claims
against individuals and companies for an accounting of their profits and of the assets
acquired exploiting slave labour.52
Abolition of the African slave trade took hold only at the beginning of the nineteenth
century in the United States (1808), the Netherlands (1814), and France (1815). The
1814 Treaty of Ghent between the United States and Great Britain53 made clear the
moral and increasingly legal opposition to the slave trade, stating ‘Whereas the traf-
fic in slaves is irreconcilable with the principles of humanity and justice and whereas
both His Majesty and the United States are desirous of continuing their efforts to pro-
mote its entire abolition, it is hereby agreed that both the contracting parties shall use
their best endeavors to accomplish so desirable an objective’. In 1815, the Congress
of Vienna annexed a Declaration of the Eight Courts (Austria, France, Great Britain,
Portugal, Prussia, Russia, Spain and Sweden) relative to the Universal Abolition of the
Slave Trade.54 The Declaration called slavery ‘repugnant to the principles of humanity
and universal morality’ but stopped short of declaring a legal ban. It was not until 1862,
that the United States and Great Britain took effective action to enforce the ban by sign-
ing the Treaty for the Suppression of the African Slave Trade.55
The General Act of Berlin of 1885 became the first multilateral instrument banning
the slave trade.56 Five years later the General Act for the Repression of the African Slave
Trade57 was signed and the two agreements provided for cooperation to suppress the

state an actionable claim. The Herero People’s Reparations Corporation, et al. v. Deutsche Bank, A.G. and
Woermann Line, d/b/a Deutsche Afrika–Linien GmbH & Co., D.C. Cir., 11 June 2004. The plaintiffs
appealed to the US Supreme Court, which declined to hear the case. Other federal cases were similarly
dismissed. See: Hereros et al. v. Deutsche Afrika-Linien GmbH & Co., 3rd Cir., 10 Apr. 2007.
50
  In 1774, Thomas Paine proposed reparations for the injuries caused by ‘the wickedness of the
slave trade’, Archive of Thomas Paine, Thomas Paine: African Slavery in America, available at http://
www.mediapro.net/cdadesign/paine/afri.html>. For more recent proposals, see Bruno Bittker, The Case
for Black Reparations (New York, 1973); Randall Robinson, The Debt: What America Owes to Blacks
(New York, 2000). Between 1890 and 1917, over 600,000 of the four million emancipated slaves in
the United States applied for pensions from the government on the basis that their labour subsidized
the wealth of the nation. They formed the Ex-slave Mutual Relief, Bounty and Pension Association and
lobbied without success for 26 years. See Christopher Hitchens, ‘Debt of Honor’, in Winbush, supra
n. 33, 171.
51
  The phrase and the promise come from General William Tecumseh Sherman’s Special Field Order
No. 15 of 16 Jan. 1865. Hitchens, supra n. 33,174.
52
  Vern E.  Smith, ‘Debating the Wages of Slavery’, Newsweek, 27 Aug. 2001, 20. In Congress,
Representative John Conyers, first introduced the Reparations Study Bill (HR 40) in 1989. He has
renewed the proposal in each subsequent session of Congress.
53
  Treaty of Peace, 24 Dec. 1814, Gr. Brit.–U.S., Art. 10, 8 Stat. 218, 63 Consol. T.S. 421.
54
  Declaration (Vienna, 8 Feb. 1815) Annexed to the General Treaty of the Congress (Annex VI to
the Treaty of Vienna), 3 Consol. T.S. 473.
55
  Treaty for the Suppression of the African Slave Trade (7 Apr. 1862), U.S.–Gr. Brit, 12 Stat. 1225,
T.S. No. 126.
56
  The General Act of the Conference of Berlin Concerning the Congo, 26 Feb. 1885, 10 Martens
Nouveau Recueil (ser. 2) 414, reprinted in (1909) 3 Am. J. Int’l L. 7.
57
  General Act for the Repression of the African Slave Trade, 2 July 1890, 27 Stat. 886, T.S. No. 383,
1 Bevans 134.
 Presentation of Claims 267

slave trade, while acknowledging that slavery remained legal under the domestic law
of some states.58 Only in 1926 did the international community fully agree to abol-
ish the slave trade (defined as every act of trade or transport in slaves) and slavery with
adoption of the Convention to Suppress the Slave Trade and Slavery.59 It required states
parties to adopt all appropriate measures with a view to preventing and suppressing the
embarkation, disembarkation and transport of slaves in their territorial waters and upon
all vessels flying their respective flags.60 Thus, slavery became illegal under international
law slowly and in piecemeal fashion, starting over a century after the transatlantic slave
trade began and as a result of opposition that existed from the start and grew stronger
over time.
Given the long period of slavery and the slave trade, the numbers and the abuses
involved, it is not surprising that its legacy has been one of racism, apartheid, segrega-
tion and denials of civil rights.61 These are ongoing harms that cannot be separated from
the earlier practice of slavery, which commodified a race of human beings and denied
their humanity. The failure to afford reparations led to an intergenerational heritage of
deprivation from which, scholars have argued, arises a duty to provide redress that con-
tinues as long as the consequences of those violations scar a community.62 Governments,
however, have shown hostility to affirmative action as a means of rehabilitation or reme-
diation for past and present discrimination.63 As a result many slave descendants lack
adequate education, safe and decent housing, full participation in the political process,
and equal economic opportunity.
While slavery and the slave trade may have been private enterprises they were con-
doned by governments which later ensured the continuation of second-class citizen-
ship through statutes, ordinances, and other official actions of racial segregation and
discrimination that built on the racist justifications for slavery. It is also worth noting
that slave taxes are said to have provided more revenue for US state, local, and national
governments from Colonial times to the Civil War than any other revenue source.64
Those who oppose slave reparations assert that the violations occurred too long ago,
and were remedied through emancipation, civil rights legislation and affirmative action.
An argument frequently made is that the costs of implementing redress would be exces-
sively high. However, ‘[f ]‌or many Africans and African Americans … slavery remains
an unhealed wound that is frequently, if not constantly, reopened by feelings of contin-
ued oppression, manipulation, and discrimination’.65 These competing understandings
mean that it may be necessary to balance the equities to reconcile public and private
needs, while recognizing that the results of that process are likely to differ according to
who is doing the balancing.
States and governments have responded in varying ways to the proliferating claims
to redress historical injustices. A prevalent action in recent years has been the issuance

58
 Art. LXII.
59
  Convention to Suppress the Slave Trade and Slavery (1926) 46 Stat. 2183, 60 LNTS 253.
60
  Ibid, Arts. 1(2), 3.
61
  Watson Branch, ‘Reparations for Slavery: A Dream Deferred’ (2002) 3 San Diego Int’l L.J. 177.
62
  Jon van Dyke, ‘Reparations for the Descendants of American Slaves under International Law’, in
Winbush, supra n. 33, 58.
63
 See Cedric Merlin Powell, ‘Blinded by Color:  The New Equal Protection, the Second
Deconstruction, and Affirmative Inaction’ (1997) 51 U. Miami L. Rev. 191; Rose Mary Wummel,
‘Escaping the Dead Hand of the Past: The Need for Retroactive Application of the Civil Rights Act of
1991’ (1993) 19 J. Legis. 223.
64
  Kevin Outterson, ‘Slave Taxes’, in Winbush, supra n. 33, 135.
65
  Ryan Michael Spitzer, ‘The African Holocaust:  Should Europe Pay Reparations to Africa for
Colonialism and Slavery?’ (2002) 35 Vand. J. Transnat’l L. 1313.
268 Procedural Issues

of a formal apology for past acts.66 In 1992, President Chirac acknowledged French
complicity in the deportation of 76,000 Jews of French nationality to death camps.67 He
also apologized to the descendants of Alfred Dreyfus and Emile Zola for the treatment
afforded the two men.68 British Prime Minister Tony Blair acknowledged an English
role in the Irish potato famine. Benin and Ghana apologized for their roles in the slave
trade.69 Businesses and churches, too, have issued apologies, including the March 2000
apology of Aetna Insurance Company for issuing insurance policies to slave-holders
on the lives of their slaves.70 Pope John Paul II apologized for past injustices commit-
ted by the Catholic Church71 while the Southern Baptists apologized for their former
pro-slavery stance.72
Indigenous groups also have received apologies. On 8 September 2000, the direc-
tor of the US Bureau of Indian Affairs formally apologized for the agency’s participa-
tion in the clearing of western tribes.73 The United Methodist Church in the United
States apologized to Native Americans in the state of Wyoming for a massacre led by a
Methodist minister.74 Queen Elizabeth II apologized to the Maoris of New Zealand. In
1993, on the centenary of the conquest of the Kingdom of Hawaii, the United States
Congress passed Public Law 103–150, known as the Apology Bill, which states: ‘the
indigenous Hawaiian people never directly relinquished their claims to their inherent
sovereignty as a people or over their national lands to the United States, either through
their monarchy or through a plebiscite or referendum’.75 The measure goes on to express
the commitment of Congress to acknowledge the ramifications of the overthrow of the
Kingdom of Hawaii. In October 1997, the King of Norway apologized to indigenous
Sami people for harm experienced under the earlier Norwegian policy of assimilation
and a further apology was issued by the Prime Minister in December 1999. Similarly, in
Denmark, in September 1999, the Prime Minister apologized to Inuit people displaced
from northern Greenland in the 1950s.
Apology can serve different purposes. It can acknowledge the suffering of others, as
when expressing sorrow over the death of a loved one (‘I am sorry for your loss’). It can

66
  See Michael Cunningham, ‘Saying Sorry: The Politics of Apology’, in The Political Quarterly, 1999,
285; Mark Gibney and Erik Roxstrom, ‘The Status of State Apologies’ (2001) 23 Hum. Rts. Q. 911.
67
  Paul Taylor, ‘France Finally Admits Role in Aiding Nazi Death Machine’, Chicago Sun-Times
17 July 1995, 20.
68
  Nicolas Mills, ‘The New Culture of Apology’, Dissent Magazine (Fall, 2001), 113, 114.
69
  Jeffrey Ghannam, ‘Repairing the Past’, ABA Journal, Nov. 2000, 39.
70
  The companies may have been responding to legislative action. In 2000, the state of California
enacted a law requiring insurance companies to reveal the existence of any policies issued on slaves’ lives.
Cal. Ins. Code, ss. 13811–13 (West 2001). Eight companies, including Aetna, reported such policies
and provided the names of 614 insured slaves. The City Council of Los Angeles voted unanimously on
17 May 2003 to draft a law requiring every company doing business with the city to report whether
it ever earned profits from slavery. ‘Los Angeles to Draft Law Revealing Business Links to Slavery’,
New York Times, 18 May 2003.
71
  See ‘Memory and Reconciliation: The Church and the Faults of the Past. International Theo­
logical Commission’ available at www.vatican.va/roman_curia/congregations/cfaith/cti_documents/
rc_concfaith_20000307_memory-reconcitc_en.html>.
72
 Mills, supra n. 68, 113.
73
  Remarks of Kevin Gover, Assistant Secretary, Indian Affairs, Department of the Interior, at the
Ceremony Acknowledging the 175th Anniversary of the Establishment of the BIA (8 Sept. 2000). In
1830, Congress passed the Indian Removal Act to force all Native Americans to relocate west of the
Mississippi River. As a result of forced relocation, killings, assimilation, and sterilization the estimated
population of 10 million Native Americans at European arrival has declined to approximately 2.4 mil-
lion. Lindsay Glauner, ‘The Need for Accountability and Reparation: 1830–1976: The United States
Government’s Role in the Promotion, Implementation and Execution of the Crime of Genocide against
Native Americans’, Symposium: The End of Adolescence, (2002) 51 DePaul L. Rev. 911.
74
 Mills, supra n. 68, 113. 75
  US Public Law 103-150, 103d Congress (1993).
 Presentation of Claims 269

express regret and solidarity over events that are outside the control of the speaker (‘I
am really sorry about the miserable weather we are having’). It can also be an acceptance
of fault leading to redress (‘I am sorry I lost your book’). It is only in the last instance
that apology may carry with it legal implications, establishing a causal link between the
action of the speaker and the injury suffered. The possibility that an apology may serve
to buttress legal claims can make government officials reluctant to express regret over
historical injustices. Former US President George W. Bush, for example, called the trans-
atlantic slave trade ‘one of the greatest crimes of history’, but avoided issuing an apology
for it.76 In contrast, the US Congress’s Apology Bill for Hawaii contains language that
effectively acknowledges Hawaii’s right of self-determination. In many circumstances,
the exact meaning of apology and the sincerity with which an apology is given are diffi-
cult to discern. Unless the sincerity and meaning are clear, apology may exacerbate rather
than mitigate the sense of injury resulting from historical injustices.
Compensation for historical injustices has occurred in some instances. The United
States and Canada compensated their nationals of Japanese ancestry for their internment
during the Second World War.77 Japanese-American redress came after unsuccessful liti-
gation and intense lobbying in Congress. Ultimately, during the nation’s bicentennial,
President Gerald Ford repealed the Executive Order of internment.78 A study commis-
sion followed and led to passage of the Civil Liberties Act of 1988, which committed
the US president to apologize to former internees and established a trust fund of $1.25
billion for reparations payments of $20,000 to each surviving internee.79
Five US Native American groups have successfully recovered monetary compensa-
tion,80 as did indigenous groups in Norway and Denmark.81 In March 2003, the US
Supreme Court upheld a 1999 federal court decision awarding damages to Native
Americans for trust fund mismanagement by the US Departments of the Interior and
Treasury.82 The fund had been established in the 1830s to compensate Native Americans
for earlier injustices, including deprivation of land. Elsewhere, Swedish inquiry into a
eugenics program conducted prior to 1941 that sterilized those deemed ‘unfit’ to repro-
duce, a high proportion of them being travellers or Gypsies, recommended a compen-
sation package amounting to 175,000 Swedish crowns to anyone forcibly sterilized.83

76
  BBC News World Edition, 8 July 2003.
77
  On the US actions, see Civil Liberties Act of 1988, 50 U.S.C. § 1989. See also ‘Symposium: Racial
Reparations:  Japanese American Redress and African American Claims’ (1998) 40 Boston Coll.
L. Rev. 477.
78
  Proclamation 4417, ‘An American Promise’, FR Doc. 76-5141, 41 Fed. Reg. 35, 20 Feb. 1976.
79
 Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied,
Part 2: Recommendations (1983). Each payment made was accompanied by a letter from President
George H. Bush which stated in part:
‘A monetary sum and words alone cannot restore lost years or erase painful memories; neither
can they fully convey our Nation’s resolve to rectify injustice and to uphold the rights of
individuals. We can never fully right the wrongs of the past. But we can take a clear stand for
justice and recognize that serious injustices were done to Japanese Americans during World
War II’. Yamamoto, supra n. 36, 401.
80
  The five tribes are: the Klamaths of Oregon, the Sioux of South Dakota, the Seminoles of Florida
and the Chippewas of Wisconsin, and the Ottowas of Michigan.
81
  Norway announced a collective compensation fund in Jan. 2000, aimed at promoting indigenous
language and culture. Denmark established a collective compensation fund following a Danish High
Court order in Aug. 2000.
82
  United States v.  White Mountain Apace Tribe, 123 S.Ct. 1126 (4 Mar. 2003). See also Cobell
v. Norton, 240 F.3d 1081 (C.A.D.C., 2001) (23 Feb. 2001).
83
  See D. Porter, ‘Eugenics and the Sterilization Debate in Sweden and Britain before World War II’
(1999) 24 Scandinavian J. History 145.
270 Procedural Issues

Norway similarly authorized compensation of 10,000 crowns to persons lobotomized

between 1940 and 1948.84 In October 2000 Austria established a $380 million fund to
compensate individuals forced into slave labour during the Second World War.85
Among recent successful claims, on 6 June 2013, following four years of litigation,
the UK government acknowledged human rights abuses including torture inflicted by
the colonial administration on prisoners in Kenya between 1952 and 1960. In 2009, a
group of elderly Kenyan victims of torture filed a claim against the British Government.
The 2013 settlement included a compensation payment of £19.9m to more than 5,000
survivors as well as UK funding of a memorial in Nairobi to the Kenyan victims of
colonial era torture. Foreign Secretary William Hague expressed in Parliament his ‘sin-
cere regret’ while reiterating that the British government does not consider itself liable
for acts committed under colonial rule. In October 2012, the High Court rejected the
Government’s argument that the survivors’ claims were time-barred under English law.86
Governments have rejected some claims. Japan has refused to give an official apology
or make reparations to the Second World War sex slaves, arguing non-retroactivity of the
law and rejecting the assertion that the women were de facto slaves.87 Japan admitted only
in January 1992 that women had been used in official brothels during the Second World
War.88 The Australian government has denied reparations to members of the ‘Stolen
Generations’ of aboriginal children taken from their families as part of a government
assimilationist policy, despite recommendations for an apology and compensation con-
tained in the government-commissioned official report on the matter.89 The report also
recommended provision of counselling services and family reunification.90 The govern-
ment has insisted that the removals were not ‘gross’ human rights violations, therefore
no reparations are due. Even if they were, the government argues that there is no legal
obligation to provide reparations because current UN principles on reparations are non-
binding. Like the Japanese government, the Australian authorities also rely on a tempo-
ral argument, that human rights law of today should not be applied retroactively. Efforts
by victims to establish liability through the Australian courts have been unsuccessful.91
Such issues of historical injustice have emerged only recently in international human
rights bodies and meetings. In 1992 the Organization of African Unity appointed a
‘Group of Eminent Persons’ with a mandate ‘to explore the modalities and strategies of
an African campaign for restitution similar to the compensation paid by Germany to

84
  Barbara Ann Kocking, ‘Confronting the Possible Eugenics of the Past through Modern Pressures
for Compensation’ (2001) 69 Nordic J. Int’l L. 501.
85
  AP Newswire, 6 Oct. 2000.
86
  Mutua and Others v. The Foreign and Commonwealth Office, [2012] EWHC 2678 (QB).
87
  See report of Special Rapporteur G. McDougall, UN EXCOR Comm. on Human Rights, 50th
Sess., Prov. Agenda Item 6, at para. 4, UN Doc. E/CN.4/Sub.2/1998/13 (1998). For actions taken to
press the reparations claim, see Christine M. Chinkin, ‘Women’s International Tribunal on Japanese
Military Sexual Slavery’ (2001) 95 Am. J. Int’l L. 335.
88
  M. Igarashi, ‘Post-War Compensation Cases’ (2000) 43 Jap. Ann. of Int’l L. 45, at 49.
89
 Kocking, supra n.  84. See also Regina Graycar, ‘Compensation for Stolen Children:  Political
Judgments and Community Values’ (1998) 21 Univ. N.S.W. L.J. 253. Litigation for compensation over
the Stolen Generations has been unsuccessful: ibid 504.
90
  The report made the recommendations under traditional headings of reparations: restitution,
rehabilitation, compensation, apology (satisfaction) and compensation. For the national report,
see Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres
Strait Islander Children from Their Families (NISATSIC) (Sydney, Australia:  Human Rights and
Equal Opportunity Commission, 1997), available at https://www.humanrights.gov.au/our-work/
aboriginal-and-torres-strait-islander-social-justice/publications/bringing-them-home-stolen.
91
 See Kruger & Ors v. The Commonwealth of Australia; Bray & Ors v. The Commonwealth of Australia,
High Ct. Aus., [1995] 146 ALR 126; Williams v. Minister Aboriginal Land Rights Act 1983 and Anor.
[1999] NSWSC 843; Cubillo and Gunner v. Commonwealth [2001] FCA 1213.
 Presentation of Claims 271

Israel and to survivors of the Nazi Holocaust’.92 Subsequently, at the African Regional
Preparatory Conference for the 2001 UN Conference on Racism, African states asked
for historical justice, laying stress on the right to financial compensation; the second rec-
ommendation of the Preparatory Conference called for ‘an International Compensation
Scheme for victims of the slave trade, as well as victims of any other transnational racist
policies and acts’.93
Two of the main themes announced for the Durban Conference were: (1) the treat-
ment of victims of racism, racial discrimination and intolerance; and (2) creation of
effective remedies, recourse, redress and other measures at all levels of governance. The
European preparatory conference for Durban said that ‘suffering caused by slavery or
which arose from colonialism must be remembered’.94 The preparatory meeting of the
Americas produced a commitment to action to alleviate inequalities that still persist
because of the legacy of slavery. The measures pledged include making additional invest-
ments in basic social services such as health care, education, public health, electricity,
drinking water, and environmental control; improving access to justice; and overcoming
stereotypes. Another paragraph proved divisive in
acknowledg[ing] that the enslavement and other forms of servitude of Africans and their descend-
ants and of the indigenous peoples of the Americas, as well as the slave trade, were morally repre-
hensible, in some cases constituted crimes under domestic law and, if they occurred today, would
constitute crimes under international law
and accepting that
these practices resulted in substantial and lasting economic, political and cultural damage to these
peoples and that justice now requires substantial national and international efforts to repair such
damage. Such reparation should be in the form of policies, programmes and measures adopted by
the States which benefited materially from these practices, and designed to rectify the economic,
cultural and political damage, which inflict the affected communities and peoples.95
The Asian Preparatory Conference, held in Teheran, forthrightly recognized that
‘States which pursued policies or practices based on racial or national superiority, such as
colonial or other forms of alien domination or foreign occupation, slavery, the slave trade
and ethnic cleansing, should assume responsibility therefore and compensate the victims
of such policies and practices’.96 At the final preparatory conference of all regions, the US

92
  Ali A. Mazrui, ‘Who Should Pay for Slavery?’ 40 World Press Review 22 (Aug. 1993).
93
  Declaration of the African Regional Preparatory Conference for the World Conference against
Racism, Racial Discrimination, Xenophobia and Related Intolerance, WCR/CONF/DAKAR/2001/L.1
REV 3 (24 Jan. 2001). Paragraph 20 of the report reads: ‘States which pursued racist policies or acts of
racial discrimination such as slavery and colonialism should assume their moral, economic, political
and legal responsibilities within their national jurisdiction and before other appropriate international
mechanisms or jurisdiction and provide adequate reparation to those communities or individuals who,
individually or collectively, are victims of such racist policies or acts, regardless of when or by whom they
were committed’, 6, para. 20.
94
  Reports of Preparatory Meetings and Activities at the International, Regional and National Levels,
Final documents of the European Conference against Racism, Strasbourg, France, 11–13 Oct. 2000,
GAOR, Preparatory Comm., 2d Sess., Annex IV-V, UN Doc. A/CONF.189/PC.2/6 (2001).
95
 Report of Preparatory Meetings and Activities at the International, Regional and National
Levels, Report of the Regional Conference of the Americas, Santiago, Chile, 5–7 Dec. 2000, GAOR,
Preparatory Comm., 2nd Sess., Annex IV-V, UN Doc. A/CONF.189/PC.2/7 (2001), 14, para. 70.
Over the objections of Canada and the United States, the paragraph remained in the report.
96
  Reports of Preparatory Meetings and Activities at the International, Regional and National Levels,
Report of the Asian Preparatory Meeting (Teheran, 19–21 Feb. 2001), GAOR, Preparatory Comm.,
2nd Sess., UN Doc. A/CONF.189/PC.2/9 (2001), 11, para. 50.
272 Procedural Issues

proposed an expression of regret combined with a pledge to aid African countries in lieu
of an apology for slavery or reparations for descendants of slaves.
Reparations remained a divisive issue at the Durban Conference itself.97 The Western
Europe and Others group (including the EU, US, Canada, Australia, New Zealand
and Japan) opposed international reparations, while states of Africa, Latin America and
the Caribbean, and Asia sought agreement on compensation. Proponent states argued
that current underdevelopment is a direct consequence of slavery, the transatlantic slave
trade, and colonialism and the Conference therefore should promote a redistribution of
wealth away from those responsible in favour of the descendants of past wrongs. In the
end, the approved Durban Declaration and Programme of Action acknowledged that
slavery and the slave trade constitute a crime against humanity today and urge concerned
states to participate in compensation for its victims.98
The former UN Sub-Commission and Commission both took actions after the
Durban Conference to consider issues raised by that meeting, including the question of
reparations. In 2000, the Sub-Commission requested the Secretary-General to prepare
a working document relating to crimes against humanity during the colonial period,
wars of conquest and slavery, including means and proposals which could be adopted
in order to provide reparation to the victims of those violations and to honour their
memory.99 The Note by the Secretary-General, submitted to the 2001 session of the
Sub-Commission,100 reviewed the definitions of crimes against humanity and the work
being undertaken on reparations. The same session of the Sub-Commission adopted
Resolution 2001/1 concerning cases of human rights violations ‘which should be con-
sidered as crimes against humanity’ resulting from slavery, colonialism and wars of
conquest. In the resolution, the Sub-Commission considered that it is not possible to
combat racism and racial discrimination without taking into account the ‘deep wounds
of the past’ and also considered that the relevant states should formally recognize and
make reparation based on their historic responsibility for colonialism and slavery. This
recognition should include material aspects such as rehabilitation of the dignity of the
peoples affected, active cooperation in development such as development assistance,
debt cancellation, technology transfers and restoration of cultural objects. In its opera-
tive paragraphs, the resolution called for initiatives to assist in raising public awareness
of the issue, reflect on appropriate procedures for guaranteeing implementation of the
resolution, and continued consideration of the issue.
The UN Commission on Human Rights followed up the Durban Conference by
appointing a Working Group of Experts on People of African Descent, over the opposi-
tion of the Western Group.101 The opposition meant that for the first time, a Working
Group of the UN was created with only four members. The mandate of the Working

97
  See Marc Bossuyt and Stef Vandeginste, ‘The Issue of Reparations for Slavery and Colonialism
and the Durban World Conference against Racism’ (2001) 22 HRLJ 341.
98
  Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related
Intolerance, Durban 31 Aug.–8 Sept. 2001, GAOR, 5–27, UN Doc. A/CONF.189/12 (2002). For
a critical view of the Conference, see Christopher N. Camponovo, ‘Disaster in Durban: The United
Nations World Conference against Racism, Racial Discrimination, Xenophobia, and Related
Intolerance’ (2003) 34 Geo. Wash. Int’l L. Rev. 659.
99
  Sub-Commission on the Promotion and Protection of Human Rights, Decision 2000/114.
100
 Sub-Commission on the Promotion and Protection of Human Rights, Administration of
Justice: Mass and Flagrant Violations of Human Rights which Constitute Crimes against Humanity and
which took place during the Colonial Period, Wars of Conquest and Slavery, Note by the Secretary-General,
E/CN.4/2001/8, 28 June 2001.
101
  Commission on Human Rights, Res. 2002/68, approved by Economic and Social Council Res.
2002/270.
 Presentation of Claims 273

Group did not mention the issue of reparations for slavery, but the issue came up in
discussions and provoked debate from its first session in November 2002.102 One of the
main issues on the agenda of the working group was the necessity of measures to ensure
full and effective access to the justice system by people of African descent.
At the second session of the Working Group, the observer of China called the reluc-
tance and refusal to pay reparations to people of African descent a manifestation of
racial discrimination. A member of the Working Group commented on the need for
material reparations to undo the disadvantage and damage caused by the slave trade,
while the observer from Egypt said that reparations should focus not only on material
damages, but also examine apologies or national expressions of regret. Only Costa Rica
spoke against including the issue of reparations on the agenda of the Working Group,
stating that it exceeded the mandate of the Working Group and was a controversial issue
at Durban that should not be reopened. According to a paper prepared by one of the
Working Group, ‘[w]‌hat emerged from Durban, even though the word “reparations”
does not appear in the final documents, is a form of silent consensus that reparations
for slavery is in harmony with the simple sense of justice and with the basic tenets of
international law’.103
In July 2013, the Heads of Government of the Caribbean Community (CARICOM)
agreed to establish a National Reparations Committee in each Member State, with the
Chair of each Committee sitting on a CARICOM Reparations Commission. The Chair
of the Community said the call for reparations is an integral element in CARICOM’s
development strategy because it recognized that the legacy of slavery and colonialism
in the Caribbean severely impaired the Region’s development options. Reparations had
to be directed toward repairing the damage inflicted. In March 2014, the governments
approved a ten-point plan for reparations proposed by the CARICOM commission. It
seeks reparatory justice for the region’s indigenous and African descendant communities
who are claimed as victims of Crimes against Humanity [CAH] in the forms of geno-
cide, slavery, slave trading, and racial apartheid. The CRC formulated the CARICOM
Reparations Justice Program [CRJP], asserting that victims and descendants of these
CAH have a legal right to reparatory justice, and that those who committed these crimes,
and who have been enriched by the proceeds of these crimes, have a reparatory case to
answer. The CRJP recognizes the special role and status of European governments in
this regard, being the legal bodies that instituted the framework for developing and
sustaining these crimes. These governments, furthermore, served as the primary agen-
cies through which slave-based enrichment took place, and as national custodians of
criminally accumulated wealth.
The ten point plan begins with apology and includes thereafter repatriation and reset-
tlement of those wishing to return to their ancestral homes; an indigenous development
program for the descendants of the indigenous Caribe peoples; creation of Caribbean
museums and institutions concerned with crimes against humanity; addressing the
chronic health conditions of slave descendants in the region; contributions to the work
to eliminate illiteracy; creation of an ‘Africa knowledge program;’ psychological reha-
bilitation through educational programs and dissemination of the truth; technology
transfer; and debt cancellation. In July 2014, the Chair of the CARICOM reparations
committee addressed the British House of Commons, while that same month during

102
  Report of the Working Group of Experts on People of African Descent on its first and second
sessions, E/CN.4/2003/21, 25 Feb. 2003.
103
  Dr Georges Jabbour, Some Personal Thoughts on Reparations and People of African Descent, Working
Paper, E/CN.4/2003/WG.20/WP.1, 28 Jan. 2003.
274 Procedural Issues

the Thirty-Fifth Conference of Heads of Government, held in Antigua and Barbuda 1–4
July 2014, the CARICOM Heads agreed to dispatch a Draft Notice of Complaint on
Reparations to the relevant European Governments, with a request that a Conference
be held on the issue.
It must be noted that nearly all instances of reparations for historical injustices,
whether in the form of an apology, in land or money, have come about through nego-
tiations or the political process, rather than through pressing legal claims.104 A US case
claiming reparations for slavery, for example, resulted in a decision that damages due
to enslavement and subsequent discrimination should be addressed to the legislature,
rather than to the judiciary. The court was unable to find ‘any legally cognizable basis’ for
recognizing the claim,105 distinguishing Native American claims because the latter were
based upon treaties between nations. Similarly, in Japan, a reparations claim by South
Korean women who had been held as sex slaves during the Second World War failed
in the Hiroshima High Court on the basis that it lacked legal foundation.106 Another
case brought by forty-six former sex slaves from the Philippines claimed that the acts of
Japan violated the laws of war and that Japan had committed crimes against humanity as
defined in the IMT Charter107 and the Convention on the Prevention and Punishment
of the Crime of Genocide.108 The Tokyo District Court held on 6 December 2000, that
the concept of crimes against humanity was not established in international law at the
time of the acts alleged.109 A lawsuit brought in a United States District Court by fifteen
Asian women against Japan was similarly dismissed. The court’s holding that the claims
were barred by sovereign immunity was upheld on appeal.110
Proponents argue that reparations should be afforded for historical injustices, first,
because some acts were illegal under national or international law at the time they
were committed. The victims have been unable to secure redress for political reasons,
because evidence was concealed, or because procedural barriers have prevented them
from presenting claims. In such circumstances, they argue that lapse of time should
not prevent reparation for harm caused by the illegal conduct. Indigenous groups in
the United States, for example, note that the government’s ‘relations with Indian tribes
have devolved from legal recognition of their sovereignty to forced relocation, geno-
cide, internment, imposition of a guardian–ward relationship, forced assimilation and
underdevelopment, and now limited self-government under the shadow of the power of
Congress to legally terminate their existence’.111

104
 After Korematsu v. United States, 323 U.S. 214 (1944) litigation was unsuccessful in seeking
redress. It came through the Civil Liberties Act of 1988. See Roger Daniels, Sandra Taylor and Harry
Kitano, Japanese Americans: From Relocation to Redress (1986) and Mitchell T. Maki, Harry H. Kitano
and Megan S.  Berthold, Achieving the Impossible Dream:  How Japanese Americans Obtained Redress
(1999).
105
  Cato v. United States, 70 F.3d 1103 1105 (9th Cir. 1995).
106
  A 1998 ruling of the Shimonoseki Branch of the Yamaguchi District Court ordering nominal
compensation was overturned in March 2001 by the Hiroshima High Court (BBC News, 29 Mar. 2001).
107
  Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis Powers and Charter of the International Military Tribunal, London, 8 Aug. 1945, 59 Stat. 1544,
82 UNTS 279.
108
  Convention on the Prevention and Punishment of the Crime of Genocide, New York (9 Dec.
1948) 78 UNTS 277.
109
  See ‘Comfort Women’, Japan Forum Archive, available at https://www.warhistoryonline.com/
tag/comfort-women. Interestingly, however, as early as 1904 the Imperial Chancellor, Count von
Bulow, called the extermination order issued respecting the Herero a ‘crime against humanity’. See the
letter from Bulow to Kaiser Wilhem II, 24 Nov. 1904, quoted in Drechsler, supra n. 46, 164.
110
  Hwang Geum Joo v. Japan, supra n. 41.
111
  William Bradford, ‘With a Very Great Blame on Our Hearts: Reparations, Reconciliation, and an
American Indian Plea for Peace with Justice’(2002-2003) 27 Am. Indian L. Rev. 1 (2002-2003), n.57.
 Presentation of Claims 275

Second, states, communities, businesses and individuals have unjustly profited from
many of the abuses, garnering wealth at the expense of the victims. The economic dis-
parities created have continued over generations, often becoming more pronounced
over time. It is thus contended that those who were unjustly enriched from slavery and
apartheid, for example, should disgorge the wealth they accumulated in favour of those
deprived of fair wages and their inheritance. As one author has put it: ‘… not seeking
financial restitution, in the face of documented proof that financial giants worldwide
are sitting on billions of dollars in funds made on the backs of … victims, which they
then invested and reinvested many times over …, amounts to an injustice that cannot
be ignored’.112
Third, most examples of historical injustices have a compelling moral dimension
because the events took place during or after the emergence of the concept of basic guar-
antees of human rights to which all persons are equally entitled.113 Payment of damages
is a symbol of moral condemnation of the abuses that occurred. Although not generally
recognized in international law until after the Second World War, human rights were
positive law in states in Europe and North America by the end of the eighteenth cen-
tury, and at least partially recognized in other countries from the same period. By the
end of the nineteenth century, international humanitarian law prohibited most of the
twentieth-century abuses. Proponents argue that if human rights are truly inherent and
universal, then they apply not only territorially, but temporally and provide a basis to
judge past practices. They point to the often savage treatment meted out to victims of
historical injustices, in direct contravention of the stated norms, and to the lingering
consequences of these acts.
Proponents of reparations also reject the notion that present generations have no
responsibility for the past. They note that every individual is born into a society or
culture that has emerged over time and that shapes each person, making the past part
of the present and giving the society and individuals an historic identity. International
law, recognizing that institutions or collective entities such as states have continuity over
time, provides that a change of government does not absolve a state of responsibility for
wrongful conduct.114
Finally, apology is sought and supported because it acknowledges the suffering of
victims and the legacies of that suffering in contemporary society. The acknowledgement
in itself can be restorative and help promote better relations today. ‘The discourse of
universal human rights is tied directly to a politics of regret because its advocates believe
that only gestures of reparation, apology, and acknowledgment can restore the dignity
of history’s victims and can deter new outbreaks of inhumanity’.115 On a practical level,
‘[u]‌nrighted wrongs can leave victims uncompensated, under-deter harmful conduct,
and foster social resentment’.116

See also Nell Jessup Newton, ‘Indian Claims in the Courts of the Conqueror’, 41 Am. U.L. Rev. 753
(1992); Robert T. Coulter in Rethinking Indian Law 103 (New Haven: Advocate Press, Inc., 1982).
112
  Michael Bayzler, ‘The Holocaust Restitution Movement in Comparative Perspective’ (2002) 20
Berkeley J. Int’l L. 11, 41.
113
  Jeffrey K. Olick and Brenda Coughlin, ‘The Politics of Regret: Analytical Frames’, in J. Torpey
(ed.), Politics and the Past (Lanham, 2003), 37.
114
  In the Distomo Massacre Case, BGH—III ZR 245/98 (26 June 2003), the German Supreme
Court found that, in general, Germany can be liable for compensation claims as the legal successor of
the German Reich.
115
  Olick and Coughlin, supra n. 113, 42.
116
  ‘Symposium: Debates over Group Litigation in Comparative Perspective: What Can We Learn
from Each Other?’ (2001) 11 Duke J. Comp. & Int’l L. 157, 158.
276 Procedural Issues

The most common objection to reparations for historical injustices is the general
principle of non-retroactivity of the law. This ground of opposition assumes, of course,
that the acts were lawful at the time they were committed. The passage of time also raises
the problem of long-passed statutes of limitations or laches and the fact that intervening
events and contingencies can obscure the causes of harm.117 Statutes of limitations and
laches doctrines are deemed to promote efficiency and certainty by ensuring that claims
are fresh and reasonably connected in time and space to a particular act. The older the
claim, the more problematic it is to resolve.
The identities of the parties also create difficulties according to opponents of repara-
tions. Whether the defendant is a state or private party, the notion of personal respon-
sibility, including a ban on bills of attainder in the common law, means it is unjust
to require individuals or companies today to pay for the acts of their predecessors.118
Opponents also note that in many instances not only are living perpetrators absent, but
there are no present day victims of temporally distant violations. In terms of standing
to present claims, some governments contend that international claims, such as for war
reparations, can only be presented by other states. Moreover, in foreign domestic courts,
states generally are afforded sovereign immunity from suit.
Other legal hurdles include proving that present harm was caused by past abuses and
determining compensation or other appropriate remedies. In some instances, oppo-
nents point to existing laws protecting human rights and affirmative action, calling these
reparative in aim and effect. Others view reparations for historical injustices as the tri-
umph of a victim psychology that blames everyone else for today’s problems, saying that
‘[w]‌hat is alarming is the extent to which so many minorities have come to define them-
selves above all as historical victims’.119 When a community bases its communal identity
almost entirely on the sentimental solidarity of remembered victimhood, it may give rise
to recurring cycles of violence and turn victims into perpetrators.
Opponents of reparations for slavery and colonialism introduce other objections.
Some human rights advocates contend that combating slavery and slave-like practices
of human trafficking today is more important than reparations for historical slavery.120
Respecting the claims of African states, historians note that Africans were actively
engaged and complicit in slavery, as were other areas of the world for millennia.121 Arabs,
Chinese and Malays engaged in the slave trade on the eastern shore of Africa. No causal
relationship therefore can be shown between conditions in Africa today and European
actions.122 Even assuming a causal relationship, debt relief, development funds, and
improved access to international markets—which are being promoted—arguably

117
  Aviam Soifer, ‘Redress, Progress and the Benchmark Problem’ (1998) 40 B.C. L. Rev. 525.
118
  See, e.g., the comments of Representative Henry Hyde, Republican member of the United States
Congress: ‘The notion of collective guilt for what people did (200 plus) years ago, that this generation
should pay a debt for that generation, is an idea whose time has gone. I never owned a slave. I never
oppressed anybody. I don’t know that I should have to pay for someone who did generations before I was
born’. Kevin Merida, ‘Did Freedom Alone Pay a Nation’s Debt? Rep. John Conyers Jr Has a Question.
He’s Willing to Wait a Long Time for the Right Answer’, Washington Post, 23 Nov. 1999, C1.
119
  Elazar Barkan, ‘Restitution and Amending Historical Injustices in International Morality’ in
Torpey, supra n. 113, 91, 92.
120
  Slavery continues today in many parts of Africa (Cameroon, Cote d’Ivoire, Mauritania, Nigeria,
Somalia, South Africa, Sudan, Ethiopia, Ghana, Niger, Mali, Morocco, Sierra Leone, Togo and Uganda).
See US Department of State, Country Reports on Human Rights Practices. Bonded labour is common
in areas of Asia and Latin America, while sex slave trafficking is widespread in Europe.
121
  See Milton Metzler, Slavery: A World History (New York, 1993), ii, 27–32.
122
 Rhoda E.  Howard-Hassmann, ‘Moral Integrity and Reparations for Africa’, Human Rights
Working Papers No. 16, posted 27 Sept. 2001, available at http://www.labourstudies.mcmaster.ca/
institute-on-globalization-and-the-human-condition/documents/IGHC-WPS_02-1_Hassmann.pdf.
 Presentation of Claims 277

provide more appropriate redress than would lump sum payments to sometimes unrep-
resentative governments. Any redress for historical injustices should also be discounted
by historical benefits conferred upon African states. Another objection made is that the
descendants of African slaves mostly live outside Africa today and if reparations are due
to anyone, they are due to the families of former slaves and not to African states.
In sum, international and national legal doctrine thus suggests that historical claims
may warrant reparations in two circumstances. First, when the acts were illegal at the
time committed and no reparations have been afforded.123 Second, retroactive remedies
may be justified where reliance on the earlier law was not reasonable and expectations
were not settled because the law patently conflicted with fundamental principles then in
force.124 If the only bar to recovery was procedural and the law has changed to open the
courthouse door, the new law should apply to events that occurred earlier as well as after
enactment of the law.
Historical injustices can involve legal claims for violations of national or interna-
tional law at the time they were committed. Cases involving unlawful acts present fewer
problems than do historical injustices based on actions that were lawful at the time they
were done. In the latter instances, the question of whether or not to give retroactive effect
to the law and afford reparations involves a balancing of the equities, the strength of the
claims, the need for reconciliation, and the practicalities of devising appropriate repara-
tions between appropriate entities and persons. When it is clear that there was consider-
able debate over the morality or legality of historical acts, it may be appropriate to award
reparations because reliance on the law at the time probably was not justified. Those
acting would have had some notice of the likelihood of change bringing the law into
conformity with basic constitutional principles and emerging norms of human rights.
Experience, thus far, suggests that the resolution of claims that lack a firm legal foun-
dation may still take place through the political process. Many factors will affect the
likelihood of reparations being afforded for past injustices, most of them linked to the
amount of time that has passed. First, it is more likely that reparations will be afforded
if the perpetrators are identifiable and still living. Similarly and secondly, the victims
should be identifiable and mostly still alive or their immediate descendants present.
The size of the group will affect the amount, if not the fact of reparations: the larger the
group and its claim, the more difficult it is to obtain redress. Thirdly, demands for repa-
rations will probably only succeed with political pressure and strong, cohesive support
by the victims themselves. Perhaps most importantly, the substance of the claim must
be one that presents a compelling human injustice that is well documented. The claim
will be even stronger where there is continued harm and a causal connection between
present harm and the past injustice. The claims of Japanese Americans and Japanese
Canadians to reparations for their Second World War internment succeeded in part
because: (1) the evidence was clear—there was a specific executive order and enforce-
ment of it led to harm; (2) existing law was violated; (3) the provable facts showed the
violation of law; (4) the claimants were easily identifiable individuals who were not too

123
  Traditionally states could, and often did, renounce claims on behalf of their nationals in time of
war and peace. With the widespread recognition of the right to a remedy as a human right, it is open
to question whether such waivers continue to be valid in international law without alternative means
of redress.
124
  See e.g. Altmann v. Republic of Austria, 317 F.3d 954 (2002) (giving retroactive application to
the expropriation exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3) on the
ground that Austria could not have had any settled expectation that the State Department would have
recommended immunity for the wrongful appropriation of Jewish property in the 1930s and 1940s).
278 Procedural Issues

numerous; (5) causation between the act and harm was easy to show; (6) damages were fixed
and limited; and finally (7) payment meant finality.125
To most claimants, reparation is a moral issue involving a formal acknowledgement of
historical wrong, recognition of continuing injury, and commitment to redress. Reparations
are pursued because they are powerful acts that can challenge assumptions underlying past
and present social arrangements. At the same time, they must avoid ‘entrenched victim
status, image distortion, mainstream backlash, interminority friction and status quo
enhancement’.126 A key issue is to determine what solutions to past abuses are most likely to
provide a secure future while affording justice to the victims of the abuse. The alternatives
range from doing nothing to a full social welfare or insurance system or public and private
compensation or other assistance.
At their best, reparations may involve restructuring the relationships that gave rise to
the underlying grievance, addressing root problems leading to abuse and systemic oppres-
sion.127 This brings the notion of reparations close to the current idea of restorative justice as
a potentially transformative social action. It also provides a reason why legislatures may be
better suited to determine reparations: they are not bound by precedent and legal doctrine,
but can fashion equitable remedies. Remedies thus become part of a healing process that
may avoid the creation of future historical injustices.128

8.2  Redressable Injury
The two types of damage recognized by human rights bodies are material or pecuniary and
moral or immaterial damage. The former may include losses actually sustained as a result of
the violation and those that are prospective as well,129 although the latter may be excluded if
they are deemed too speculative. As discussed in Chapter 11, moral damage includes pain
and suffering, humiliation, dignitary harm, and loss of reputation. Satisfaction also may
be indicated for these types of injuries. The Inter-American Court has articulated a new
heading of damages referred to as the ‘life project’ or ‘proyecto de vida’ 130 described as the ‘full
self-actualization of the person’ that was interrupted by the violation.131
Redressable injury may be considered in part based on cultural values. In Bámaca
Velásquez v.  Guatemala, the Inter-American Court’s first indigenous disappearance
case,132 the Court found multiple violations of the victim’s rights133 and based its reme-
dial orders in part on Bámaca’s Mayan heritage.134 It found that a central objective of the
125
  Eric Yamamoto, ‘Racial Reparations: Japanese American Redress and African American Claims’
(1998) 40 B.C. L. Rev. 477.
126
 Ibid.
127
  Ibid. Yamamoto criticizes the view of reparations as forward looking and is sceptical of their
potential for creating a new social arrangement, but he also rejects the notion that they are irrelevant to
the process.
128
  See M. Ratner, ‘New Democracies, Old Atrocities: An Inquiry in International Law’ (1999) 87
Geo. L.J. 707; Carla Hesse and Robert Post (eds.), Human Rights in Political Transitions: Gettysburg to
Bosnia (New York, 1999); Ken Christie, The South African Truth Commission (New York, 2000), 44.
129
  Inter-American Court of Human Rights, Velasquez-Rodriguez v. Honduras (1989) Series C No. 7,
para. 49.
130
  Inter-American Court of Human Rights, Loayza Tamayo v. Peru, (reparations) (1998) Series C
No. 42, paras. 147–48.
131
  See also Inter-American Court of Human Rights, Gutierrez Soler v. Colombia (2005) Series C
No. 132, paras. 87–89.
132
  American Court of Human Rights, Bámaca-Velásquez v. Guatemala (2000) Series C No. 70.
133
  Ibid, para. 230.
134
 Inter-American Court of Human Rights, Bámaca-Velásquez v.  Guatemala, (2002) Series C
No. 91, para. 52.
 Presentation of Claims 279

petition was to locate Bámaca’s remains and conduct Mayan funeral ceremonies. The
Court directed Guatemala to take the victim’s remains to the place chosen by his next of
kin, at no cost to them,135 noting that ‘for the Mayan culture, Mam ethnic group, funeral
ceremonies ensure the possibility of the generations of the living, the deceased person,
and the deceased ancestors meeting anew’.136 In Escué-Zapata v. Colombia, concerning
the detention and execution of an indigenous leader,137 the Court took into account
that the relatives had to wait four years before the state delivered the remains of the vic-
tim, causing severe ‘moral and spiritual repercussions’ for them as members of the Nasa
culture.138 In the 2010 judgments of Fernández-Ortega et al.139 and Rosendo-Cantú,140 the
Court found that a public acceptance of responsibility was particularly important to the
community in question and required such a public act as part of the remedies granted.141
In another case142 the Court based its award in part on expert testimony that approxi-
mately thirty girls faced a dangerous, lengthy commute to school. The Court directed
the state to establish a community centre for the education and promotion of women’s
rights, ‘adapted to the indigenous community’s view of the world’.143

8.3  Causality and Evidence

Various standards of causation have been applied in both international and domestic
law, but the most common test appears to be one that requires that the harm be the
‘proximate cause’ of the loss. Proximate cause, in turn, makes use of foreseeability and
the temporal relationship between harm and loss to distinguish compensable from
non-compensable claims. In the ILC rules on state responsibility, Article 31 focuses on
direct harm, excluding injury that is too remote or indirect, whether the causation stems
from an act or an omission.144
In the European system, Article 41 does not refer to a causal link or standard of
proof. In practice, the Court strictly assesses the link between the violation found and
the claimed injury, with the result that many claims are denied. Claims for lost future
profits are often deemed ‘speculative’.145 In cases of procedural violations, the Court
rarely finds a causal connection between the breach and alleged pecuniary losses146
claiming that it cannot speculate as to what the outcome of the proceedings at issue

135
  Ibid, para. 82. 136
  Ibid, para. 81.
137
  Inter-American Court of Human Rights, Escué-Zapata v. Colombia (2007) Series C No. 165,
para. 38 (4 July 2007).
138
  Ibid, para. 153.
139
  Inter-American Court of Human Rights, Fernández-Ortega et al. v. Mexico (2010) Series C No.
215 (30 August 2010).
140
  Inter-American Court of Human Rights, Rosendo-Cantú v. Mexico (2010) Series C No. 216
(31 August 2010).
141
  Ibid, para. 244.
142
  Ibid, para. 270 (‘Regardless of the abovementioned, this measure can be complied with by the
State if it opts to install a high school in [Barranca Tecoani]’).
143
 Ibid.
144
  In the Corfu Channel case, for example, the ICJ held Albania responsible for failing to warn ships
of the existence of a minefield in its territorial waters. [1949] ICJ Rep. 4 (9 April 1949).
145
  European Court of Human Rights, Merit v. Ukraine (2004) Application No. 66561/01, paras.
81, 84; Seceleanu and others v. Romania (2010) Application No. 2915/02, para. 58.
146
  See, e.g. European Court of Human Rights, Basoukos v. Greece (2006) Application No 7544/04,
para. 22 and Bahnk v. Germany (2008) Application No. 10732/05, para. 54; but see Lechner and Hess
v. Austria (1987) Series A No. 118, 9 EHRR 490, para. 64; Martins Moreira v. Portugal, (1988) Series
A No. 14, 13 EHRR 517, para. 65.
280 Procedural Issues

might have been absent the procedural violation.147 The Court has also refused to find a
causal nexus between unlawful detention and the opportunity to earn a living,148 but in
other instances has awarded compensation for ‘lost opportunities’.149 The cases are not
consistent.150 As for moral damage, the Court requires a causal connection, although it
often appears to presume causality.151
The Inter-American Court has long held that reparations should have a causal nexus
with the facts of the case, the violations declared, the damage proved, and the measures
requested to redress the respective damage, and it must observe that these factors co-exist
in order to rule appropriately and pursuant to law.152 Recently, it has stated that pecuniary
damage supposes ‘loss or detriment to the income of the victims, the expenses incurred
based on the facts, and the consequences of a pecuniary nature that have a causal nexus
with the facts of the case’.153 Furthermore, in its case law, it has developed the concept of
non-pecuniary damage and has established that this ‘may include both the suffering and
difficulties caused to the direct victim and his next of kin, the impairment of values that
are very significant to the individual, as well as the changes of a non-pecuniary nature, in
the living conditions of the victims and their family’.154
In its judgments, the Court has declined to award damages where the causal connec-
tion cannot be shown. In the case of Suarez Peralta, the Court found that neither the
factual framework nor the analysis of the rights that were declared to have been violated
revealed a proven causal nexus between the victim’s failure to complete her studies and
the violations declared in the judgment. Taking this into account, the Court found it
inappropriate to establish a measure of reparation providing funds for the completion
of her university education.155 Similarly, in the Mémoli case, the Court observed that the
representatives merely argued that the victim’s income had been harmed by the viola-
tion; in the absence of evidence the Court declined to award pecuniary damages. With
regard to lost opportunities, the Court accepted that the violation could have had such
an impact, ‘[h]‌owever, in order to redress this loss of opportunity, it would be necessary
to show and prove, in pecuniary terms, the opportunity lost, as well as its causal relation-
ship to the violation declared, because it is not enough to affirm it in the abstract’.156
With no evidence, the Court declined to make an award.

147
  European Court of Human Rights, Stork v. Germany (2006) 43 EHRR 96, para. 50.
148
  European Court of Human Rights, Richert v. Poland (2011) Application No. 54809/07, paras.
63, 65 and Andreyev v. Estonia (2011) Application No. 42987/09, paras. 85, 88.
149
  European Court of Human Rights, F.E. v. France (1998) EHRR 1998-VIII, 29 EHRR, 591,
para. 63.
150
 Compare F.E. v. France, supra n. 149 with Elsholz v. Germany [GC] (2000) ECtHR 2000-VIII, 34
EHRR 58, paras. 70-71; T.P. and K.M. v. the United Kingdom [GC] (2001) ECtHR 2001-V, 34 EHRR
2, paras. 115-116; and Sabeh El Leil v. France [GC], 54 EHRR 14, paras. 46–68.
151
  Compare European Court of Human Rights, Andrejeva v. Latvia [GC] (2009), 51 EHRR 28,
para. 111 and Kadikis v. Latvia (no. 2) (2006) Application No. 62393/00, para. 67, with Halford v. the
United Kingdom (1997) ECtHR 1997-III, 24 EHRR 523.
152
  Inter-American Court of Human Rights, Case of Ticona Estrada v. Bolivia, (Merits, reparations
and costs) (2008) Series C No. 191, para. 110, and Case of the Massacre of Santo Domingo, Series C No.
259, para. 292.
153
  Inter-American Court of Human Rights, Bámaca Velásquez v. Guatemala (Reparations and costs)
(2002) Series C No. 91, para. 43, and Case of Nadege Dorzema et al. v. Dominican Republic (Merits,
Reparations and Costs) Series C No. 251, para. 281.
154
  Inter-American Court of Human Rights, Case of the ‘Street Children’ (Villagrán Morales et al.)
v.  Guatemala (Reparations and costs) (2001) Series C No. 77, para. 84; Suárez Peralta v.  Ecuador
(Preliminary objections, merits and reparations) (2013) Series C No. 261, para. 212.
155
  Suarez Peralta v. Ecuador, supra n. 154, para. 194.
156
  Inter-American Court of Human Rights, Case of Mémoli v. Argentina (Preliminary objections,
merits, reparations and costs) (2013) Series C No. 265, para. 216.
 Presentation of Claims 281

The Inter-American Court’s rules of procedure require parties to indicate the evidence
they will offer, at the first available opportunity, but the Court has repeatedly said that its
proceedings are not subject to the same formalities as those of a domestic court and that
particular attention must be paid to the circumstances of the specific case, respect for
legal certainty, and the equality of the parties. The importance of gathering and present-
ing evidence on reparations is demonstrated by the reparations judgment in the Cantoral
Benevides case.157 During the reparations phase, representatives of the victim submitted
some 106 documents, including a psychiatric report on the mental health of the victim.
The evidence showed that the mother and siblings also suffered injuries due to the treat-
ment of the son/brother. The Court recalled that its 2001 judgment held that ‘a victim’s
parent suffering can be presumed and must be compensated’ and that these facts showed
that the brothers were ‘not indifferent to his sufferings’.158 The Court remarked that the
new evidence presented was important to quantify reparations.
Although the presentation of evidence is thus essential to obtaining reparations,
the Cantoral Benevides case provides an example of the presumptions applied by the
Inter-American Court in its jurisprudence. Presumed damages have been held to include:
• moral injury to the direct victim (it is part of human nature to suffer from ill
treatment)
• moral injury to parents, spouse or permanent companion, and children. Sometimes
siblings and grandmother are also presumed to suffer damage, at other times it has
been proven. A greater amount has been given for minors, as they are especially
vulnerable persons
• compensation is required for violations of access to justice and judicial protection
• all persons who have been missing for many years are presumed dead
• all adults who receive income and have a family spend most of their income on
their family
• next of kin covers the costs of funerals
• every person carries out some productive activities and receives income equivalent
to the minimum legal wage of the country
• violations of human rights cause grief, anguish and sadness to victims and next
of kin.159
In the International Criminal Court, Rule 85(a) requires that an individual claim-
ing redress must have suffered harm ‘as a result of ’ a crime ‘within the jurisdiction of
the Court’, meaning that the ‘damage, loss and injury’ forming the basis of a claim for
reparations must have been caused by the crime or crimes for which the perpetrator was
convicted. The drafters of the Rules debated the standard of proof required for an award.
There seems to have been general agreement that the standard should be lower than
proof ‘beyond a reasonable doubt’, with various other formulations proposed, from ‘bal-
ance of probabilities’ to ‘more likely than not’. In the absence of consensus on any of the
proposals, the delegates left the question of proof, and the related question of causation
between the crime and the harm or damage sustained, to be established by the Court on
the principles referred to in Article 75(1).

157
  Cantoral Benevides Case (2001) Series C No. 88. 158
  Ibid, para. 37.
159
  See Inter-American Court of Human Rights, Del Caracazo v. Venezuela (Reparations) (2002)
Series C No. 95.
282 Procedural Issues

The ICC Chambers have wide discretion with regards to the evidence it may consider
in evaluating whether the standard has been met, and flexibility is necessary because evi-
dence will likely be difficult to obtain when the injury occurs during an armed conflict, a
widespread or systematic attack against a civilian population, or genocide. Moreover, as
in mass claims processes, requiring that a victim meticulously itemize and document the
extent of harm he or she suffered may raise expectations that the victim will receive full
redress, something that will nearly always be impossible to achieve in the context of the
ICC. In particular, Rule 94 makes clear that victims need only provide documentation
in support of a claim for reparations to the extent possible.160
Rule 97(2) permits the Trial Chamber to ‘appoint appropriate experts to assist it in
determining the scope, extent of any damage, loss and injury to, or in respect of vic-
tims and to suggest various options concerning the appropriate types and modalities
of reparations’.161 This may help in developing consistent case law based on interna-
tional standards of reparations. Experts may also provide assistance as to ‘the appropriate
types and modalities of reparations’ through consultation with the victim community.
According to one source, this provision allows the Court to rely on experts for a variety of
tasks—from ‘assessing the harm caused to individual victims, to suggesting schemes that
may benefit a whole community’—that ‘will often be difficult and time-consuming’.162

  Ibid, R. 94(1)(g).
160 161
  Ibid, R. 97(2).
  Report on the International Seminar on Victims’ Access to the International Criminal Court,
162

PCNICC/1999/WGRPE/INF/2, supra n. 14 (6 July 1999).

 PA RT  I V
T H E S U B S TA N C E O F R E D R E S S
 9
Declaratory Judgments

From the perspective of a defendant state, a declaratory judgment is the least intrusive
remedy that a tribunal can afford the victim of a human rights violation. If the state
concerned is committed to the rule of law, a declaratory judgment should be effective to
end the violation and prevent similar breaches in the future. In fact, for states committed
to upholding a treaty and fulfilling in good faith their obligations, the adjudication itself
may be of greatest significance, as Borchard noted:
The adjudication, not the command, is the essence of judicial power, and in our civilized com-
munities, it is the adjudication, and not the command, which evokes respect and official sanction,
because it is a determination by the societal agent appointed to perform that function, and thus
irrevocably fix legal relations.1
A binding judgment that the state is in breach of its obligations could even be viewed
as equivalent to an injunction, requiring a change in law or practice. The ILC Articles on
State Responsibility, Articles 29 and 30, make it clear that the breach of an international
obligation does not affect the continued duty of the responsible state to perform the
obligation; the state is required to cease the wrongful act, if it is continuing, and to offer
appropriate assurances and guarantees of non-repetition, if circumstances so require.
These obligations are inherent in the rule of law and do not form part of the remedies or
reparations that must be sought by the injured party. An authoritative pronouncement
from a tribunal that there has been a breach of an obligation attributable to the state is
thus quite important.
Declaratory judgments are the remedy most often granted in inter-state litigation.
States parties to cases before international courts and arbitral tribunals often request a
declaration of the applicable law and of their rights and duties, on the basis of which
they may negotiate a resolution of their dispute. Frequently, the conflict has caused no
measurable economic injury to either party and there may be no sense of wrongdoing or
injustice in the behaviour of the parties, for example, in many cases involving the deline-
ation of a land or maritime boundary. In other cases, the facts indicate that restitution
remains possible once the rights and duties are proclaimed, so the parties do not press for
measures of compensation or satisfaction.
When an inter-state dispute concerns an asserted norm of customary international law,
the declaratory judgment of the tribunal is particularly important in determining the exist-
ence and application of the rule. In the absence of negotiation or codification, a declaratory
judgment is the primary means of resolving questions about the existence or content of
customary international law; it is preferable to the use of coercive measures by one or more
states to impose a particular assertion of the disputed norm. Legal uncertainty thus can
be resolved by declaratory judgments and they may be useful in some human rights cases.
In national law, declaratory judgments are prevalent in both civil law and common
law legal systems. Equitable declaratory relief has been available in England since 1688
and in the USA such actions are permitted under the Federal Declaratory Judgment

1
  E. Borchard, Declaratory Judgments (1934), 10.
286 The Substance of Redress

Act, first passed by Congress in 1934.2 In France, the Conseil d’Etat and Conseils
d’Administration have the right to declare an administrative act void for exces de pouvoir.3
Declaratory judgments are particularly important in relations between the individual
and the government, where the judgment may avoid irreparable harm by establishing
the scope of state duties and the right of the individual not to be subjected to the threat-
ened injury, such as a planned extradition in violation of human rights guarantees or
prior censorship of a publication or broadcast. As Borchard asserts:
With the growing complexity of government and the constantly increasing invasions of private
liberty, with ever widening powers vested in administrative boards and officials, the occasions for
conflict and dispute are rapidly augmenting in frequency and importance.
Yet the very fact that such disputes turn mainly upon questions of law, involving the line marking
the boundary between private liberty and public restraint, between private privilege and immunity,
on the one hand, and public right and power, on the other, makes this field of controversy particu-
larly susceptible to the expeditious and pacifying ministrations of the declaratory judgment.4
There are clear advantages to an individual in being able to adjudicate the lawfulness
of a statute carrying criminal penalties, such as statutes criminalizing homosexuality,
without the necessity of violating the statute and risking the sanction. In addition, a
statute that is discriminatory or otherwise facially violates human rights injures those
within its purview as soon as it is enacted.5 To require a member of the affected group to
await enforcement of the statute or regulation before challenging its legality, ignores the
fact that as soon as the statute is in force unlawful limitations are placed upon individual
freedom of action. The declaratory judgment can also be useful when the violation is one
that is likely to be repeated or the situation is ongoing, for example, deprivation of the
right to vote or exclusion of disabled students from schools.
The importance of a determination that the state has violated internationally guar-
anteed human rights should not be underestimated. Governments violate human rights
and do not like to be called to account when they do so. Having a credible and authorita-
tive finding of the facts and a legal determination that the state violated the applicant’s
human rights establishes the truth of the allegations and vindicates the victim. It should
lead the state to alter its behaviour. Unfortunately, a declaratory judgment generally has
prospective effect only and, as such, it will rarely serve to redress the consequences of
the harm already suffered. In the example of exclusion of disabled students from school,
it is highly unlikely that a declaration will suffice to remedy all the harm caused by the
violation. International human rights tribunals may choose to leave the applicant with
a declaration, assuming that further domestic proceedings for damages or other repara-
tions are possible, or they may proceed to determine the nature and scope of redress

2
  Federal Declaratory Judgment Act, 28 U.S.C.A. § 2201 (West 1988).
3
  See L. Fanichi, La Justice Administrative (1980).
4
  E. Borchard, ‘Challenging “Penal” Statutes by Declaratory Action’ (1942) 52 Yale L.J. 445. In
politically sensitive cases, the United States Supreme Court has recognized that ‘a Court may grant
declaratory relief even though it chooses not to issue an injunction’:  Powell v.  McCormack, 395
U.S. 486 at 499 (1969) (reversing and remanding a case dismissed on the ground that the matter
involved a non-justiciable political question because it questioned whether the United States House of
Representatives could exclude a duly elected member). In various cases where state criminal prosecution
is threatened, but has not commenced, a declaratory judgment is permissible, even though constitu-
tional principles might preclude an injunction or render it impolitic: Steffel v. Thompson, 415 U.S. 452,
475 (1974). See D. Rendleman, ‘Prospective Remedies in Constitutional Adjudication’ (1976) 78 W.
Va. L. Rev. 155; D. Rendleman, ‘The Inadequate Remedy at Law Prerequisite for an Injunction’ (1981)
33 U.Fla.L.Rev. 346.
5
  European Court of Human Rights, Dudgeon v. United Kingdom (1981) Series A No. 45, (1982) 4
EHRR 149.
 Declaratory Judgments 287

due when restitution of the violated right is impossible. The latter is preferable, to avoid
the possibility that the victim will be without adequate remedies and thus deprived of
compensatory justice.
In state practice, courts generally have the power to declare rights, status, and other
legal relations, whether or not further relief is or could be claimed. Declarations merely
pronounce particular practices or conditions to be illegal, leaving officials free to choose
how to remedy the situation. As such, declaratory relief is normally used as an antici-
patory device to obtain a judgment before harm has occurred, when it is imminently
threatened. In Steffel v. Thompson,6 for example, declaratory relief was used to protect
free speech against threatened arrest. In an important citizenship case in Botswana, the
applicant sought and received a declaration that a section of the Botswana Citizenship
Act of 1984 improperly discriminated on the basis of sex and thereby was ultra vires.7
In most states, a declaratory judgment is not considered an adequate remedy after the
injury has taken place.
A declaration that the responding state has or has not violated a guaranteed right
or rights of the victim forms the heart of a judgment in all international human rights
complaint procedures. United Nations organs and the regional commissions issue such a
declaration as the basis for recommending measures that the state should take to remedy
a wrong. The recommendations can be very general recommendations, such as provid-
ing reparations, or may be more detailed as to the nature and scope of redress that should
be afforded.
Regional human rights courts judge the merits of a case by declaring that the appli-
cant’s rights have or have not been violated. The European Court often denies moral
damages by finding that the judgment of the state’s wrongdoing is adequate to afford just
satisfaction, even where the violation has already occurred and is ongoing. The European
Court has never stated any basis other than ‘equity’ for distinguishing cases where moral
damages are necessary from those where they are not. The declaratory judgment is thus
used as a retrospective remedial measure, not only to prevent harm. When this approach
is combined with a strict causality test for awards of pecuniary damages, the result is a
large number of European cases where the applicant wins on the merits but obtains no
redress other than some or all litigation expenses.
Some individual applicants seek only a statement of right, a clarification of the legality
of state action, and make no claim for monetary compensation or other redress, perhaps
because the declaratory judgment suffices to produce a favourable change in law or practice.
The European Court may have limited itself to declaratory judgments in the past because
in most cases the states concerned reported modifications in domestic law or practice to the
Committee of Ministers to remedy the violation found. The Court may have concluded
that the public purpose of upholding the treaty was sufficiently served. Even recently, a
Grand Chamber declared that ‘[i]‌n many cases where a law, procedure or practice has been
found to fall short of Convention standards this is enough to put matters right’.8
The Court may also have felt that many of the matters dealt with did not involve gov-
ernment misconduct serious enough to warrant an award of damages. Until relatively
recently, the cases brought to the Court generally did not involve loss of life, torture or
other gross abuses and the countries involved had relatively good human rights records.

6
  Steffel v. Thompson, 415 U.S. 451 (1974).
7
  In re Dow v. Attorney Gen. of Bots., Case No. Misc. A.124/90 (High Ct. 1991) (Bots.). The Court of
Appeal affirmed the judgment: Attorney Gen. v. Dow, Court of Appeal No. 4/91 (Ct. App. 1992) (Bots.).
8
  European Court of Human Rights, Varnava and others v.  Turkey [GC] (2009) 50 EHRR 21,
para. 224.
288 The Substance of Redress

This is no longer true and there seems to be some acknowledgement that more redress is
necessary in these cases.9 In any event, the denial of damages or other remedies should be
exceptional because a violation of human rights is ipso facto an infringement of the indi-
vidual’s moral dignity and demands a personal remedy, not simply a prospective change
in law or practice. It will be even more important to go beyond a mere declaratory judg-
ment in cases admitted under the new admissibility requirement that a violation must
have caused applicants to suffer a ‘significant disadvantage’. The injury thus required
should merit redress.
A study prepared by a Committee of Experts on improving the European Convention’s
procedures noted that it is generally accepted that judgments of the European Court are
binding, but merely establish that a violation of the Convention has taken place, leav-
ing it to the discretion of states to take the appropriate measures to comply with the
judgment. Where the violation emerges from a domestic judicial proceeding, this poses
problems unless national law allows the reopening of the proceeding. In many Article
6(1) cases, the Court seems to assume without assurances that a domestic case can be reo-
pened and will restore the victims’ rights.10 The Court also sometimes fails to award com-
pensation for non-pecuniary damage on the assumption that financial compensation is
possible under national law, while refusing to hold the case open in case compensation
is not provided.11 For an individual imprisoned, the ability to enforce the Strasbourg
judgment is crucial; compensation will not redress the unlawful deprivation of liberty.
Other violations also require compensation or non-monetary relief to afford redress.
The Convention is a ‘living instrument’ whose primary purpose is to ensure that the
states parties comply with European human rights standards. The obligations are owed
to individuals and not only to other states parties. National law could provide for the
reopening of national judicial proceedings where the declared violation occurred in the
context of a specific case. For some states this would avoid constitutional problems that
could arise if the European Court judgments were deemed self-executing (although
some might view the process as undermining respect for the principle of res judicata).
Other alternatives exist to give effect to the European Court’s judgment that a violation
has taken place.12 The Court could assist the national authorities by giving indications
about what constitutes adequate redress where restitution is impossible. Many elements

9
  ‘In appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from
the breach should in principle be available as part of the range of redress’ for a violation of rights.
European Court of Human Rights, T.P. and K.M. v. the United Kingdom [GC] (10 May 2001) ECtHR
2001-V, para. 107. ‘In the case of a breach of Articles 2 and 3 of the Convention, which rank as the
most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing
from the breach should in principle be part of the range of available remedies’. Z. and others v. United
Kingdom [GC] (10 May 2001), ECtHR 2001-V, sec. 109; Keenan v. U.K. (2001), sec. 130; Paul and
Audrey Edwards v. U.K. (14 March 2002) ECtHR 2002-II, para. 97; McGlinchey and Others v. U.K. (29
April 2003) ECtHR 2003-V, para. 66; Bubbins v. U.K., (17 March 2005), para. 171.
10
  European Court of Human Rights, Han v.  Turkey, Application No. 50997/99, Judgment of
13 September 2005, para. 40. See also SC Marolux SRL and Jacobs v.  Romania, Application No.
29419/02, Judgment of 21 February 2008, para. 52; Lungoci v. Romania, Application No. 62710/00,
Judgment of 26 January 2006, para. 56; Popovitsi v. Greece, Application No. 53451/07, Judgment of
14 January 2010. Judges Spielmann and Malinverni share the view that the best redress would be to
reopen the case and that the Court should have recommended it. Partly Dissenting Opinion of Judge
Spielmann & Malinverni, Popovitsi v. Greece.
11
  Paudicio v. Italy, Application No. 77606/01, Judgment of 24 May 2007, para. 59.
12
  In Austria, the General Public Prosecutor has the power to file before the Supreme Court a plea
of nullity in criminal cases in the interests of the proper application of the law when there has been a
violation or incorrect application of the law. This procedure was followed in the Unterpertinger v. Austria
case after a judgment of the European Court of Human Rights. European Court of Human Rights,
Unterpertinger v. Austria (1986) 15 EHRR 175.
 Declaratory Judgments 289

of this are being developed in regard to Article 13’s right to a remedy, but other aspects
particular to an individual case need to be considered.
Applicants have often unsuccessfully sought to obtain specific relief in the form of
a declaration. In Selçuk v. Turkey,13 for example, the applicants asked for a declaration
that they should be re-established in their village, which the Court found had been
burned by Turkish authorities. The Court refused the request, recalling ‘that a judgment
in which it finds a breach imposes on the respondent state a legal obligation to put an
end to the breach and make reparation for its consequences in such a way as to restore
as far as possible the situation existing before the breach (resititutio in integrum)’. If res-
titutio in integrum is in practice impossible, ‘the respondent states are free to choose the
means whereby they comply with a judgment in which the court has found a breach,
and the Court will not make consequential orders or declaratory statements in this regard’.
The Court considered that the matter was not one of redress, but of compliance
with the declaratory judgment and insisted that the Committee of Ministers has the
supervisory role.14
Commentators and members of the Court have criticized the lack of coherence in
the Court’s practice of issuing declaratory judgments finding a violation and consider-
ing it to be just satisfaction, without further redress.15 As early as 1976, in Engel and
others v. The Netherlands,16 the separate opinion of Judges Ganshof van der Meersch and
Evrigenis contested the use of the judgment as just satisfaction. As they viewed it:
according to Article [41] of the Convention, the Court shall afford, on the conditions laid down in
that provision, ‘just satisfaction’ to the injured party if it finds a breach of the Convention. It seems
difficult to accept the proposition that the finding by the Court of a breach of the substantive pro-
visions of the Convention, whilst constituting a condition for the application of Article [41], can
at the same time be the consequence in law following from that same provision.
In their view it was not necessary that the individual be afforded just satisfaction in
that case. Judge Bindschedler-Robert, by contrast, thought an indemnity was due for
the moral damage suffered. More recently, Judge Casadevall, in his Partly Dissenting
Opinion in the Swierzko v. Poland case, argued that on the one hand, applicants have
the right to something more than a simple moral victory or the satisfaction of having
enriched the Court’s jurisprudence and, on the other hand, the state must be made aware
that it has breached the convention. In his view the appropriate way to do this is through
application of Article 41 on just satisfaction.17
Applicants to the European system have questioned whether there is a pattern to
the Court’s decisions limiting just satisfaction to a declaration that the state has vio-
lated the rights of an individual. According to one former judge, the Court’s view of

13
  European Court of Human Rights, Selçuk v. Turkey, EHRR 1998-II.
14
  See also Mentes and others v. Turkey. Applicants asked the Court ‘to confirm’ that just satisfaction
must include the state bearing the costs of repairs to the village and assurances that they could return
to their village. The Court instead reiterated that supervision of compliance with the Court’s judgment
is a matter for the Committee of Ministers. See European Court of Human Rights, Mentes and others
v. Turkey, (1997) ECtHR 1997-VIII 2693, para. 24.
15
  S. Touzé, ‘Les limites de l’indemnisation devant la Cour EDH: le constat de violation comme
satisfaction équitable suffisante’, in J.-F. Flauss and E. Lambert Abdelgawad (eds.), De l’effectivité des
recours internes dans l’application de la CEDH, Droit et Justice, Vol. 69, 2006, 127, 129. See also Partly
Dissenting Opinion of Judge Bonnello, European Court of Human Rights [GC], Aquilina v. Malta,
ECtHR 1999-III [GC].
16
  European Court of Human Rights, Engel and others v. The Netherlands (1976) Series A No. 22
(1976) 1 EHRR 706.
17
  Partly Dissenting Opinion of Judge Casadevall, European Court of Human Rights, Swierzko
v. Poland (2006) para. 2 (in French only).
290 The Substance of Redress

the merits of the case is a key factor in its decision on any remedy to be afforded.18 The
closer the decision on the merits, or the more divided the Court on whether or not a
violation of the Convention has taken place—which often occurs in the most innova-
tive and ground-breaking cases—the less likely the Court is to give damages, the judges
feeling that they have already strained to give a judgment favourable to the applicant.
There is clear concern for the reaction of governments: although the Court is described
by the judge as ‘parsimonious’, its caution is deemed warranted because ‘one mistake
and the whole system collapses’. As a result of this hesitant approach, the Court closely
scrutinizes each claim for just satisfaction, even when there is no opposition from the
government.
The jurisprudence of the European Court of Human Rights indicates the circum-
stances in which the Court is likely to limit ‘just satisfaction’ to its judgment finding
a violation. In the first decade in which the issue arose, from 1972 to 1981, the Court
awarded monetary damages in seven Article 50 decisions (Ringeisen v. Austria,19 Engel
and others v. Netherlands,20 Deweer v. Belgium,21 Konig v. Germany,22 Artico v. Italy,23
Guzzardi v. Italy,24 and Airey v. Ireland25). In two other cases (Sunday Times v. United
Kingdom26 and Tyrer v. United Kingdom27) rights violations were found, but no timely
Article 50 claims were made.28 Three claims for damages were rejected (Neumeister
v. Austria,29 Golder v. United Kingdom,30 and Marckx v. Belgium31), with the Court find-
ing that the judgment constituted an adequate remedy. Neumeister and Golder were cases
concerning prisoners while in Marckx, the applicant had asked only for one Belgian
franc in symbolic damages. The cases in which damages were awarded involved denial of
access to justice, unlawful detention, and violations of fair trial procedures.

18
  Personal interview with a judge of the European Court, July 1997.
19
  European Court of Human Rights, Ringeisen v. Austria (1971) Series A No. 1, (1971) 1 EHRR 455
(violation of Art. 5(3) for wrongful and excessive detention).
20
  Engel and others v. The Netherlands, supra n. 16 (unlawful arrest and excessive detention, as well as
in camera proceedings for military discipline).
21
  European Court of Human Rights, Deweer v. Belgium (1980) Series A No. 35, (1980) 2 EHRR
439 (coercion of the applicant to waive his right to a fair hearing).
22
  European Court of Human Rights, Konig v. Republic of Germany (1979) Series A No. 27 (unrea-
sonable proceedings to revoke a medical doctor’s licence to practise).
23
  European Court of Human Rights, Artico v. Italy (1981) Series A No. 37, (1980) 3 EHRR 1
(3,000,000 lira moral damages awarded for ‘a distressing sensation of isolation, confusion and neglect’
after applicant was denied effective legal assistance in a fraud case).
24
  European Court of Human Rights, Guzzardi v. Italy (1980) Series A No. 39, (1980) 3 EHRR 557
(suspected Mafiosi detained in strict supervision on an island pending trial).
25
  European Court of Human Rights, Airey v. Ireland (1979) Series A No. 32, (1981) 3 EHRR 592
(denial of legal aid to indigent applicants for legal separation violates the right of access to court).
26
  European Court of Human Rights, Sunday Times v. United Kingdom (Merits) (1979) Series A No.
30, (1979) 2 EHRR 245.
27
  European Court of Human Rights, Tyrer v. United Kingdom (1978) Series A No. 26, (1978) 2
EHRR 1.
28
  In the Sunday Times case, the applicants, without quantifying their claims, requested the Court to
declare that the United Kingdom government should pay the costs and expenses of the litigation. No
Art. 50 claim was made for material or moral damage: European Court of Human Rights, Sunday Times
v. United Kingdom (1980) Series A No. 38, (1981) 3 EHRR 317. For a discussion of costs and fees in
the case, see infra Chapter 11. In Tyrer v. United Kingdom, supra n. 27, a case of corporal punishment,
the applicant made a claim, but subsequently withdrew from the proceedings. The Court unanimously
found it unnecessary to apply Art. 50.
29
  European Court of Human Rights, Neumeister v. Austria (1974) Series A No. 17.
30
  European Court of Human Rights, Golder v.  United Kingdom (1975) Series A  No. (1975) 1
EHRR 524.
31
  European Court of Human Rights, Marckx v. Belgium (1979) Series A No. 3, (1979) 2 EHRR 330.
 Declaratory Judgments 291

During its second decade, from 1982 to the end of 1991, applicants claimed moral
damages in fifty-one cases where the Court found that the judgment alone was ‘just sat-
isfaction’ for the moral damage caused by the violation. The cases where moral damages
were denied share certain general characteristics. First, the Court was often divided on
the merits. In almost one-third of the fifty-one cases, judges filed dissenting opinions, a
proportion that is significantly higher than the overall frequency of dissents. Two of the
cases were won by only one vote32 and votes of 6–3 or 5–2 were common among these
decisions; one plenary decision was decided by a vote of 11–6,33 others by 10–6,34 8–635
and 12–5.36 Secondly, the great majority of the cases denying compensation—forty of
the fifty-one—concerned persons accused or convicted of criminal conduct. Two other
applicants were mental hospital inmates and two were homosexuals. Two cases con-
cerned professional disciplinary proceedings (medical and legal). In nearly all the cases,
the applicants were asserting procedural errors in actions against them, in violation of
Article 5 or 6 of the Convention. The most common provision invoked was Article 6(1).
The relatively few non-prisoner cases in which moral damages were denied concerned pro-
cedural errors in civil or administrative hearings. In fact, only four cases of the fifty-one cases
denying moral damages involved challenges to substantive law: two of the four concerned
restrictions on divorce37 and two challenged the criminalization of homosexuality.38 In three
of these cases, the Court was divided on the merits (15–4 in Dudgeon v. United Kingdom, 9–8
in F. v. Switzerland, and 8–6 in Norris v. Ireland). Only Johnston and others v. Ireland, involv-
ing restrictions on divorce and remarriage in Ireland, was a unanimous chamber judgment.
Silver v. United Kingdom39 is typical of cases where the Court deemed the finding of
a violation to be just satisfaction for the moral damage caused by the state’s actions. The
case concerned interference with a prisoner’s correspondence with his lawyer. In a sup-
plementary memorial regarding the application of Article 50, the applicants asserted the
absence of any local remedy. They claimed that the finding of a violation could not ‘in
principle’ be considered as just satisfaction, but must depend upon the particular facts
and circumstances of each case. On the facts of this case, they asserted that although the
level of the applicants’ damage could not be precisely calculated, ‘it should be substan-
tial if it is adequately to represent the extent to which their rights have been violated’.40
In focusing on the government’s breach, the applicants called on the court ‘to have
regard to aggravating factors . . . in assessing the sum to be awarded to each applicant by
way of general damages’.41 The government responded that it was neither necessary nor
appropriate to award damages because many prisoners’ letters did get through and ‘as
the Court is aware, in the light of the Commission’s report in this case, the Government
made significant changes in the arrangements governing correspondence to and from
prisoners’.42 In reply, the applicants again focused on the fault of the state, pointing out

32
  European Court of Human Rights, F. v. Switzerland (1987) Series A No. 128, (1987) 10 EHRR
411; Fox, Campbell and Hartley v. United Kingdom (1990) Series A No. 182.
33
  European Court of Human Rights, Benthem v. The Netherlands (1985) Series A No. 97.
34
  European Court of Human Rights, Ekbatani v. Sweden (1988) Series A No. 134.
35
 European Court of Human Rights, Norris v.  Ireland (1988) Series A  No. 142, (1988) 13
EHRR 186.
36
  Hauschildt v. Denmark, Series A, No. 154; Application No. 10486/83, 154 Eur. Ct. H.R. (ser. A)
(24 May 1989) (1990) 12 EHRR 266.
37
  European Court of Human Rights, Johnston and others v. Ireland (1986) Series A No. 112, (1986)
9 EHRR 203; F. v Switzerland, supra n. 32.
38
  Dudgeon v. United Kingdom, supra n. 5; Norris v. Ireland, supra n. 35.
39
  European Court of Human Rights, Silver v. United Kingdom (1983) Series A No. 61, (1983) 5
EHRR 347 (Arts. 6(1) and 8 violations for stopping mail between solicitor and prisoner).
40
  European Court of Human Rights, Applicant’s Memorial (1981–3) Series B No. 51, 338.
41
 Ibid. 42
 Ibid, 352.
292 The Substance of Redress

that interference with prison correspondence is particularly serious because it is the

‘principal means of developing and maintaining contact with the outside world, which
is an important part of the process of rehabilitation’. As for the changes in practice that
the state had made, the applicants correctly distinguished the interests of the applicants
from the treaty regime and the inadequacy of a declaratory judgment from their perspec-
tive: according to them, the measures already taken by the government:
related to the ‘general interest’ element in the case and not to the applicants’ claim under Article
50 . . . They cannot compensate the applicants for past interference with their correspondence.
Some of the applicants are no longer detained and will, accordingly, derive no benefit from these
changes for the future.43
The applicants asked for £4,500, for each year of incarceration, in general damages
and for their distress. The Court awarded no damages, deeming the judgment just sat-
isfaction for their moral injury.44 The Court said the prisoners ‘may have experienced
some annoyance and sense of frustration as a result of the restrictions that were imposed
on particular letters’ but it was not of ‘such intensity’ that it would justify an award.
Moreover, significant improvement in government behaviour had occurred.
In this case, as in other prisoner cases, the Court appeared to undervalue the impact
of the violation by the state on those subject to its power. The result could send a nega-
tive message to those in prison and supposedly undergoing rehabilitation that those in
power ‘get away with’ violations of the law. The Silver decision has further significance
because one applicant had died and the Court held the moral damage claim was not
survivable: ‘The injury under this head was of a purely personal nature’ because it was not
claimed that it affected his estate or involved material damage nor were his next of kin
claiming to be injured parties in their own right. So ‘the cause of justice’ did not require
money in compensation for his mental distress.
Dudgeon v. United Kingdom, like the prisoner cases, is an instance where the Court
seems to have overlooked the impact of the violation on the victim. The applicant was
challenging the existence of Northern Irish laws that criminalized certain homosexual
acts between consenting adult males. The applicant had been campaigning for repeal of
the laws for some time. At one point, the police questioned him for some four and a half
hours about his sexual life, although eventually the prosecutor decided not to institute
proceedings against him. He claimed an interference with his private life in violation of
Article 8 of the Convention and discrimination in violation of Article 14 in conjunction
with Article 8. The Court held that his rights had been violated, but agreed with the
government’s view that its judgment reflected a conclusion that the law on homosexu-
ality ‘became’ unjustified as standards changed regarding respect for private life under
Article 8. The Court denied Dudgeon’s request for £5,000 for the police action taken
and another £10,000 for general fear and distress. He asked the latter amount ‘to signify
the seriousness of the breach’ and ‘the exceptional nature of the denial of the right to
respect for his private life’.45 The Court found that the change in law which occurred in
the United Kingdom fulfilled Dudgeon’s aim in bringing the complaint and that it was
not necessary to afford any monetary compensation in redress for the law criminalizing
homosexuality.

43
 Ibid, 367.
44
  European Court of Human Rights, Silver and others v. United Kingdom (1991) Series A No. 67
(Art. 50), (1988) 13 EHRR 582. The applicants did receive a large part of their legal fees.
45
  European Court of Human Rights, Applicant’s Memorial, (1980–2) Series B No. 40, 226.
 Declaratory Judgments 293

In regard to the police investigation, Dudgeon, like other applicants, unsuccessfully

sought damages by using domestic analogies, such as false imprisonment, and cited
domestic damages awarded in such cases. The Court denied moral damages, noting that
the police were merely applying the law as it then existed. The holding seems erroneous;
to enact a law in violation of a right guaranteed by the Convention causes generalized
harm to all those within the affected or target group, creating apprehension and fear of
prosecution; to apply such a law against a particular person causes individualized and
more serious harm that should be redressed. The Court created a dangerous precedent
by suggesting that a state will be excused from redressing individual harm on a ‘good
faith’ defence if the police enforce a law that violates the Convention. In Dudgeon and
the subsequent Norris decision concerning the same topic, the Court indicated it was
denying damages for non-pecuniary harm at least in part in view of the states’ duty to
change the law—although the Court will not issue an order to that effect. Yet, the Court
has awarded non-pecuniary damages in other cases where the same duty arises (X and Y
v. Netherlands,46 Bonisch v. Austria,47 Feldbrugge v. Netherlands48).
Soering v. United Kingdom49 was the first case where the European Court used the
declaratory judgment to prevent an imminent violation. The applicant, a German
national, was detained in England pending extradition to the USA to face murder
charges in the state of Virginia. The offences charged could have subjected the applicant
to the death penalty if he were convicted. Soering alleged that the decision to send him
to the United States would give rise to a breach by the United Kingdom of Article 3 of
the Convention due to his exposure to the ‘death row’ phenomenon. The Court held
in favour of the applicant and declared that the decision to extradite, if implemented,
would give rise to a breach of Article 3. He was extradited only after ensuring that he
would not be sentenced to death.
The pattern established in the former Court’s just satisfaction decisions continued
throughout its tenure. From the beginning of 1992 until the inauguration of the new
Court on 1 November 1998, the Court found that the judgment was adequate to repair
the moral injury in seventy-nine cases, fifty of which concerned prisoners or detained
aliens. The non-prisoner cases where damages were denied involve homosexuals, aliens
not in detention, religious minorities and legal persons50 and the Court was divided on
the merits in many of these cases. Another important factor was whether the challenged
measure affected a procedural or substantive right. Those who contested the lawfulness
of detention or procedural violations in criminal prosecutions were usually awarded
moral damages only when there were aggravating factors in the government conduct,
such as clearly abusive search and seizure, ill treatment during custody, extremely lengthy
proceedings (eighteen years) or when the individuals were later acquitted or successfully
challenged the substantive law.51
It thus seems that the most significant factors in determining whether or not damages
were awarded were the character of the applicant, the unanimity of the Court, and the
procedural or substantive nature of the right violated. The Court seemed close to the
view that those accused or convicted of crimes should receive no damages for procedural

46
  European Court of Human Rights, X and Y v. The Netherlands (1985) Series A No. 91.
47
  European Court of Human Rights, Bonisch v. Austria (1986) Series A No. 103 (Art. 50).
48
  European Court of Human Rights, Feldbrugge v. The Netherlands (1986) Series A No. 99.
49
  European Court of Human Rights, Soering v. United Kingdom (1989) Series A No. 161 (1989)
11 EHRR 439.
50
  The Court has expressed some doubt about whether companies are capable of suffering moral
damage.
51
  See e.g. European Court of Human Rights, Allenet de Ribemont v. France (1995) Series A No. 308.
294 The Substance of Redress

violations unless they could demonstrate actual innocence or prove that the procedural
violation determined the outcome of the domestic proceeding. The conduct of the gov-
ernment appeared to be much less significant, although severe government miscon-
duct sometimes could overcome the bias against prisoners. A similar result is seen in
wire-tapping cases, which seem particularly affected by what is heard on the wire-tap and
why it was done.52 In the future, many of these cases are unlikely to even reach a decision
on the merits, because, without a substantive consequence to the procedural violation,
the Court is likely to find the case inadmissible on the ground that the applicant did not
suffer a ‘significant disadvantage’ as a consequence of the violation.
The decision in McCann v.  United Kingdom53 was the first where the European
Court condemned a country for violating Article 2 and where the character of the vic-
tims led the Court to deny damages for deprivations of the right to life. The applicants
denounced the killing by members of the British security forces of three members of the
IRA suspected of involvement in a bombing mission in Gibraltar. It was claimed that
two of the three were shot in the back by soldiers attempting to arrest them. One soldier
testified that his intent had been to shoot to kill in order to stop the suspect from becom-
ing a threat and detonating a bomb. Several witnesses testified that two of the suspects
had been shot while lying on the ground, although others disagreed. The circumstances
of the third shooting were also in dispute, in particular whether the suspect was shot
in the back or on the ground. The Commission found no convincing support for the
allegation that the soldiers shot any of the suspects in the back. All, however, were shot
at close range. The Commission, by vote of 11–6, found no violation of Article 2 of the
Convention. The Court, sitting in a Grand Chamber, found a violation of the right to life
by a vote of 10–9. It was not persuaded ‘that the killing of the three terrorists constituted
the use of force which was no more than absolutely necessary in defence of persons from
unlawful violence’. The applicant family members of the deceased requested an award of
damages at the same level as would be awarded for wrongful death under English law, as
well as exemplary damages if the killings were found to be deliberate or the result of gross
negligence. The Court dismissed the claim for pecuniary and non-pecuniary damage,
finding it not ‘appropriate’ to make an award because ‘the three terrorist suspects who
were killed had been intending to plant a bomb in Gibraltar’.54
The ‘bad man’ basis for denying compensation is seen also in Welch v.  United
Kingdom,55 concerning the confiscation of assets of a drug-trafficker. The Court found
that the confiscation order amounted to ex post facto imposition of a penalty in breach
of Article 7(1) of the Convention. Welch sought pecuniary and non-pecuniary dam-
ages and reimbursement of costs and expenses. The Court denied damages and further
decided that because the applicant’s claims for compensation failed, it saw no reason

52
  European Court of Human Rights, Kruslin v. France (1990) Series A No. 176A. The applicant
was convicted of armed robbery and attempted armed robbery and sentenced to fifteen years’ impris-
onment. The recording of the telephone conversation ‘was a decisive piece of evidence in the proceed-
ings’ against him. He continued to protest his innocence and sought FF1,000,000 compensation for
the imprisonment, which he alleged to be the direct result of the breach. The Court accepted that the
conviction rested on the wire-tapping, but seems to have been influenced by the fact that in another
case, which it discusses although not part of this application, he was convicted and sentenced to life
imprisonment for premeditated murder. The applicant received no damages and only a part of the costs.
53
  European Court of Human Rights, McCann v. United Kingdom (1995) Series A No. 324, (1996)
21 EHRR 97.
54
  Ibid, para. 219.
55
  European Court of Human Rights, Welch v. United Kingdom (1995) Series A No. 307, (1995) 20
EHRR 247.
 Declaratory Judgments 295

why an award in respect of costs and expenses for the Article 50 phase of the proceedings
should be made.
The European Convention on the Compensation of Victims of Violent Crimes partly
supports the European Court’s approach, calling for the denial of compensation to a
victim who engages in misconduct or is involved in organized crime.56 Article 8 states:
(1) Compensation may be reduced or refused on account of the victim’s or the
applicant’s conduct before, during or after the crime, or in relation to the injury
or death.
(2) Compensation may also be reduced or refused on account of the victim’s or the
applicant’s involvement in organized crime or his membership in an organization
which engages in crimes of violence.
(3) Compensation may also be reduced or refused if an award or a full award would
be contrary to a sense of justice or to public policy (‘ordre public’).57
Other international tribunals acknowledge that declaratory judgments can be appro-
priate but rarely limit the victims to declaratory relief alone. The European Court of
Justice, in the Kampffmeyer case, held that Article 21558 did not prevent the Court from
declaring the Community liable for ‘imminent damage foreseeable with sufficient cer-
tainty even if the damage cannot yet be precisely assessed. To prevent even greater dam-
age it may prove necessary to bring the matter before the Court as soon as the cause of
damage is certain’.59 To award damages, the Court insists that the injury must be ‘actual,
significant and definite’,60 ‘direct’,61 ‘real’,62 or ‘actual and certain’63 and that pecuni-
ary damage must be: (1) certain and specific; (2) proved; and (3) quantifiable. Pain
and suffering is included as an element in awards, but never articulated as a basis for
non-pecuniary damages.
Defendant states have asked the Inter-American Court of Human Rights to limit
remedies to declaratory judgments, but thus far the Court has refused to do so. It does
agree that a judgment finding a violation in itself provides some redress,64 noting that
‘international case law has established repeatedly that the judgment may constitute per
se a form of reparation’.65 Given the nature of the violations that are generally at issue,
however, the Inter-American Court has developed a broad concept of non-pecuniary

56
  Council of Europe: European Convention on the Compensation of Victims of Violent Crimes
opened for signature by Member States of the Council of Europe on 24 Nov. 1983, Arts. 7–8, Eur. T.S.
No. 116, 3; (1983) 22 ILM 1021.
57
  Ibid, Art. 8.
58
  The provision states that the Community shall ‘in accordance with the general principles common
to the laws of Member States make good any damage caused by its institutions or by its servants in the
performance of their duties’.
59
  European Court of Justice, Joined Cases 56–60/74, Kurt Kampffmeyer Muhlenvereinigung KG and
others v. Commission (1976) ECR 711, 741.
60
  European Court of Justice, Case 23/59, Acciaieria Ferrieradi Roma v. High Authority (1959) ECR
245, 250.
61
  European Court of Justice, Case 18/60, Louis Worms v. High Authority (1962) ECR 195, 206.
62
  European Court of Justice, Case 4/65, S.A. Metallurgique Hainaut-Sambre v.  High Authority
(1965) ECR 1099, 1112.
63
  European Court of Justice, Joined Cases 67–85/75, Lesieur, Cotelle et Associés, S.A. v. Commission
[1976] ECR 391, 408.
64
  See, e.g. Inter-American Court of Human Rights, Acosta-Calderon v. Ecuador (2005) Series C
No. 129, para. 159; Claude Reyes v. Chile (2006) Series C No. 151, para. 156.
65
  Inter-American Court of Human Rights, Case of Mendoza et al. v. Argentina (2013) Series C
No. 260, D.2.2.; Case of Neira Alegría et al. v. Peru (Reparations and costs) (1996) Series C No. 29, para.
56, and Case of Mohamed v. Argentina (2012) Series C No. 255, para. 155.
296 The Substance of Redress

damage that may ‘include both the suffering and distress caused to the direct victims and
their families, and the impairment of values that are highly significant to them, as well as
other alterations of a non-pecuniary nature that affect the living conditions of the victims
or their families’.66 In El Amparo v. Venezuela,67 the Court noted Venezuela’s reference to
the practice of the European Court of Human Rights. Although accepting in theory that
it could similarly limit relief, the Court found that a declaratory judgment would not be
adequate to remedy the moral injury in El Amparo given the gravity of the violations.
The views of other human rights bodies, as noted earlier, generally contain findings
of fact and decisions on the law, together with recommendations for remedies. Most of
them go beyond a declaration that a violation has been found, although often the recom-
mendations are quite general in nature.
Advisory opinions are another way to obtain a declaration about the specific content
of international obligations and is the only means when the tribunal lacks contentious
jurisdiction over those who seek an answer to the specific question. The advisory juris-
diction of the International Court of Justice, for example, has often been used to declare
the legal obligations of international organizations, which have no standing to bring
cases before the court. The advisory jurisdiction of the European Court is quite limited
and rarely used, although the entry into force of Protocol 16 would expand its mandate
to accept questions referred from domestic courts.68 In contrast, the advisory jurisdic-
tion of the Inter-American Court of Human Rights69 and the African Court is extremely
broad.70
There are several distinctions between requests for advisory opinions and declara-
tory judgments. First, advisory jurisdiction, unlike jurisdiction over contentious cases,
is permissive. The Inter-American Court generally exercises its discretion, however, stat-
ing that it ‘must have compelling reasons founded in the belief that the request exceeds
the limits of its advisory jurisdiction under the Convention before it may refrain from
complying with a request for an opinion’.71 The Court has pointed out other major

66
  Mendoza case, supra n. 65, citing Case of the ‘Street Children’ (Villagrán Morales et al.) v. Guatemala
(Reparations and costs) (2001) Series C No. 77, para. 84, and Case of the Kichwa Indigenous People of
Sarayaku v. Ecuador (Merits and Reparations) (2012) Series C No. 245, para. 318.
67
  Inter-American Court of Human Rights, El Amparo v.  Venezuela (Reparations) (1996) Series
C No. 22.
68
  Protocol 2 to the European Convention on Human Rights, ETS No. 44, confers on the Court
competence to give an advisory opinion at the request of the Committee of Ministers. The opinions
cannot deal with any question relating to the content or scope of the rights or freedoms guaranteed
in the Convention and Protocols or with any other question which the Commission, the Court or
the Committee of Ministers might have to consider in consequence of any inter-state or individual
communication. A decision of the Committee of Ministers to request an advisory opinion requires a
two-thirds majority vote.
69
  American Convention on Human Rights, ‘Pact of San Jose’, Costa Rica (adopted 22 November
1969, entered into force 18 July 1978), [hereinafter American Convention] Art. 64(1); see
T. Buergenthal, ‘The Advisory Practice of the Inter-American Court’ (1985) 79 Am. J. Int’l L. 1; D. Shelton,
‘The Jurisprudence of the Inter-American Court of Human Rights’ (1994) 10 Am.U.J. Int’l L. & Pol’y
333. All OAS member states may consult the Court regarding the interpretation of the Convention
or other treaties concerning the protection of human rights in the Americas. They may also request an
opinion on the compatibility of any existing or proposed domestic laws with such instruments. Various
OAS organs, including the Inter-American Commission on Human Rights, may also seek advisory
opinions on matters falling ‘within their spheres of competence’.
70
  Convention, Art. 64(2). See Inter-American Court of Human Rights, Proposed Amendments to
the Naturalization Provisions of the Constitution of Costa Rica (Advisory Opinion) No. OC-4/84, (1984)
Series C No. 4.
71
  Inter-American Court of Human Rights, Enforceability of the Right to Reply or Correction (Articles
14(1), 1(1) and 2, American Convention on Human Rights) (Advisory Opinion) No. OC-7/86, (1986)
Series C No. 7, para. 12.
 Declaratory Judgments 297

differences between advisory and contentious jurisdiction calling the former ‘a parallel
system . . . an alternate judicial method of a consultative nature, which is designed to
assist states and organs to comply with and to apply human rights treaties without sub-
jecting them to the formalism and the sanctions associated with the contentious judicial
process’.72 The Court has noted that there are no parties (complainants and respondents)
to advisory proceedings; no state is required to defend itself against formal charges; no
judicial sanctions are envisaged and none can be decreed. ‘All the proceeding is designed
to do is to enable OAS Member States and OAS organs to obtain a judicial interpreta-
tion of a provision embodied in the Convention or other human rights treaties in the
American states’.73 In contrast, in a contentious proceeding, the Court ‘must not only
interpret the applicable norms, determine the truth of the acts denounced and decide
whether they are a violation of the Convention imputable to a State party: it may also
rule “that the injured party be ensured the enjoyment of his right or freedom that was
violated”’.74 Most significantly, the parties to contentious proceedings are legally bound
to comply with the decisions of the Court, although in practice the advisory opinions
of international tribunals carry considerable weight in the development and application
of the law.
The decisions and recommendations of commissions, committees and special rappor-
teurs can be considered as falling between an advisory opinion and binding judgments
of courts, but closer in nature to the latter. They constitute authoritative findings on the
facts and the law which states parties to the treaties should comply with in good faith.
Finally, it should be recalled that in the law of state responsibility, the declaration that
a state has breached an international obligation automatically imposes a duty to cease
the wrongful conduct. In this respect, it is a necessary component of any international
judgment, including those concerning human rights violations. It is also important,
however, that the consequences of the breach be remedied, including indemnification
of losses suffered by the victims. This aspect of the matter will generally require the tri-
bunal to determine the consequences of the breach, who suffered from it, and how they
should be redressed. International tribunals abdicate their responsibility to the victims
of human rights violations and to the system when they fail to make the findings and
indicate the reparations that should be afforded.
Declaratory relief still has an important role in human rights litigation, in particular,
in preventing a violation that is threatened but has not yet caused measurable harm.
Generally, however, a declaratory judgment will not, in and of itself, be an adequate
remedy. Nor should it be used to deter unsympathetic victims from seeking a remedy by
denying admission of their applications or providing redress if a violation is shown. It is
the beginning of remedies, not the end.

72
  Inter-American Court of Human Rights, Restrictions to the Death Penalty (Articles 4(2) and 4(4)
American Convention on Human Rights), Advisory Opinion OC 3/83, (1983) Series C No. 3, para. 43.
73
  Ibid, para. 22. 74
  Ibid, para. 32.
 10
Restitution

Restituere in integrum in Roman law originated as a remedy granted by the praetor to

re-establish a prior situation, for example where it was shown that an otherwise valid
contract had been procured through fraud or force. The theory of restitution is to restore
what the defendant has unlawfully taken, avoiding unjust gains. Restitution is not
intended as a punitive remedy, but the wrongdoer may be required to restore or pay for
what the victim lost, even if this is more than the wrongdoer gained. The basic purpose of
restitution is to take from the wrongdoer that to which the victim is entitled and restore
it to the victim.
Restitution is the preferred remedy for breaches of international law. Global and
regional human rights bodies agree that restitution should be the guiding principle in
remedies and should be awarded when possible. Where restitution is not possible, other
forms of remedy are afforded as a substitute. Although restitution is the preferred rem-
edy, it is not possible for many types of human rights violations. An order of restitution
would be futile, for example, after violations of the right to life, torture and other physi-
cal or mental abuse, or for harm that is time-sensitive, such as when a state has wrongly
denied an individual the right to vote in an election that has passed. In other instances,
restitution is both possible and appropriate. Not only does restitution avoid the possibil-
ity of the government paying compensation and continuing the violation (for example,
deprivation of liberty or employment), but it allows tribunals to avoid the sometimes
difficult and time-consuming assessment of damages, for example in property claims. In
addition, restitution most often corresponds to the needs and desires of victims. Thus,
for practical reasons of administration of justice as well as to satisfy the basic aims of
remedies, restitution is favoured.
In human rights proceedings, most restitution claims arise in respect to illegal dep-
rivations of land, art, and other personal property, arbitrary detention, and wrongful
termination of employment. In recent years, human rights claims involving restitution
have centred on assets looted during the Second World War, ancestral lands of indig-
enous peoples, property confiscated by communist governments in Central and Eastern
Europe, and displacement as a consequence of armed conflict.

10.1  Cultural Property

The looting and destruction of cultural property during wartime is probably as old as war
itself.1 Julius Caesar’s 48 BC intervention in Egypt to support Cleopatra IV’s royal claims
against her brother Ptolemy XIII was accompanied by a fire that burned thousands of
books in the ancient library of Alexandria, at the time the most extensive collection of

1
  See Capt. Joshua E.  Kastenberg, ‘The Legal Regime for Protecting Cultural Property During
Armed Conflict’ (1997) 42 A.F.I. Rev. 277.
 Restitution 299

scholarship in the world.2 Marc Antony partly compensated the kingdom by supplying
some 200,000 scrolls from the Pergamum,3 but many irreplaceable works were lost for-
ever, causing unknown and unknowable global consequences.4 The Alexandrian library
has gone without a modern claim for reparations,5 but other cultural property destroyed
or taken during occupation remains subject to strongly asserted claims. In July 2003,
Egypt demanded return of the Rosetta Stone, while Greece has long pressed its claim
for restitution of the Parthenon Marbles held by the British Museum in London. Many
such government and private claims for the return of stolen cultural property continue
to be pressed, especially in respect to assets looted during the Second World War and
more recent conflicts. Governments are taking action in response. Austria, for example,
began a new search for stolen art in 1998, establishing a Commission for Provenance
Research to look through historical material on acquisitions for the state museums and
collections, especially during the period of 1938 to 1945.
Looting of cultural property may be considered a war crime or crime against human-
ity in certain circumstances. International law has obliged an occupying power to pro-
tect cultural property at least since the adoption of the Geneva Conventions of 19496
and the 1954 Hague Convention for the Protection of Cultural Property in the Event
of Armed Conflict.7 More generally, the 1970 UNESCO Convention on the Means
of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property,8 Article 7 (b) (ii) requires states parties, at the request of the state party
of origin, to take appropriate steps to recover and return any illicitly acquired cultural
property imported after the entry into force of the Convention in both states, provided
the requesting state pays just compensation to an innocent purchaser or to a person who
has valid title to that property. In 1995, the independent organization UNIDROIT was
asked by UNESCO to develop a related Convention on Stolen or Illegally Exported

2
  The library was founded by Ptolemy I Soter in 290 BC. At its peak it is estimated that the library
held the equivalent of 100,000 to 125,000 books. The fire of 48 BC is estimated to have burned 40,000
books. See ‘Bibliotheca Alexandrina—On the Ancient Library’, available at http://www.bibalex.org.
3
 Ibid.
4
  Ibid. The destruction begun by Caesar was completed after a decree of the Emperor Theodosius in
391 forbade pagan religions and the Bishop of Alexandria eliminated the library, viewing it as a house
of pagan doctrine.
5
  While modern Egypt made no reparations claim, various heads of state and other officials, includ-
ing a representative of the Italian Ministry of Foreign Affairs, signed the Aswan Declaration for the
Revival of the Ancient Library of Alexandria just over a decade ago, aiming to reconstitute the library as a
repository for all human knowledge. Contributions, including financial assistance by UNDP, exceeded
US$65  million and the library reopened in 2003 with the cooperation of UNESCO. The Aswan
Declaration for the Revival of the Ancient Library of Alexandria is available at http://www.unesco.
org/new/en/communication-and-information/access-to-knowledge/libraries/bibliotheca-alexandrina/
the-aswan-declaration/.
6
  Geneva Convention Relative to the Treatment of Civilian Persons in Time of War, 12 Aug. 1949,
6 UST 3516, TIAS. No. 3365, 75 UNTS 287. Earlier and less developed provisions are found in Arts.
27, 47 and 56 of the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land,
18 Oct. 1907, 36 Stat. 2277, (1908) 2 Am. J. Int’l L., Supp. 90 (prohibiting pillage and protecting insti-
tutions dedicated, inter alia, to arts and sciences and prohibiting seizure, destruction or wilful damage
to historic monuments and works of art or science).
7
  Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May
1954, 249 UNTS 240–88, Arts. 4(3) and 5. For a discussion of the 1954 Convention, see S.E. Nahlik,
‘International Law and the Protection of Cultural Property in Armed Conflict’ (1976) 27 Hastings
L. J. 1069.
8
  Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer
of Ownership of Cultural Property, 14 Nov. 1970 (UNESCO), 823 UNTS 231, (1971) 10 Int’l Legal
Materials 289. See also Convention on the Protection of the Archaeological, Historical, and Artistic
Heritage of the American Nations (Organization of American States Convention of San Salvador),
16 June 1976, OAS TS No. 47 (1976), (1976) 15 Int’l Legal Materials 1350.
300 The Substance of Redress

Cultural Objects. States parties to the 1995 agreement commit to a uniform practice
of restitution of stolen or illegally exported cultural objects, with restitution claims pro-
cessed directly through national courts.9 The UNIDROIT Convention covers all stolen
cultural objects and stipulates that all such property must be returned. Where none of
the treaties apply, UNESCO member states which have lost certain cultural objects
of fundamental significance and seek restitution or return may call on the UNESCO
Intergovernmental Committee for Promoting the Return of Cultural Property to its
Countries of Origin or its Restitution in case of Illicit Appropriation.10
In general, treaties are not retroactive, but there may be a current norm to return
cultural property even when taken in the past. The UN General Assembly, in 1973,
adopted resolution 3187 deploring the removal of works of art without payment as a
result of colonial or foreign occupation, but the resolution did not speak to restitution.
In the 1990s, however, first in resolution 46/10 of 22 Oct. 1991 and thereafter in a series
of subsequent resolutions, the General Assembly affirmed the need to return irreplace-
able cultural heritage to its source. In 1999, new resolutions brought attention to the loss
of cultural property during armed conflict, expressing concern about acts directed against
cultural property in areas of armed conflict and in occupied territories.11 The General
Assembly requested international organizations to address the issue of the return or
restitution of cultural heritage to countries of origin.12 In 2002, the UN launched an
International Fund for the Return of Cultural Property to Its Countries of Origin or Its
Restitution in Case of Illicit Appropriation.13 Aimed specifically to benefit the creators
of one category of stolen objects, Article 12 of the 2007 UN Declaration on the Rights
of Indigenous Peoples calls for the restitution of the cultural heritage of indigenous
peoples14 even though indigenous claims often involve property taken over a century ago.
Many of the developments of the 1990s and subsequently have been in response
to the deliberate attacks on cultural property that occurred in the conflicts in the
former-Yugoslavia, Iraq and Afghanistan. UN Security Council Res. 1483 (2003),
adopted under Chapter VII, stressed the need for respecting the archaeological, histori-
cal, cultural and religious heritage of Iraq.15 It noted the illegal removal of material from
Iraq and prohibited trade in or transfer of such items. This binding trade ban included a
requirement for all member states to take appropriate steps to facilitate the safe return to
Iraqi institutions of cultural property and requested all UN member states to cooperate
closely to ensure the recovery and restitution of stolen Iraqi cultural property. The effect
of the resolution was to establish a presumption that all exports from Iraq after 1990
were illegal.
The destruction or taking of cultural property can implicate not only the right to
property, but also freedom from discrimination, freedom of religion and the right to
culture. Much of the national jurisprudence that exists has involved Nazi-era art con-
fiscations from private owners and from museums.16 The general principle of property
law that a thief cannot convey good title has helped to avoid extinction of claims due to

9
  UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 24 June 1995, http://
www.unidroit.org/instruments/cultural-property/1995-convention.
10
  See generally: Jeanette Greenfield (ed.) Return of Cultural Treasures (3rd edn, Cambridge, 2007).
11
  UN Doc. A/RES/54/190, pmbl, para. 9. 12
  Ibid, paras. 2 and 3.
13
  Referred to in UNGA Res. 56/97, UN Doc. A/RES/56/97 (30 Jan. 2002).
14
 See James A.R. Nafzier and Ann M.  Nicgorski (eds.) Cultural Heritage Issues:  The Legacy of
Conquest, Colonization and Commerce (Leiden, 2009) [hereinafter The Legacy of Conquest].
15
  UNSC Res. 1483, para. 7, UN Doc. S/RES/1483 (22 May 2003).
16
  See Robert K. Peterson, ‘Resolving Material Culture Disputes: Human Rights, Property Rights,
and Crimes against Humanity’, in The Legacy of Conquest, supra n. 14, 371.
 Restitution 301

statutes of limitations, but the need to show original ownership and a good faith diligent
search can limit recovery.17 Nonetheless, litigation has resulted in numerous works of stolen
art and other property being returned to former owners or their successors.18 In national
proceedings, most cases have been decided under the private law of theft and not as a crime
against humanity19 or a human rights claim.

10.2 Land
In addition to addressing cultural property claims, the international community has taken
up issues of property restitution in response to widespread displacement caused by conflict
and repression.20 Ownership of lands and resources is one of the major sources of conflict
throughout the world,21 with restitution claims increasingly being made and recognized.
CERD’s General Recommendation XXIII (1997) recommends restitutio in integrum as the
primary form of reparation for takings of traditional indigenous lands and territories. Only
when this is impossible for verifiable objective reasons, does the right to just, fair and prompt
compensation provide an acceptable substitute, and even here the compensation should
as far as possible take the form of similar lands and territories. Addressing other displaced
persons, CERD General Recommendation XXII (1996) concerns the rights of persons who
return to where they lived before they were displaced for racial or ethnic reasons. The CERD
considers that such persons have the right to have their property restored to them and the
right to be compensated appropriately for any property that cannot be returned.
Indigenous claims for the restitution of lands are often compelling. Using force and
unequal treaties,22 Native Americans in the United States lost over two billion acres of

17
 See Autocephalous Greek Orthodox Church of Cypress et al. v. Goldberg & Feldman Fine Arts, Inc., 917
F. 2d 278 (7th Cir. 1990), cert. denied, 112 U.S. 377 (1991).
18
  See Wojciech Kowalski, Art Treasures and War: A Study on the Restitution of Looted Cultural Property
Pursuant to Public International Law (1998). Cases seeking restitution include Rosenberg v. Seattle Art
Museum, 70 F. Supp. 1163 (W.D. Wash. 1999); Goodman v. Searle, No. 96C 6459 (N.D. Ill. 9 Feb.
1998); and People v. Museum of Modern Art, 252 A.D. 2d 211 (N.Y. App. Div. 1999).
19
  But see Convention of the Non-Applicability of Statutory Limitations to War Crimes and Crimes
against Humanity, UNGA Res. 2391, GAOR, 23rd Sess., UN Doc. A/7218 (1968); Rome Statute of
the ICC, art. 29; European Convention on the Non-Applicability of Statutory Limitations to Crimes
against Humanity and War Crimes, E 7582, 13 ILM 540 (25 Jan. 1974). See, generally, Steven A. Bibas,
‘The Case against Statutes of Limitations for Stolen Art’, (1994) 103 Yale L. J. 2437.
20
  See, e.g., Megan J. Ballard, ‘Pre-Planning for Post-Conflict Property Remedies: A Case Study from
Georgia’, (2011) 43 Geo. Wash. Int’l L. Rev. 43; Miriam J. Anderson, ‘The UN Principles on Housing
and Property Restitution for Refugees and Displaced Persons (The Pinheiro Principles): Suggestions
for Improved Applicability’, (2011) 24 J. Refugee Stud. 304, 304–305; Jose-Maria Arraiza & Massimo
Moratti, ‘Getting the Property Questions Right:  Legal Policy Dilemmas in Post-Conflict Property
Restitution in Kosovo (1999-2009)’, (2009) 21 Int’l J.  Refugee L. 421, 422–423; Giulia Paglione,
‘Individual Property Restitution: From Deng to Pinheiro—and the Challenges Ahead’, (2008) 20 Int’l
J. Refugee L. 391, 391; Anneke Smit, ‘A ‘Sea of Tiny Houses’: Novel Approaches to Ending Forced
Displacement Following the 2008 Russia-Georgia Conflict’, in James A. Green & Christopher P.M.
Waters (eds.) Conflict in the Caucasus:  Implications for International Legal Order 136 (2010); Dan
E.  Stigall, ‘Refugees and Legal Reform in Iraq:  The Iraqi Civil Code, International Standards for
Treatment of Displaced Persons, and the Art of Attainable Solutions’, (2009) 34 Rutgers L. Rev. 1.
21
  See e.g. Carla Power, ‘Europe’s Zimbabwe: The Scottish Parliament Moves toward a Big Land
Grab’, Newsweek, 20 Jan. 2003, 20–1 (describing a land reform law to redress historical acquisitions that
placed two-thirds of the land in the hands of 1,200 people).
22
  See Francis Jennings, The Invasion of America:  Indians, Colonialism and the Cant of Conquest
(Chapel Hill, 1975). Among other things, many treaties were not translated from English into native
languages and even when they were, terms were negligently or intentionally mistranslated, leading many
native groups to believe they were granting rights of access to land when in fact they were ceding the
lands permanently.
302 The Substance of Redress

land, only half of which was compensated, at an average rate of seven cents per acre.23
The United States Supreme Court upheld these takings in a series of cases decided
between 1823 and 1971.24 In total, a conservative estimate is that Native Americans
lost two-thirds of their land. A claims commission established in 194625 to settle land
disputes and breaches of Indian treaties is generally viewed as a failure. More recently,
legislative enactments have restored some lands to indigenous tribes or compensated
them for the takings. The Alaska Native Claims Settlement Act of 197126 extinguished
all aboriginal title in Alaska, reconveyed 44 million acres to Alaskan native corpora-
tions as corporate assets, and provided $926.5 million over a period of years. The US
Congress voted to return Blue Lake to the Taos Pueblo of New Mexico, in part because
of its religious significance, and returned other lands to various Native American tribes.27
A 1990 federal law in the United States orders the restitution of human remains of
Native Americans along with grave goods and funerary objects.28 New Zealand created a
process for redressing wrongs committed in the late 1880s that involves returning lands
and factories, fishing vessels and fishing rights.29
Canadian courts have been receptive to the idea of unextinguished aboriginal title.
Such title is deemed to have arisen by historic occupation and possession prior to the
establishment of Canadian sovereignty, from the effects of pre-existing systems of abo-
riginal law, and from the effect this occupation and law had on the common law.30
The 1982 Constitution Act, section 35(1) is express: ‘The existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized and affirmed’. At the
same time, this provision has been deemed not to deny the government the power to
restrict or extinguish any right that existed in 1982. In fact, the government has taken the
approach of the Alaska Settlement Act and extinguished some aboriginal titles through
settlement agreements and legislation. The UN Human Rights Committee has criti-
cized this policy as incompatible with Article 1 of the ICCPR.31
In Australia, a landmark judicial decision in 1992 overturned the colonial view
that Australia was terra nullius and recognized the doctrine of common law aboriginal
title.32 A year later, the government passed the Native Title Act under which Native

23
  Russel Barsh, ‘Indian Land Claims Policy in the United States’ (1982) 58 N.D. L. Rev. 7.
24
  See e.g. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S.
(5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Stephens v. Cherokee Nation, 174
U.S. 445 (1899); Lone Wolf v. Hitchcok, 187 U.S. 553 (1903); Tee-Hit-Ton Indians v. United States, 348
U.S. 272 (1955); United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).
25
  Indian Claims Commission Act of 1946, Pub. L. No. 726, ch. 959, 60 Stat. 1049 (1999).
26
  Alaska Native Claims Settlement Act of 1971, 43 USC §§ 1601–29 (1988).
27
  E.g. Puyallup Tribe of Indians Settlement Act of 1989, 25 USC § 1773 (1988 and Supp. III
1991); Quinault Indian Act of 8 Nov. 1988, Publ. L. No. 100-638, 102 Stat. 3327; Hannahville Indian
Community Act of 1 Nov. 1988, Pub. L. No. 100-581, 102 Stat. 2938, 2945-6; Confederated Tribes of
Grand Rone Community of Oregon, Act of 9 Sept. 1988, Pub. L. No. 100-425, 102 Stat. 1594.
28
  Native American Graves Protection and Repatriation Act, 25 USCA §§ 3001–13, 18 USCA
§ 1170. Many state laws in the US similarly protect Native American remains and cultural objects.
See H. Marcus Price III, Disputing the Dead: U.S. Law on Aboriginal Remains and Grave Goods (1991).
29
  The Waikato Raupatu Claims Settlement Bill of 1995 gave reparations of US$40 million for
the seizure of Maori lands by British colonists in 1863. See Carter D. Frantz, ‘Getting Back What was
Theirs? The Reparations Mechanisms for the Land Rights Claims of the Maori and the Navajo’ (1998)
16 Dick. J. Int’l L. 489; Chris Cunneen, ‘One Way to Give Back to the Stolen Generations’, The Sydney
Herald, 14 Aug. 2000, 14. Information also available at http://www.ngaitahu.iwi.nz.
30
 See Calder v. A-G of British Colombia [1973] SCR 313; Delgamuuk v. R. [1997] 3 SCR 1010.
31
  Concluding Observations on the Third Periodic Report of Canada, UN Doc. E/CN.4/C.12/1/
Add.31 (4 Dec. 1998), para. 18.
32
  Mabo v. Queensland (No. 2) (1992) 175 CLR 1. The Australian court was apparently influenced
by the ICJ Advisory Opinion on the Western Sahara [1975] ICJ Rep. 12, which rejected terra nullius in
respect to colonizing inhabited territories.
 Restitution 303

Title Tribunals were empowered to determine ‘communal group or individual rights

and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters,
where . . . the rights and interests are possessed under the traditional laws acknowledged,
and the traditional customs observed’ by these peoples and recognized by the com-
mon law. A 1998 amendment to the Act was adopted to limit some of the broader
judicial decisions protecting native title. The UN Committee on the Elimination of
Racial Discrimination criticized the amendment in 1999 and 2000. Australia did return
96 thousand square miles of land in 1976 to Aborigines in partial compensation for land
seized by white settlers.33
In Africa, the South African Reparations Movement (SARM), formed in October
2000, is a broad-based movement for restitution of land in South Africa, Namibia, and
Zimbabwe. While the issue is most notoriously framed in Zimbabwe, disputes over
land ownership deriving from colonial practices and subsequent takings also surfaced
in South Africa, Namibia, and Botswana. In the last-mentioned, the San challenged
the government over their expulsion from ancestral lands, carried out in order to create
the Central Kalahari game reserve.34 In South Africa, legislation permits land claims for
restitution back to the Native Land Act of 1913.35
One problem that emerges in many property restitution contexts is that the land
today may be owned by those not involved in the original taking. The question is
whether they should be required to relinquish the land and accept compensation for
it, or whether the original owners or their heirs should receive compensation instead of
restitution. The decisions on this issue could increase tensions in the population between
those who recover land and those who do not, but it may also be argued that illegitimate
ownership and loss of land is the cause of ongoing tension and land reform is the appro-
priate remedy.36 The question for governments and courts has been one of finding the
fair balance among the various interests and stakeholders.
Responding to twentieth century confiscations, many citizens in Central and
Eastern Europe have called for the restitution of property taken by the former com-
munist regimes.37 Many governments have responded by instituting restitution or
land-substitution schemes.38 Such policies may have been adopted to enhance the legiti-
macy and credibility of the new governments or to attract foreign capital by shifting
large amounts of land from the government to private hands. Whatever the motivation,
issues have centred on which takings deserve restitution, what kind of property should
be restored, how far back the state should look, and what modalities should regulate the
claims process. The issue is complicated because, in some instances, the pre-communist
landholding was concentrated in the hands of a few individuals or institutions.39 In
addition, some intervening owners acquired legitimate interests. In other instances, the

33
  Henry Reynolds, Law of the Land (Melbourne, 1987), 31–54.
34
  Rory Carroll, ‘Bushmen fight for ancestral lands’, The Guardian, 10 July 2004, 22.
35
  Restitution of Land Rights Act 22 of 1993, Republic of South Africa, Department of Land Affairs,
White Paper on Land Policy, s. 3.17 (1997).
36
 Scott Leckie (ed.), Returning Home:  Housing and Property Restitution Rights of Refugees and
Displaced Persons (New York, 2003); Michael L. Neff, ‘Comment, Eastern Europe’s Policy of Restoration
of Property in the 1990s’, (1992) 10 Dick.J. Int’l L. 357.
37
  For arguments against restitution in this context, see Jon Elster, ‘On Doing What One Can’ (1992)
1 E. Eur. Const. Rev. 15.
38
 See e.g. William Valetta, ‘Completing the Transition:  Lithuania Nears the End of its Land
Restitution and Reform Programme’ FAO Legal Papers Online #11 (2000), available at http://www.
fao.org/fileadmin/user_upload/legal/docs/lpo11.pdf.
39
  In Hungary, for instance, the largest landholder prior to the Second World War was the Catholic
Church.
304 The Substance of Redress

state had set aside some of the land for public purposes such as nature protection. While
compensation is clearly due for the takings, it could be inequitable or impracticable to
transfer the property back to the original owner.
Outside Europe, one of the most ambitious land restitution programs is expected in
the context of Colombia’s internal armed conflict, pursuant to the Victims and Land
Restitution Law that became effective on 1 January 2012.40 The law, one of the first of its
kind in the Americas, establishes a system of remedies to benefit the victims of the armed
conflict who have suffered human rights violations and are recognized as being entitled
to redress,41 including land restitution.42 Special protection is foreseen for members of
certain particularly targeted or disproportionately affected groups: women, children,
senior citizens, persons with disabilities, farmers, social leaders, union members, defend-
ers of human rights, and victims of forced displacement. Violations of human rights law
or grave violations of humanitarian law occurring after 1 January 1985 committed by
guerrillas, paramilitary groups, and the armed forces in the context of the armed conflict
are included. Victims are those who suffered such violations, as well as the victim’s spouse,
permanent partner, or same-sex partner, parents and children, and those persons who
suffered harm while assisting a victim or who intervened to prevent the victimization.43
As in Peru, members of guerrilla and paramilitary groups are excluded.
The provisions of the Colombian law on restitution extend to persons who were
forced off their property after 1 January 1991. In cases where victims lost real property as
a result of the conflict, the government will recover the property and return the property
to the victims. If the government is not able to recover the victim’s property, the victim
is entitled to compensation. Persons who hold legal title to property, possessed property
but did not hold legal title, or occupied vacant property assignable by the government
are entitled to recover property in restitution. Victims who lost their homes as a result
of being forced off their property will be given priority access to subsidized government
housing programs. The law provides that judges of the civil circuit courts, specializing in
property restitution, will hear restitution claims44 with the burden of proof placed on the
defendant to show title. The law allows victims to recover through 2021.
International human rights norms consider forced displacement to be a human
rights violation, based on the right to freedom of movement and the right to peaceful
enjoyment of possessions or the right to property. International human rights law and
humanitarian law have been moving towards articulating a specific right to property
restitution for people forced from their homes by repression or armed conflict.45 In
40
  Ley de Víctimas y Restitución de Tierras [Victims and Land Restitution Law], Law No. 1448,
10 June 2011, Diario Oficial [D.O.] art. 1, available at http://www.secretariasenado.gov.co/senado/
basedoc/ley_1448_2011.html (Colom.) [hereinafter Victims and Land Restitution Law]. For a detailed
discussion, see: Lina Forero-Nino, ‘Colombia’s Historic Victims and Land Restitution Law’, (2012) 18
Law & Bus. Rev. 97.
41
  Departamento Para La Prosperidad Social, Resumen General de la ‘Ley [General Summary of the
Law] (2011), http://www.colombiaenaccion.gov.co/victimas/?cat=24.
42
  Other remedies foreseen are indemnification, rehabilitation, satisfaction, and guarantees against
repetition.
43
  Victims and Land Restitution Law, supra n. 40 at art. 3 (Colom.).
44
 A  newly created governmental agency, La Unidad Administrativa Especial de Gestión de
Restitución de Tierras Despojadas, (the Unit) is charged with organizing and maintaining a record
of stolen or abandoned property, receiving applications for restitution, and representing victims in
property restitution proceedings before judges. Property recorded in the Unit’s records is presumed to
be stolen or abandoned property.
45
 Csongor Kuti, Post-Communist Restitution and the Rule of Law 18 (2009) (reviewing
post-communist restitution efforts in the former socialist part of Europe); Hans van Houtte, Bart
Delmartino & Iasson Yi, Post-War Restoration of Property Rights under International Law: Institutional
Features and Substantive Law (Cambridge, 2008), 17 [hereinafter Van Houtte]; Rhodri C. Williams, Int’l
 Restitution 305

1998, the UN adopted thirty Guiding Principles on Internal Displacement, including

one stating a duty for states to assist displaced persons ‘to recover, to the extent possible,
their property and possessions which they left behind or were dispossessed of upon their
displacement’.46 These principles were strengthened in 2005 when the United Nations
Sub-commission on Human Rights adopted the Pinheiro Principles, a set of guidelines
on property restitution programs.47 Principle 16 suggests that restitution programs
should be broadly protective and extend to formal owners, tenants and other occupants.
Principle 21 recommends that refugees and displaced persons be afforded a right to have
their housing, land, and property restored to them, or to be compensated if restitution
is ‘factually impossible’.

10.3 Liberty
Human rights tribunals will call for the restitution of liberty when the state is found
to be unlawfully detaining an individual; in such instances, release of the detainee also
constitutes cessation of the breach. The Inter-American Court first ordered restitution
of liberty in the case of Loayza Tamayo v. Peru, after finding that the applicant had been
subjected to repeated criminal trials in violation of the guarantee against double jeop-
ardy. The European Court generally refers to the restitution of liberty not as part of just
satisfaction under Article 41, but through its discussion of Article 46 on the execution
of judgments. According to the Court, ‘in principle the respondent state remains free
to choose the means by which it will discharge its legal obligation under Article 46 of
the Convention’ but these measures must be compatible with the conclusions set out in
the Court’s judgment. In certain particular situations, usually pilot judgments, ‘with a
view to assisting the respondent State in fulfilling its obligations under Article 46,’ the
Court will indicate the type of individual and/or general measures that might be taken
in order to put an end to the situation that gave rise to the finding of a violation. In other
exceptional cases, which include cases involving deprivation of liberty, ‘the nature of
the violation found may be such as to leave no real choice as to the measures required
to remedy it and the Court may decide to indicate only one such measure’. The Grand
Chamber judgment in Assanidze v. Georgia was the first in a series of cases in which the
court indicated that the liberty of the applicant must be restored. The language of the
Del Rio Prada v. Spain (2013) case is typical:
139. The Grand Chamber agrees with the Chamber’s finding and considers that the present case
belongs to this last-mentioned category. Having regard to the particular circumstances of the case
and to the urgent need to put an end to the violations of the Convention it has found, it consid-
ers it incumbent on the respondent State to ensure that the applicant is released at the earliest
possible date.

Ctr. for Transitional Justice, The Contemporary Right to Property Restitution in the Context of Transitional
Justice (New York, 2007), 3.
46
  UN Econ. & Soc. Council [ECOSOC], Commn on Human Rights, Guiding Principles on
Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2 (11 Feb. 1998).
47
  ECOSOC, Sub-Comm’n on the Promotion & Prot. of Human Rights, Principles on Housing
and Property Restitution for Refugees and Displaced Persons, UN Doc. E/CN.4/Sub.2/2005/17 (28 June
2005) [hereinafter Pinheiro Principles]; see also ECOSOC, Sub-Comm’n on the Promotion & Prot.
of Human Rights, Resolutions and Decisions Adopted by the Sub-Commission at its Fifty-seventh
Session, at 3-5, UN Doc. E/CN.4/Sub.2/2005/L.11/Add.2 (11 Aug. 2005) (Yozo Yokota) (approving
the Pinheiro Principles without a vote).
306 The Substance of Redress

Once the unlawful detention has been determined, restitution of liberty seems appro-
priate. More difficult is the issue of whether liberty should be guaranteed pending a deter-
mination on the merits. There has generally been an unwillingness to grant precautionary
measures to imprisonment while the lawfulness of detention is being adjudicated. In 2011,
however, the IACHR accepted a request for precautionary measures in a case from Ecuador
involving criminal defamation charges against a journalist and publisher, and asked the state
not to enforce the judgment until the Commission could review the matter. The matter was
later resolved, but the decision opened the door for requests from every convicted criminal
for the issuance of measures to avoid going to prison, on the basis that the underlying law or
the unfairness of the trial requires that the sentence not be enforced until the IACHR can
fully review the matter. The decisions imply that loss of liberty is increasingly considered an
irreparable harm, despite earlier doctrine. Between 1959 and 2013, nearly half of the judg-
ments in which the Court found a violation included a violation of Article 6, on account of
the unfairness or the length of the proceedings.

10.4  International Jurisprudence

In their practice, United Nations human rights treaty bodies refer frequently to restitu-
tion, even when it is not clear that restitution can be effectuated. In the area of economic
and social rights, the ICESCR has indicated that restitution requires restoring the cir-
cumstances that existed prior to the violation, to the degree that it is possible,48 and
compensation for the losses that resulted from the rights violation, if restitution is not
possible.49 The Committee against Torture has stated that, in accordance with Article 14
of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, redress includes restitution, and it has recommended this type of meas-
ure in a number of cases. The Committee on the Elimination of Racial Discrimination
also has indicated restitution as an appropriate remedy.
The Human Rights Committee has recommended measures of restitution on a num-
ber of occasions. The first time that the Committee did so was in a case decided in 1980
involving enforced disappearance in Uruguay.50 In its views, the Committee stated that
the state party was under an obligation to provide the victim with effective remedies,
including his immediate release. Some of the types of restitution recommended by the
Committee have been: release from incarceration or detention;51 restoration of the right
to participate in political affairs52; leave to depart from the country53; issuance of a pass-
port54; restoration of employment and benefits55 ; restitution of property56; restoring a
mother’s access to her children57; and restoration of the right to vote.58

48
  A/HRC/20/15, para. 57. 49
  Ibid, para. 58.
50
  Comm. No. R.12/52 (Sergio Euben Lopez Burgos v. Uruguay) UN Doc. Supp. No. 40 (A/36/40),
176 (1981).
51
  Comm. No. 577/1994 (Polay Campos v. Peru), UN Doc. A/53/40, vol. II, 36, para. 10; Comm.
No. 788/1997 (Cagas et al. v. The Philippines), UN Doc. A/57/40, i, 116.
52
  L. Sudalenko v. Belarus, CCPR/C/100/D/1354/2005.
53
  Comm. No. 52/1979 (Sergio Ruben Lopez Burgos v. Uruguay), I Selected Decisions 88, para. 14.
54
  Comm. No. 1107/2002 (El Ghar v. Libya), (2004) II Report of the Human Rights Committee,
UN Doc. A/60/40, 166.
55
 Comm. 641/1995 (Gedumbe v.  Congo), UN Doc. A/57/40, vol. II, 24, para. 6.2; Comm.
906/2000 (Chira Vargas v. Peru), UN Doc. A/57/40, vol II, 228.
56
  Comm. 747/1997 (Des Fours Walderode v. Czech Republic), UN Doc. A/57/40, vol. II, 88, para.
95; Comm. No. 774/1997 (Brok v. Czech Republic), UN Doc. A/57/40, vol. II, 110, para. 9. These cases
rested on a claim of discrimination, not on the right to property, which does not figure in the ICCPR.
57
  Comm. No. 514/1992 (Fei v. Colombia), UN Doc. CCPR/C/53/D/514/1992 (1995).
58
  Comm. No. 1373/2005 (Dissanayake v. Sri Lanka) CCPR/C/93/D/1373/2005.
 Restitution 307

The European Court of Human Rights and the Inter-American Court now indicate
that restitution is the preferred remedy where this is possible. The European Court over
time has become more receptive to identifying restitution as the appropriate response
to certain violations, although it mentioned restitution as one of its guiding principles
from the outset.59 The more frequent use of restitution may be because the Court has
received cases where restitution is clearly possible and it would be unjust to allow the
state to pay damages while continuing to violate the rights, or it may be that in most
instances restitution is coextensive with cessation of the breach, e.g. restitution of liberty
ceases the violation of arbitrary detention, and the Court can affirm the state’s continu-
ing obligation to comply with the norm by asserting that it must end the breach through
restitution of the right, without the matter falling within Article 41 as a form of redress.
Just satisfaction under Article 41 is then a separate matter that arises when restitution is
impossible or inadequate.60
The first cases where restitution was indicated as the appropriate remedy were prop-
erty cases, most significantly Papamichalopoulos v. Greece61 and Brumarescu v. Romania62
where the European Court’s operative paragraphs said that each state ‘is to return the
property to the applicant’ and if not to pay compensation. This fell short of indicating a
binding obligation of restitution.63 At the same time, the Court did seem to say that res-
titution is an obligation independent of Article 41, perhaps echoing the ILC approach to
state responsibility, which considers cessation of the breach independently from repara-
tions. Article 41 supplies the means and mandate to substitute damages if restitution is
not provided.64
The Court has also indicated restitution in cases of deprivation of liberty, beginning
with the Grand Chamber decision in Assanidze v. Georgia,65 involving the alleged unlaw-
ful detention of a local official by the authorities of the Georgian ‘Ajarian Autonomous
Republic’. The Court agreed that the applicant had been deprived of his liberty in viola-
tion of Article 5(1) of the Convention, and of a fair hearing in violation of Article 6(1).
Before indicating its award under Article 41, the Court restated the state’s obligation
under the Convention following a judgment in which the Court finds a breach; the
judgment imposes on the state a legal obligation to put an end to the breach and to make
reparation for its consequences ‘in such a way as to restore as far as possible the situation
existing before the breach’.66 Should it appear that national law does not allow for full
reparation, ‘Article 41 empowers the Court to afford the injured party such satisfaction as

59
  European Court of Human Rights, De Wilde, Ooms and Versyp v. Belgium (Article 50) (1972)
Series A No. 14, 1 EHRR 438, para. 20; Ringeisen v. Austria (Article 50) (1972) Series A No. 15,
1EHRR 504, para. 21; Neumeister v. Austria (Article 50) (1973) Series A No. 17, 1 EHRR 136, para.
40. See: C. Gassama, ‘Le principe de restitution in integrum dans le contentieux international des droits
de l’homme’, (2005) 9 Mediterranean J. Hum.Rts. 126.
60
  L.G. Loucaides, ‘Reparation for Violations of Human Rights under the European Convention
and Restitutio in Integrum’, (2008) 2 Eur. Hum. Rts. L.Rev. 188.
61
  European Court of Human Rights, Papamichalopoulos v. Greece (Article 50) Series A No. 330B
(judgment of 31 Oct. 1995).
62
  European Court of Human Rights, Brumarescu v. Romania (Article 41), ECtHR 2001-I 155,
(2001) 33 EHRR 35 (judgment of 23 Jan. 2001).
63
  In an earlier judgment, Hentrich v. France, the Court was even more reticent, stating only that ‘the
best form of redress would in principle be for the State to return the land’. Hentrich v. France, (1994)
Series A No. 296-A, 18 EHRR 440, para. 71.
64
  Brumarescu, supra n. 62, para. 20; Papamichalopoulos, supra n. 61, para. 34.
65
 European Court of Human Rights, Assanidze v.  Georgia, App. No. 71503/01 (judgment of
8 Apr. 2004).
66
  European Court of Human Rights, Assanidze v. Georgia, App. No. 71503/01 (judgment of 8 Apr.
2004), para. 198.
308 The Substance of Redress

appears to it to be appropriate’.67 In the instant case, the Court determined that the appli-
cant had sustained substantial non-pecuniary injury due to his inability to obtain his
release from detention and that he undoubtedly had sustained pecuniary losses as well.
Ruling on an equitable basis, the Court awarded a lump sum of 150,000 euros to cover
both headings of damage; it also awarded 5,000 euros for legal costs. Most importantly,
the Court added that Georgia must take other measures in order to put an end to the
violation that had been found.
The Court reiterated that its judgments are essentially declaratory in nature ‘and
that, in general, it is primarily for the State concerned to choose the means to be used in
its domestic legal order in order to discharge its legal obligation under Article 46 of the
Convention’,68 provided such measures are compatible with the conclusions set forth in
the Court’s judgment. The Court added, however, that, ‘by its very nature, the violation
found in the instant case does not leave any real choice as to the measures required to remedy
it’.69 The Court concluded that ‘the respondent State must secure the applicant’s release
at the earliest possible date’.
The Assanidze judgment was the first time that the Court indicated restitution as
the required remedy for a violation of the right to liberty. The decision was unanimous,
although Judge Costa appended a concurring opinion explaining his view of the subsidi-
ary nature of the Court’s jurisdiction that leads to the state generally retaining the choice
of means to achieve the required result. Judge Costa noted that the Court nonetheless
may simplify the monitoring function of the Committee of Ministers by specifying
precisely the obligations of the state that flow from the Court’s judgment. What gave
him pause were the specific facts of this case, where he found that the government had
made efforts in good faith to secure the release of the applicant over the three years of
his unlawful detention. Given this, he asked whether the Court should not have waited
for a more suitable opportunity to take this step forward in its case law. In the end he
decided to concur, he said, because ‘it would have been illogical and even immoral to
leave Georgia with a choice of (legal) means, when the sole method of bringing arbitrary
detention to an end is to release the prisoner’.
Although restitution is the preferred remedy where it is possible, the Court does
not examine whether there is an opportunity for the applicant to obtain partial or full
restitutio in integrum at the national level. The Court has shown reluctance to inquire of
states about measures in place or potentially available in order to redress the violation
following a judgment on the merits. The states parties have recognized the need for
measures to achieve restitution, especially the need for mechanisms to reopen domestic
cases following judgments by the Court.70
The question of restitution of property was litigated at the European Court in the
context of the Turkish invasion of northern Cyprus71 and the earlier military coup
in Greece, but the number of applicants seeking restitution of property significantly
increased after the admission of former communist states to the Council of Europe in

67
  Ibid (emphasis added). 68
  Ibid, para. 202.
69
  Ibid, para. 202 (emphasis added).
70
 See Committee of Ministers Recommendation R(2000) 2 of 19 January 2000 on the
re-examination or reopening of certain cases at domestic level following judgments of the European
Court of Human Rights.
71
  See Charles Bremner, ‘Turks Risk Clash with Europe on Human Rights’, The Times, 17 Aug. 1998,
15; Martin Walker, ‘Turkey Defies Europe over Compensation for Cyprus Seizure’, The Guardian,
27 August 1998, 12. Turkey paid damages in European Court of Human Rights, Loizidou, 1996-VI,
2216, but has not fully implemented the judgments in Cyprus v.  Turkey, App. No. 25781/94, 23
EHRR 244 (1997).
 Restitution 309

the 1990s.72 In general, the new governments limited restitution of property unlawfully
or unjustly taken.73 In some cases they provided substitute land rather than restitution,74
but a few governments initiated ambitious programs.75
The European Court requires that an interference with property be both lawful and
proportionate to a legitimate aim,76 an approach that has not addressed all the issues
posed by takings. In many instances, property rights were never formally extinguished,
but became impossible to exercise. In other cases, confiscations were in accordance with
domestic law at the time, but applicants argue that the confiscation law and indeed the
governing system as a whole was so unjust that the confiscation should not be recognized
as lawful. In general, these and other restitution cases require domestic tribunals as well
as the European Court to consider whether property is a mere economic interest for
which a money substitute is adequate or so unique and closely related to the applicant’s
identity that denying its return would inflict a disproportionate harm.
In determining whether a taking of property is lawful, the European Court refused
to recognize a ‘law’ that purported to extinguish property rights in Loizidou v. Turkey77
because the purported authority adopting the law was not recognized as the government
of a state under international law and its actions were therefore invalid. The Court added
that Turkey as the responsible party could not justify denying the applicant’s property
rights without compensation.78
The non-retroactivity of the European Convention, like other human rights trea-
ties, means many restitution cases raise questions of the Court’s temporal jurisdiction.
Applicants must base their claims on a post-ratification violation attributable to the state
and, in property cases, the violation asserted is often passive, consisting of the failure
of government authorities to provide restitution or compensation for property taken
pre-ratification. The issue then becomes whether the continued retention of property
constitutes an interference with the protected Convention right to peaceful enjoyment
of possessions set forth in Protocol 1-1. This would only be the case if the applicant’s
right to the property were still in existence, making the violation a continuing one.79
In numerous cases, the European Court has confirmed that an individual cannot
raise a complaint regarding possessions that were lawfully taken before Protocol 1-I took
effect.80 If, on the other hand, the deprivation of property was unlawful under national
72
  For a more detailed discussion of the issues raised in this section, see: Tom Allen, ‘Restitution
and Transitional Justice in the European Court of Human Rights’ (2006–2007) 13 Columbia
J. European Law 1.
73
 Hungary chose to offer compensation rather than restitution. Gábor Halmai & Kim Lane
Scheppele, ‘Living Well is the Best Revenge: The Hungarian Approach to Judging the Past’, in A. James
McAdams (ed.) Transitional Justice and the Rule of Law In New Democracies 155 (Notre Dame,1997).
For discussion of other restitution programs in Europe, see: Michael Heller & Christopher Serkin,
‘Revaluing Restitution: From the Talmud to Postsocialism’, (1999) 97 Mich. L. Rev. 1385, 1404 (1999);
Istvan Pogany, Righting Wrongs In Eastern Europe (Manchester, 1997); Radoslav Procházka, Mission
Accomplished: On Founding Constitutional Adjudication In Central Europe 148–151, 166–167, 173–174
(Budapest, 2002); Maria Lo, ‘Property Rights, Market and Historical Justice: Legislative Discourses in
Poland’, (1994) 22 Int’l J. Soc. L. 39; William R. Youngblood, ‘Note & Comment: Poland’s Struggle for
a Restitution Policy in the 1990s’ (1995) 9 Emory Int’l L. Rev. 645.
74
  See European Court of Human Rights, Broniowski v. Poland (2004) 2004-V 1.
75
  See Andrzej K.  Kozminski, ‘Restitution of Private Property:  Re-privatization in Central and
Eastern Europe’, (1997) 30 Communist & Post-Communist Studies 95; Richard Crowder, ‘Restitution in
the Czech Republic: Problems and Praguenosis’ (1994), 5 Ind. Int’l & Comp. L. Rev. 237.
76
  European Court of Human Rights, Sporrong (1982) Series A No. 52 ECHR (ser. A).
77
  Loizidou v. Turkey (1996) 1996-VI 2216. 78
  Ibid, 2237–38.
79
  With an expropriation, the violation is normally completed when the owner is unlawfully deprived
of the property.
80
 See, e.g., Futro v.  Poland (2000) App. No. 51832/99; Multiplex v.  Croatia (2002) App.
No. 58112/00; Kopecký v. Slovakia (2004) App. No. 44912/98, para. 35; Maltzan v. Germany (2005)
310 The Substance of Redress

law, it creates a continuing violation, as was found in the case of Papamichalopoulos

v. Greece.81 The Court took a similar view in Loizidou and other cases from northern
Cyprus.82 By contrast, many applicants whose property rights were never formally extin-
guished, but who found it impossible to access or otherwise enjoy their property during
the breakup of the former Yugoslavia and thereafter, have found their claims dismissed.83
The European Court has developed two restrictive doctrines that limit jurisdiction in
such cases.84 In the Grand Chamber’s judgment in Malhous v. The Czech Republic,85 the
European Court held that an expropriation left the former owner with no subsisting
rights that might provide the basis for a claim under Protocol 1-I. In the Court’s view ‘the
hope of recognition of the survival of an old property right which has long been impos-
sible to exercise effectively cannot be considered as a “possession”’.86 In some of these
cases, the Court has seemed rather hasty in declining jurisdiction because the period of
time the owner was unable to exercise property rights was less than a decade.87 The other
dismissive doctrine the Court developed with respect to restitution cases is that it has
no jurisdiction where post-ratification acts are closely connected with pre-ratification
conduct.88 These narrow views of jurisdiction seem inconsistent with the Loizidou and
other Cyprus cases where the applicants were clearly relying on an ‘old property right
which has long been impossible to exercise effectively’; the length of time access to prop-
erty was denied counted against Turkey in the Court’s decision, rather than rendering
the cases inadmissible. The international illegality of the Turkish invasion seems to have
been a significant factor in the outcome, in contrast to the internal acts of the former
communist governments of Central and Eastern Europe. The Court seems somewhat
determined to avoid jurisdiction in the latter context, which is confirmed by its reluc-
tance to investigate the legal rules of the communist era to determine whether a national
court would have held that title had been lost or whether the applicant would have been
recognized as an owner.89
In cases from the Czech Republic, applicants have argued unsuccessfully that either
the original property rights were never extinguished, or the post-transition restitution

App. Nos. 71916/01, 71917/01, 10260/02, para. 74; Blec i v. Croatia (2006) App. No. 59532/00; Põder
v. Estonia (2005) App. No. 67723/01; Dobrotinic v. Croatia (2003) App. No. 13848/02.
81
  European Court of Human Rights (1993) Series A No. 260-B, 23. The point was not contested by
Greece. See also Vasilescu v. Romania, 1998-III, 1064.
82
  European Court of Human Rights, Loizidou v. Turkey (1996) 1996-VI 2216, 2230 and Stran
Greek Refineries v. Greece (1995) 301-B. See also Eugenia Michaelidou Developments Ltd v. Turkey (2003)
App. No. 16163/90; Demades v. Turkey (2003) App. No. 16219/90, (2003).
83
 Kozminski, supra n. 75, at 96-97; McAdams, supra n. 73, 135.
84
  Tom Allen, Transitional Justice and the Right to Property under the European Convention on
Human Rights, 16 Stell L. Rev. 413, 420–429 (2005).
85
  European Court of Human Rights 2000-XII 533. Following Malhous, see Prince Hans-Adam II
of Liechtenstein v. Germany, 2001-VIII 1; Poenaru v. Romania (2001) App. No. 51864/99; Polacek and
Polackova v. Czech Republic (Grand Chamber) (2002) App. No. 38645/97; Gratzinger and Gratzingerova
v. Czech Republic (Grand Chamber) (2002) 2002-VII 399; Breierova v. Czech Republic (2002) App. No.
57321/00; Hartman v. Czech Republic (2002) App. No. 53341/99; Lastuvkova and Mrazek v. Czech
Republic (2002) App. No. 72059/01; Houfova v. Czech Republic (2003) App. No. 58177/00; Slivenko
v. Latvia (Grand Chamber) (2002) 2002-II 467.
86
  Ibid. See also European Court of Human Rights, Nadbiskupija Zagrebacka v. Slovenia (2004)
App. No. 60376/00.
87
  European Court of Human Rights, Ivanovic v. Slovak Republic (1998) App. No. 37892/97.
88
  European Court of Human Rights, Multiplex v. Croatia (2002) App. No. 58112/00. (‘[A]‌lthough
the legislative interference took place after the Convention entered into force in respect of Croatia it
was so closely related to the events that gave rise to the applicant’s claim that divorcing the two would
amount to giving retroactive effect to the Convention which would be contrary to general principles of
international law’.)
89
 Allen, supra n. 72.
 Restitution 311

statutes conferred a new property right (in the form of a statutory right to restitution).
The Grand Chamber has consistently rejected both arguments stating that ‘the hope that
a long-extinguished property right may be revived cannot be regarded as a ‘possession’
within the meaning of Article 1 of Protocol No. 1; nor can a conditional claim which has
lapsed as a result of the failure to fulfill the condition’.90 This seems untenable, because
the Czech courts had already decided that the applicant held a property interest under
Czech law.91 If the European Court had followed the approach taken in other property
cases, it would have held that P1-I applied and engaged in balancing the public interest
with that of the individual applicant. Dissenting opinions in Loizidou suggest that the
Court may be unwilling to examine restitution claims in the context of international
disputes or in fragile democratization processes of so-called ‘transitional justice’, because
they see them as non-justiciable given their complexity.92
Conflict also arises where national law requires the current owner to return property
to a claimant who was deprived of it under the old regime. Some states enacted laws that
have allowed former owners to recover property without providing full compensation to
the current owner. The European Court appears to evaluate this situation with a focus on
the degree of blame involved in the current owner’s acquisition of property. The Czech
restitution law entitled the former owners to recover the property on reimbursement of
the current owner’s purchase price, with an allowance for maintenance, an amount con-
siderably below current market value in most instances. The Court held in Stran Greek
that the current owner was entitled to full compensation unless he or she participated
in the abuse of power. Current owners were not subject to restitution if they acquired
the property for full value and in accordance with the rules in force at the time. By sid-
ing with the applicants, the Court indicated that states cannot treat some owners as less
worthy of full compensation solely because they acquired the property for less than its
true value. In other cases, the Court was not so strict: even if the present owner had not
acted unlawfully, the fact that they had obtained a valuable asset for nothing meant that
it could be taken without compensation. If the Court took a similar line in post-conflict
situations, it would consider a broad range of matters under the rubric of the fair balance
test. It might consider, for example, whether restitution would exacerbate housing short-
ages caused by rapid and uncoordinated privatization or whether refusing (or allowing)
restitution would indirectly support racist policies. However, these points would not
be given as much weight if stability or legality were the paramount considerations, as
it appears they are in transitional cases. In Loizidou, for example, it is possible that the
Court was responding to the spectre of ethnic cleansing, and it sought to recognize the
recent emphasis in human rights law on providing refugees and displaced persons with
the right to return to their homes.
In contrast to the European Court, the Inter-American Court has called for restitu-
tion in nearly all cases where such measures are possible. In its very first judgment in a

90
 European Court of Human Rights, Polacek and Polackova v.  Czech Republic (2002) App.
No. 38645/97, para. 62.
91
  The Czech Constitutional Court found that the conditions of residency, as applied to citizens,
violated P1-I, as well as the Charter of Fundamental Rights and Freedoms of the Czech Republic, and
this would only make sense if conditions of residency amounted to an interference with possessions (the
condition of citizenship was not unconstitutional because it was specifically provided for by Article 11,
paragraph 2). See generally Procházka, supra n. 73, 148–151, 166–167, 173–174.
92
  Jambek, J., (dissenting), European Court of Human Rights, Loizidou, 1996-VI, 2249. See also,
ibid, 2252 (Pettiti, J., dissenting) (noting that ‘[t]‌he movement of displaced persons from one zone to
another, an exodus which affected both communities, was the consequence of international events for
which responsibility cannot be ascribed on the basis of the facts of the Loizidou case but has to be sought
in the sphere of international relations’).
312 The Substance of Redress

contentious case, the Court indicated that ‘[r]‌eparation of harm brought about by the
violation of an international obligation consists in full restitution (restitutio in integrum),
which includes the restoration of the prior situation, the reparation of the consequences
of the violation, and indemnification for patrimonial and non-patrimonial damages,
including emotional harm.93 Since then, the Inter-American Court has called for the
liberation of arbitrarily detained persons,94 the reversal of criminal convictions,95 crimi-
nal records to be expunged,96 retrials to be granted,97 nullification of death sentences,98
and fines to be cancelled.99 The Court has never adopted a ‘harmless error’ doctrine, but
examines only whether there were violations of due process.
The Court has also ordered the full reinstatement of public employees wrongfully
dismissed from their jobs or, in the alternative, access to employment opportunities
matching the conditions, salaries, and compensation they enjoyed at the time of their
unfair termination.100 In the case of Apitz Barbera et al. v. Venezuela, the Court estab-
lished that ‘taking into consideration that the irremovability of judges, whether they be
temporary or permanent, must ensure that those who were arbitrarily removed from
their position as judges be reinstated therein, the Court considers that as a reparation
measure the State must reinstate the victims, if they so wish, in a position in the Judiciary
in which they have the same rank, salary and related social benefits as they had prior to
their removal’.101
Restitution has also been awarded in the Inter-American system when indigenous
and tribal communities have sought to recover or protect their traditional lands. The
Court has called for the states to restore the lands and grant full title to the communi-
ties, if necessary through the adoption of new domestic laws and procedures.102 The

93
 Inter-American Court of Human Rights, Velasquez-Rodriguez v.  Honduras (1988) Series C
No. 4, para. 26.
94
  Inter-American Court of Human Rights, Loayza Tamayo Case (Merits) (1997) Series C No. 33,
paras. 155–8; Loayza Tamayo Case (Reparations) (1998) Series C No. 42; Berenson-Mejía v. Peru (2004)
Series C No. 119; Castillo Pertruzzi v. Peru (1999) Series C No. 41.
95
  Inter-American Court of Human Rights, Castillo Petruzzi et al. Case (1999) Series C No. 52;
Cantoral Benavides Case (Reparations) (2001) Series C No. 88, paras. 42, 77–78; Herrera-Ulloa v. Costa
Rica (2004) Series C No. 107, para. 195.
96
  Inter-American Court of Human Rights, Loayza Tamayo Case, supra n. 94, paras. 121–2; Suárez
Rosero Case (Reparations) (1999) Series C No. 44, para. 113; Acosta-Calderon v. Ecuador (2005) Series
C No. 129, para. 175(7); Cantoral Benavides, supra n. 95, para. 99(5); Suárez-Rosero v. Ecuador (1999)
Series C No. 44, para. 113(1).
97
  See, e.g. Inter-American Court of Human Rights, Fermín-Ramírez v. Guatemala (2005) Series C
No. 126, para. 138(7); Hilaire v. Trinidad & Tobago (2002) Series C No. 94, para. 223(9) (all the claim-
ant offenders sentenced to death by the state should be retried applying a reformed and amended crimi-
nal law incorporating legal guarantees and other protections of the American Convention); Castillo
Pertruzzi v. Peru (1999) Series C No. 41, para. 226(13).
98
  Fermín-Ramírez, supra n. 97, para. 138(9); Hilaire, supra n. 97, para. 223(11).
99
  See, e.g., Inter-American Court of Human Rights, Berenson-Mejía v. Peru, supra n. 94, para.
248(5) (25 Nov. 2004); Suárez-Rosero v. Ecuador, supra n. 96, para. 113(1).
100
  Loayza Tamayo Case, supra n. 96, para. 113; Inter-American Court of Human Rights, Ricardo
Baena Case (2001) Series C No. 72, para. 214.
101
  Inter-American Court of Human Rights, Apitz Barbera et  al. (‘First Court of Administrative
Disputes’) v. Venezuela (2008) Series C No. 182, para. 246. See also Case Chocrón Chocrón v. Venezuela
(2011) Series C No. 227, para. 78; Case of Reverón Trujillo v. Venezuela (2009) Series C No. 197, para.
49; but see Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (2013) Series C No. 266 (find-
ing ‘that, in the new constitutional context, and given the difficulties of designating the judges in the
same position, or in one of similar rank, as well as the new regulations protecting the tenure of judicial
officials, their reinstatement would not be possible’. para. 214. The Court awarded $60,000 in lieu of
restitution to each victim).
102
  See, e.g., Inter-American Court of Human Rights, Saramaka People v. Suriname (2007) Series C
No. 172, para. 194(c) (28 Nov. 2007).
 Restitution 313

Court discourages states from furnishing alternate lands or monetary compensation,103

allowing it only with the consent of the indigenous group that has lived on the lands
and retains spiritual, cultural and economic links amounting to an ‘all-encompassing
relationship’104 with the territory at issue. The Court unhesitatingly examines colonial
policies and current assimilationist laws,105 challenging the elites that hold power in the
respondent states.106 Implementation of restitution orders has been resisted and pro-
duced internal political upheaval,107 and some governments have publicly announced
their non-compliance.108 There have also been problems resulting from settlement by
non-indigenous persons or other indigenous groups.109 In some cases, enforcement of its
orders to delimit borders has aggravated tensions among neighbouring communities.110
The Moiwana judgment appeared to recognize this problem by urging the petitioners
and neighbouring indigenous communities to be involved in the boundary delimitation
process.111
The Court has also awarded restitution in other types of cases, in particular where
the health or reputation of the applicant has suffered. In Garrido v.  Argentina, the
Inter-American Court referred to medical rehabilitation as a form of restitution, seek-
ing to restore the injured person to physical health, and also pointed out the obliga-
tion of the state to restore the good name or honour that had been stolen.112 In 2001,
Baena-Ricardo v. Panama involved 270 state employees who had been arbitrarily dis-
missed from their jobs, the largest number of victims in a case to that point.113 The
remedial orders emphasized restoring victims to their status quo ante, requiring
the state to reinstate the 270 workers in their positions. Should that prove impossible,
the state had to provide employment alternatives with equivalent conditions, salaries
and remunerations.114 Should that alternative also prove impossible, the state had to
pay an indemnity corresponding to loss of employment, in conformity with the internal
labour law and pensions or equivalent benefits. The Court granted additional moral and
material damages, including lost wages, to the numerous victims.115 Restitution was

103
  See Inter-American Court of Human Rights, Xákmok Kásek Indigenous Community v. Paraguay
(2010) Series C No. 214, para. 284 (24 August 2010).
104
  Inter-American Court of Human Rights, Moiwana Cmty v. Suriname (2005) Series C No. 124,
para. 133 (15 June 2005).
105
  Ana Vrdoljak, Reparations for Cultural Loss, in Reparations for Indigenous Peoples: International
and Comparative Perspectives (Oxford, 2008), 213.
106
  See Jeremie Gilbert, Indigenous Peoples’ Land Rights Under International Law: From Victims to
Actors (Ardsley, 2006), 181.
107
 E.g., Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Cmty v.  Paraguay
(Monitoring Compliance with Judgment) (2009) Order of the Court, ‘Considerando’, para. 10
(20 May 2009) (observing that the three-year deadline for the land restitution had expired without the
State having completed the order); Yakye Axa Indigenous Cmty v. Paraguay (Monitoring Compliance
with Judgment) (2008) Order of the Court, ‘Considerando’, para. 11 (8 Feb. 2008). The IACHR and
the government of Paraguay were able to negotiate a settlement of the land claim of the Kelyamagategma
Community that resulted in a transfer and titling of lands to the community. Shortly thereafter the
President who supported land reform and the claims of indigenous communities was impeached.
Prominent land-owners include members of Congress.
108
  E.g. the government of Suriname in response to the Court’s judgment in Sarmaka v. Suriname.
Inter-American Court of Human Rights (2007) Series C No. 172.
109
 Ariel E.  Dulitzky, ‘When Afro-Descendants Became “Tribal Peoples”:  The Inter-American
Human Rights System and Rural Black Communities’, 15 UCLA J. Int’l L. & Foreign Aff. 29, 51.
110
 Ibid, 50. 111
  Moiwana, supra n. 104.
112
  Inter-American Court of Human Rights, Garrido v. Argentina (1998) Series C No. 39, para. 41.
113
  Baena-Ricardo v. Panama (2001) Series C No. 72, para. 88. 114
  Ibid, para. 214(7).
115
  The judgment led Panama to challenge the Court’s competence to supervise the implementation
of remedies. See Inter-American Court of Human Rights, Baena-Ricardo v. Panama (2003) Series C
No. 104, paras. 53–54.
314 The Substance of Redress

also ordered in Ivcher Bronstein v. Peru116 as the Court required the state to enable the
victim to recover the use and enjoyment of his rights as majority shareholder of his media
company, which had been suspended by Peruvian authorities. Restitution and cessation
merged in Palamara-Iribarne v. Chile, in which the state had prohibited a retired admiral
from publishing his book, a critical account of the Chilean Navy, and seized all copies
of the publication.117 The Court held this to be a violation of freedom of expression
and ordered Chile not only to return the stolen copies but also demanded that the state
allow the publication of the work,118 because the American Convention prohibits prior
censorship of publications.
In sum, international human rights bodies follow the general principle of interna-
tional law that restitution should be provided as the remedy for a violation of an inter-
national norm, to the extent that it is possible to do so. A very large number of human
rights violations cannot be redressed through restitution, however, because they involve
loss of life or other harm that preclude the victim from being restored to the pre-violation
condition. In such instances, compensation, rehabilitation, and satisfaction must substi-
tute for what has been lost.

116
  Inter-American Court of Human Rights, Ivcher-Bronstein v. Peru (2001) Series C No. 74.
117
  Inter-American Court of Human Rights, Palamara-Iribarne v. Chile (2005) Series C No. 135
(22 Nov. 2005).
118
  See ibid, 269(9).
 11
Compensation

Both corrective justice (focusing on fairness to the victim) and economic models (focus-
ing on incentives to the wrongdoer) call for damages that equal the full value of the injury
to the victim. They are inevitably retrospective; an ex post remedy that is granted after
harm has occurred. The economic approach to law holds that the wrongdoer should be
made to internalize the costs of causing harm in order to have the optimum incentive to
avoid injuring others.1
The primary function of corrective justice is to rectify the harm done a victim of
wrongdoing.2 Corrective justice generally aims at restitution or compensation for loss,
assuming that when victims are made whole, wrongdoers are sanctioned and deterred
from engaging in future misconduct.3 For many victims of human rights abuses, dam-
ages are important because prospective changes in law or practice resulting from a declar-
atory judgment will usually fail to redress the injuries they suffered due to the violation.
In a case of discrimination in education, for example, a judgment that discrimination
has taken place and must end will not repair the harm done to the student who chal-
lenged the discrimination and may graduate before reforms take effect. The length of
time between a violation and the decision of an international human rights tribunal
also militates in favour of an award of compensation for justice delayed, especially in
response to knowing and deliberate breaches of guaranteed rights.4 The sum of money
awarded should be designed to compensate plaintiffs for harm they have suffered and
make the victim as well off as he or she would have been if the injury had never occurred.
Compensation is a substitute remedy because it is incapable of restoring or replacing
the rights that have been violated and, as a substitute remedy, it is often inadequate to
redress fully the harm. Someone who is physically or emotionally disabled as a result of
torture cannot, by the payment of money, have the capacities restored that were there
originally. Damage awards, however, supply the means to enjoy whatever part of the
former life and projects remain possible and may allow for new activities. For this rea-
son, ‘compensation is inevitably a second-best response that comes into play when full
rectification is impossible’.5 Valuation of loss is nearly always imperfect and may omit
significant wrongs that deserve legal protection: interests in sentiment, autonomy, and
individuality that lack economic expression.

1
  D. Friedman, ‘What is “Fair Compensation” for Death or Injury’ (1982) 2 Int’l Rev. L. & Econ. 81.
2
  Kenneth York & John Bauman, Remedies: Cases and Materials, 3rd edn. (1979).
3
 See J. Love, ‘Presumed General Compensatory Damages in Constitutional Tort Litigation:
A Corrective Justice Perspective’ (1992) 49 Wash. & Lee L. Rev. 69, 79.
4
  The requirement of exhaustion of domestic remedies means often lengthy national procedures
must be undertaken before a case gets to an international tribunal, where the caseload and other
problems, such as late responses by states, can lead to proceedings that take years to conclude. In
the Inter-American system, after undertaking local remedies and proceedings at the Inter-American
Commission, the case may be submitted to the Inter-American Court, where the average length of time
before a case is decided is 21.6 months.
5
  L. Lomasky, Persons, Rights and the Moral Community (1967), 143.
316 The Substance of Redress

The assessment or calculation of damages can be complex. Physical injury, for exam-
ple, can cause harm in two ways: (1) it lowers the level of income received; and (2) it
usually lowers the value of any income that is received, because of the loss of an ability
to enjoy it. In the economic model, if only the first is considered, compensation may be
viewed as ‘inefficient’ because it transfers income from the uninjured who receive large
benefits from it, to injured persons who receive very small benefits. The more serious the
harm, the more adequacy of damages becomes a problem:
Damage awards for pain and suffering, even when apparently generous, may well undercompen-
sate victims seriously crippled . . . Since the loss of vision or limbs reduces the amount of pleasure
that can be purchased with a dollar, a very large amount of money will frequently be necessary to
place the victim in the same position of relative satisfaction that he occupied before the accident.
The problem is most acute in a death case. Most people would not exchange their lives for anything
less than an infinite sum of money if the exchange were to take place immediately.6
Compensation as a remedy can be seen to imply that money can replace the thing
lost, or at least that money is the best alternative when no restitution is possible. From
this perspective, monetary awards to some extent inevitably commodify human rights,
with the purpose of restoring the status quo ante. On the other hand, even if human
rights violations and money are not commensurable, damages are still justified because
an award of damages serves to affirm public respect for the victim and give public recog-
nition of the wrongdoer’s fault in failing to respect basic rights.
Wrongdoing not only harms the victim, it undermines the rule of law and societal
norms.7 The recognition of this aspect of human rights violations has a practical impact
because it may determine whether or not damages are awarded and the amount of com-
pensation given. Viewing compensation as a matter of public policy may lead to more
frequent awards of damages. Indeed, ‘presumed damages’, as discussed below, may be
given for the value of the right violated, even though there is no provable loss. Although
such awards are fundamentally compensatory because they look at the degree of harm
caused, with the aim of making the injured whole, they are nonetheless influenced by the
level of wrongfulness of the conduct.
Courts generally award any of three kinds of compensatory damages: nominal awards
(a small sum of money awarded to symbolize the vindication of rights and make the
judgment a matter of record); pecuniary damages (intended to represent the closest
possible financial equivalent of the monetary loss or harm suffered); and moral damages
(compensation for dignitary violations, including fear, humiliation, mental distress).
This chapter examines domestic and international practice on awards of compensatory
damages, including how such awards are distributed.

11.1  State Practice

States use money to reimburse out-of-pocket expenses and to compensate for provable
future direct and indirect8 losses resulting from wrongful conduct. Most states also com-
pensate for pain and suffering, humiliation and dignitary harm. Some states consider

6
  R. Posner, Economic Analysis of Law, (6th edn, New York, 2003), s. 6.12 at 196.
7
  See G. Calabresi and A. D. Melamed, ‘Property Rules, Liability Rules and Inalienability: One View
of the Cathedral’ (1972) 85 Harv. L. Rev. 1089–1128.
8
  In property cases, a direct loss is a reduction in the value of property presently owned by the injured
party, the amount of which is determined by the cost of replacement or repair. An indirect loss is a loss
of benefits that might be obtained, such as loss of the use of property.
 Compensation 317

pain and suffering under the heading ‘pecuniary harm’ while others consider pain and
suffering as part of intangible losses, compensated by moral damages.
States may use charts or statutory wage grids to assess pecuniary damages9 or limit
judicial discretion for non-pecuniary damages, binding judges to the application of a
legislated ‘Table of Damages for Pain and Suffering’.10 In other states, schedules have
been rejected as a general solution for limiting damages because they often result in giv-
ing too much or too little to the victims.11 These states allow the decision-maker to assess
damages at their discretion on the basis of numerous factors: the extent and duration
of pain; disfigurement; suffering and intrusion; finances of the wrongdoer; and blame-
worthiness of both parties.12 In the absence of guidelines, amounts of pain and suffering
damages can range widely.13
While there are considerable differences in procedural rules among legal systems,
especially between civil law and common law jurisdictions, there is much less variation
in substantive heads of compensation for injury and the basic theory that full com-
pensation should be provided. Compensable injury generally includes the same basic
elements:14
(1) Medical15 and related expenses such as nursing care, or adaptation of the home
for wheelchair access
(2) Loss of past and future earnings or earning capacity16

9
  In Mexico, the Civil Code specifically refers the judge to the Federal Labor Code: ‘When dam-
age is caused to persons and results in death, total or permanent incapacity, partial permanent, total
temporary or partial temporary incapacity, the amount of damages shall be determined according to the
provisions established by the Federal Labor Law’. To calculate the appropriate indemnity one should
take as a base four times the ‘highest minimum daily salary’. In death cases, that sum is multiplied by the
maximum time period for which the law recognizes total permanent incapacity: Mexican Civil Code,
s. 1915(2) (M. Gordon trans., [published]1980).
10
  E.g. in Denmark, pain and suffering is compensated according to set numbers for in- and out-of-
hospital recovery; the standardization rules were set to promote predictability and settlement. In cases
of permanent injury, normative tables set percentages for losses of various limbs or capacities. This is
reduced proportionately for the elderly: D. Mcintosh and M. Holmes, Personal Injury Awards in EU and
EFTA Countries: An Industry Report, (2nd edn, London, 1994), 282, 923.
11
 Ibid, 33.
12
  Case 110–Bundesgerichstof (Great Civil Division) 6 July 1955, BGHZ 18, 149. Norway and
Greece also consider the degree of fault and the financial status of both parties in awarding damages for
pain and suffering.
13
  E.g. English compensation for pain and suffering is viewed as high by European standards: W.H.V.
Roger, J. Spier and G. Viney, ‘Preliminary Observations’, in J. Spier (ed.), Limits of Liability: Keeping
the Floodgates Shut (The Hague, 1996), 7. In Greece, in contrast, damages for non-pecuniary loss must
be reasonable—which in Greek law means lower than full damages: K.D. Kerameus and K. Rousses,
‘Confines and Limitation of Damages Under the Greek Law of Tort’ in Spier, Limits of Liability, supra,
this note, 51. In Germany, damages for non-physical injuries of the body or the health or a deprivation
of freedom, i.e. pain and suffering, are assessed in accordance with severity, magnitude and duration of
the pain, the circumstances of the wrongdoer’s action and its culpability, and the economic situation of
the parties: BGB, s. 847, para. 1.
14
  Art. 199 of the Chinese Civil Code exemplifies a general compensation provision: ‘1. Where
personal injury is caused to a citizen, compensation must be paid for medical expenses, loss of income
from work, expense of living as a disabled person, and similar expenses; when death is caused, there
must also be payment for funeral expenses as well as expenses such as necessary maintenance for the
deceased’s dependants’.
15
  Medical expenses are expressly referred to in, e.g., the Greek Civil Code, Art. 929; German Civil
Code; Argentine Civil Code, Art. 1086; Austrian Civil Code, Art. 1325; Czech Civil Code, s. 449;
Polish Civil Code, Art. 444, para. 1. Reasonable medical expenses can be recovered in full in many
European states and the victim is not limited to the least expensive treatment. See Bernhard A. Koch and
Helmut Koziol (eds.) Compensation for Personal Injury in a Comparative Perspective (Vienna, 2003), 420.
16
  E.g. Austria; Germany; Czech Civil Code, ss. 445–7. Hungary allows claims for future salary
increases, provided these are established with some certainty. By contrast, in Italy the courts have regard
318 The Substance of Redress

(3) Loss of or injury to property, including lost profits17

(4) Pain and suffering and injury to health18
(5) Funeral expenses in wrongful death cases19
(6) Loss of the services of a deceased20 or injured person.21
Some states recognize additional losses, reflecting cultural differences.22 Adjustments
to awards also vary, with most states modifying awards to take into account inflation or
devaluation of currency.23
Although there may be commonality in the categories of compensable harm, national
legal systems vary in the methods used to assess the recoverable elements and in the
amounts awarded. This is not surprising given the differing economic conditions around
the world24 and the differing weight given to the compensatory and deterrent functions
of damages. The level of wrongdoing or degree of suffering is particularly important
where deterrence plays a large role in redress.25 In Sri Lanka, for example, compensation
amounts for pecuniary and non-pecuniary harm due to torture take into account the
severity of the physical or mental pain or hardship caused to the victim; the decline in
income-earning capacity of the victim resulting from physical or mental harm; the age
of the victim and his/her family liabilities in case of harm that cannot be treated; the
estimated expenses of treatment where the harm can be treated; in case of death, the
number of family members dependent on the decedent’s income; the minimum amount
necessary to ensure livelihood; and any other relevant matters presented.

not only to the earning capacity the claimant has already demonstrated but also to the possibilities indi-
cated by his technical and professional training. The Norwegian Penal Code provides that in personal
injury and false imprisonment cases compensation for future loss is paid only as seems equitable con-
sidering the fault of the acting party and all other circumstances of the case. The Swiss federal Code des
Obligations, Arts. 45(2), 46(1) specifies ‘that damages can be given for loss or detriment to one’s future’.
The German Civil Code, s. 842, specifies that damages can be given for loss or detriment to one’s future.
In contrast to the practice of some other states, China allows full recovery of lost wages, but no damages
are awarded for loss of earning capacity. If a person is injured but able to resume work, he or she cannot
recover damages on the theory that the injury will prevent him or her from receiving promotions or
otherwise advancing his or her career: Robert Force and Xia Chen, ‘An Introduction to Personal Injury
and Death Claims in the People’s Republic of China’ (1991) 15 Maritime Lawyer 245.
17
  E.g. Czech Civil Code, ss. 442–3. In Germany restitution is required.
18
  E.g. Austria, Belgium, England, France, Italy, Netherlands, Spain, Sweden, Switzerland.
19
  Contra the Netherlands, based on the rationale that the family would eventually have to pay the
expenses.
20
  E.g. Germany.
21
  States in Europe allow recovery for the cost of substitute services when someone who is injured is
no longer able to look after his or her home; Koch and Koziol, supra n. 15, 424.
22
  The Austrian Civil Code also provides that, where the victim of an injury is of female sex, any dis-
figurement thereby caused to her must be taken into account to the extent that her future advancement
may be hindered (s. 1326). The Greek and Belgian Civil Codes contain similar provisions to compensate
women for economic losses due to reduced marriage prospects in disfigurement cases. France awards
damages for the victim’s lost opportunity of obtaining a promotion in his or her career. It also compen-
sates for loss of leisure and the ability to enjoy sex: Mcintosh and Holmes, supra n. 10, 6.
23
  In Ireland, the award for future loss of earnings incorporates an allowance for inflation and an
allowance for the risk that the injured party might not be employed for all of her or his full working life;
however, it is rare for interest on pre-trial losses to be awarded. In Italy, claims to cover compensation for
monetary devaluation are allowed.
24
  Within Europe, Greek awards are the lowest because the level of earnings is the lowest: Mcintosh
and Holmes, supra n. 10, 6.
25
  East African cases have considered the embarrassment of the plaintiff; the motive or state of mind
of the defendant; aggravation by the defendant’s post-injury conduct; and consequential losses as rel-
evant factors in awarding damages: E. Veitch, East African Cases on the Law of Tort (London, 1972), 178.
 Compensation 319

In other states, wrongdoing is less relevant because ‘[t]‌he purpose of compensation

is to facilitate the injured person’s ability to get well soon and to restore his ability to
manage his own affairs and to work, by means of medical treatment and nourishment’.26
Compensation is thus awarded to victims on the principle of full and fair redress, with-
out regard to the conduct of the injuring party.
The categorization and measurement of pain and suffering is one of the most dif-
ficult issues in damages, with large differences from one state to another, even from one
judge or jury to another.27 Underlying theories vary with some courts taking a functional
approach and seeking to assess the amount that will enable the injured party to acquire
benefits to substitute for those that were lost. Others take a personal approach based on
the injury to the subjective feelings of happiness or unhappiness of the victim. A third
approach considers that the victim has been deprived of an asset which has objective
value in case of loss or damage. Disagreement may be most pronounced on the valuation
of subjective elements such as compensation for back pain or for bereavement in case
of death. In some instances, pain and suffering awards are designed not only to ensure
adequate compensation for damage but ‘to make a statement to tortfeasors that they owe
the victim satisfaction’,28 making them closer to a form of moral damage.
Moral damages are widely recognized as necessary and appropriate to redress
dignitary harm. Nearly all legal systems accept claims for distress, humiliation and
injury to reputation or dignity, for which monetary value must be presumed as there
is no objective economic value to the loss.29 Some states assess compensation for
non-pecuniary harm independently of the amount of pecuniary losses; others link
the amount of moral damages directly to the amount of pecuniary injury, or other-
wise limit awards to a maximum amount.30 In some states, the law may impose a scale
of damages for certain types of harm31 or specify the types of actions or injuries for
which moral damages are recoverable or even define the term moral injury.32 In most

26
  W.C. Jones, Basic Principles of Civil Law in China (Armonk, 1989), 188.
27
  Traditional Islamic law is one of the few legal systems that allows no compensation for pain and
suffering, but modern codes do include them as recoverable damages.
28
  The public interest in redressing and deterring dignitary harm may allow compensation to be
recovered even if the victim is in a coma and unaware of the violation of her or his personal integrity.
B.S. Markesinis, Tort Law (Oxford, 1994), 921.
29
  See: W.V.H. Rogers (ed.), Damages for Non-Pecuniary Loss in a Comparative Perspective (Vienna/
New York, 2001), 301.
30
  E.g. the Colombian Penal Code of 1936, Art. 35, placed a limit on monetary reparation for
non-pecuniary harm.
31
  E.g. a 1971 German statute (BGBl. I 157, s. 7) introduced standardized non-pecuniary compensa-
tion for false imprisonment. The Ethiopian Civil Code, Art. 2116, places a general limit on monetary
reparation for non-pecuniary harm.
32
  Chinese law provides remedies for non-pecuniary harm in Civil Code, Art. 120: ‘Where the right
of a citizen to his name, likeness, reputation or honour is infringed, he has a right to demand that the
infringement cease, the reputation be restored, and the effects [of the infringement] be eliminated,
and to demand an apology; he may also demand compensation for loss. Where the right of a legal
person to its name, reputation or honour is infringed, the above provisions apply’: General Principles
of Civil Law of the People’s Republic of China, trans. H.R. Zheng and W.H. Gray (1986), reprinted in
(1986) 34 Am. J. Comp. L. 715. A 1997 modification to Hungarian law allows ‘compensation for
non-pecuniary detriment insofar as the injurious event impaired the aggrieved individual’s participation
in community activities or otherwise resulted in a continuing or onerous impediment to the conduct
of his life or interfered with a legal entity’s participation in commercial activity’. The Polish Civil Code
allows non-pecuniary damages in cases of personal injury, wrongful death, false imprisonment, sexual
assault, and the intentional interference with personal rights. Mexico’s law refers to el dano moral, ‘moral
320 The Substance of Redress

instances, however, judges or juries have discretion to assess non-pecuniary compen-

sation on an equitable basis.33
Many states take into account the fault of the defendant in making awards of moral
damages.34 Austria, France, Germany, Greece, Italy, Portugal, Switzerland,35 the
Netherlands,36 and Norway take fault into account. In the Danish case of the Scandinavian Star
ferry, the awards were ‘at least 50% above’ the legal compensation levels required by law, prob-
ably because of outrage over the conduct of the defendants.37 States that take fault into account
in assessing moral damages make clear the punitive element inherent in all civil remedies.
In English law, particularly malicious, insulting, or oppressive behaviour can result in
aggravated damages, applied where losses cannot be calculated precisely. Typically this
includes malicious prosecution, false imprisonment, and racial discrimination. The fac-
tors considered in making an award for aggravated damages include: defendant’s behav-
iour; defendant’s intentions or motives; high-handedness; and the effect on the plaintiff.
Aggravated damages are still compensatory in nature, addressing hurt feelings and dignity,
but at times the line between aggravated and punitive damages is hard to discern.38 The law
of damages in South Africa, which was heavily influenced by the Roman-Dutch law,39 also
allows for vindictive damages, nominal damages, and special or sentimental damages.40
In civil actions for human rights violations attributable to the state, monetary dam-
ages are frequently awarded with deterrence as well as compensation in mind.41 High
damage awards are justified because they can force the state to internalize the costs of
its wrongful conduct and deter such behaviour when the expected costs would exceed
the expected benefits. The Indian Supreme Court has awarded compensation for illegal
detention,42 police beatings,43 and wrongful deaths from police shootings.44 In one case,
the court declared that cases of misconduct by state officials should be governed by com-
mon law tort principles of recovery for battery, assault, false imprisonment, physical

damages’, which cover damage to the feelings, affections, beliefs, appearance, honour, reputation, pri-
vate life, physical aspects, or the reactions of others to him or her. The code recognizes that the impact
of the injury will differ depending on the injured person’s profession and income. There is no longer a
limit on the amount of ‘moral damages’. The Mexican Civil Code of 1928, Art. 1916, placed a limit on
monetary reparation for non-pecuniary harm to one-third of the pecuniary harm: The Mexican Civil
Code, trans. Michael W. Gordon (n.p. 1995).
33
  The Bulgarian Act on Obligations and Contracts of 1950, Art. 52, provides that courts should
apply principles of equity when assessing damages for non-pecuniary harm.
34
  E.g. the Austrian Supreme Court takes the view that the wrongdoer pays non-pecuniary damage
only if he acted with intent or gross negligence unless the law specifies otherwise.
35
  Report to the United Nations on Human Rights in Switzerland, HRI/CORE/1/Add.29.
36
  J. Spier, ‘How to Keep Liability Within Reasonable Limits? A Brief Outline of Dutch Law’, in
Limits of Liability, supra n. 13, 97–110.
37
  Mcintosh & Holmes, supra n. 10, 6.
38
 Markesinis, supra n. 28. In Tynes v. Barr, Supreme Court (Bahamas), 28 March 1994, [1996]
1CHRD 116, the Supreme Court awarded aggravated damages because the police delayed in producing
documents, failed to apologize to the victim, and unnecessarily delayed the trial.
39
  After 1879, significant weight was given to English authority on personal injury damages. This has
evolved to a point where liability is determined under Roman-Dutch principles and damages calculated
under the English rules of assessment. See, generally, H.J. Erasmus, ‘The Interaction of Substantive Law
and Procedure’, in R. Zimmerman & D. Visser (eds.), Southern Cross: Civil Law and Common Law in
South Africa (Juta, 1996), 156.
40
 Ibid, 155. 41
  Carey v. Piphus, 435 U.S. 247 (1978).
42
  People’s Union for Democratic Rights v. Police Commissioner Delhi Police 1983–4 S.C.C. 730. In
State of Maharashtra v. Ravikant S. Patil, A.I.R. (S.C.) 871 (1991), the court awarded 10,000 rupees for
violation of the fundamental rights of a detainee who was handcuffed and taken through the streets in a
procession by the police during an investigation.
43
  Saheli v. Commissioner of Police, Delhi 1990–1 S.C.C. 422, A.I.R. (S.C.) 513 (1990).
44
  People’s Union for Democratic Rights v. State of Bihar, 1987-1 S.C.C. 265 A.I.R. (S.C.) 355.
 Compensation 321

injuries, and death. As such, victims could recover damages for mental pain, distress,
indignity, loss of liberty, and death. Romanian case law establishes that compensation
for human rights violations includes costs of medical treatment and recovery and com-
pensation for loss of possessions during imprisonment or infirmity, and moral damages,
including rehabilitation and social reintegration.45
Compensating moral injury caused by deprivation or limitation of rights is impor-
tant because in many cases the victim’s pecuniary losses are minimal, as when states
violate free speech or the right to a fair hearing.

11.2  International Human Rights Practice

Most human rights instruments, like national laws, give only general guidelines for
awards of damages, rarely specifying the types of losses for which compensation is
due and providing almost no meaningful quantitative guidelines for how to compute
those losses that are recoverable. Studies from national legal systems indicate that in
many instances a lack of direction on this matter leads to under-compensation of
victims.46
UN treaty bodies often call for compensation when they find violations of guaranteed
rights, but they never quantify the amount due. This is also the practice of the African
and Inter-American human rights commissions. The African Commission, which has
decided very few cases involving a claim for compensation,47 accepts in principle the
need for an award of compensation, but in response to the first such request from an
applicant, sent the matter back to the domestic system to set the quantum. In contrast
to the practice of these monitoring bodies, the European and Inter-American Courts
both award compensation and hold that all issues concerning an award of compensatory
damages are governed by international law.

11.2.1 The European Court of Human Rights

The European Court can award monetary compensation pursuant to ECHR Article
41 ‘if necessary’ and does so for pecuniary losses, non-pecuniary damage, and costs and
expenses. The amounts of all but proven pecuniary losses are assessed on an ‘equitable’
basis because the Court holds that it ‘enjoys a certain discretion’ in the exercise of its

45
  Right to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human
Rights and Fundamental Freedoms, Report of the Secretary-General Prepared Pursuant to Commission
Resolution 1995/34, E/CN.4/1996/29/Add.3 at 4 (1996).
46
  Even in the USA, where tort litigation is most common, the findings of several studies suggest
that the legal system usually fails to compensate adequately. ‘So little compensation is achieved through
the tort system that only as an act of hyperbole can it be said to be part of an injury compensation sys-
tem’: S.S. Huebner & K. Black, Jr., Life Insurance, (7th edn, New York, 1969), 186. However, it may be
doing better as a deterrent because many people overestimate the vigilance of the system and magnitude
of its sanctions.
47
  Case 59/91, Embga Mekongo Louis v. Cameroon, 8th Annual Report of the ACHPR 1994–5,
ACHPR/8th/ACT/RPT/XVII, Annex IX. Embga Mekongo, a Cameroonian citizen, alleged false
imprisonment and miscarriage of justice. The Commission found that the author had been denied due
process, contrary to Art. 7 of the African Charter and had suffered damages, but ‘[b]‌eing unable to deter-
mine the amount of damages, the Commission recommends that the quantum should be determined
under the law of Cameroon’: ibid.
322 The Substance of Redress

remedial powers.48 Any award depends upon a finding that a violation occurred49 and that
the violation caused the harm.50
Claims for nominal or symbolic sums have been rejected in most cases,51 but in Engel and
others v. The Netherlands,52 ‘a token indemnity’ of 100 Dutch guilders (approximately US$50)
was awarded for an unlawful detention in ‘strict arrest’ that lasted between twenty-two and
twenty-six hours. The detention had already been largely remedied because the applicant
did not have to serve a two-day sentence for the offence of which he was convicted; the ear-
lier detention was set off against the penalty. The Court emphasized that the set-off did not
constitute restitutio in integrum (as one freedom can never substitute for another deprivation
of freedom), but found ‘it is nevertheless relevant’ in the context of redress.53 In other cases,
the amounts of even small fines imposed in violation of freedom of information (Art. 10) are
routinely awarded as pecuniary damages upon a finding of violation.54
The Court generally takes into account the seriousness of the violations in awarding
damages,55 holding that substantive violations of the right to life, prohibition of torture,
and deprivation of liberty are particularly serious. Judge Pinheiro, among others, has
expressed the view that unlawful detention must always be compensated56 and the Court
seems to be moving in this direction with respect to several rights. In Brincat and Others
v. Malta,57 the Court affirmed that in the event of a breach of ECHR Articles 2 and 3,
compensation for the non-pecuniary damage flowing from the breach should in princi-
ple be available as part of the range of possible remedies; this is also the case with some
breaches of Article 8, at least when they involve threats to life or physical integrity.58 The
Court continues to provide smaller damages for procedural violations, seeing an inher-
ent uncertainty in the consequences of the violation.59 In general, the state’s conduct or

48
  European Court of Human Rights, Handyside v. United Kingdom (1976) Series A No. 24.
49
  European Court of Human Rights, Lawless v. Ireland (1961) Series A No. 3, (1979–80) 1 EHRR
15; National Union of Belgian Police v. Belgium (1975) Series A No. 19, 22, para. 50, 1 EHRR 578;
Swedish Engine Drivers’ Union v. Sweden (1976) Series A No. 20, 18, para. 51, 1 EHRR 617; Schmidt
and Dahlstrom v. Sweden (1976) Series A No. 21, 18, para. 43, 1 EHRR 637; Kjeldsen, Busk Madsen and
Pedersen v. Denmark (1976) Series A No. 23, 29, para. 58, 1 EHRR 711; Handyside v. United Kingdom
(1976) Series A No. 24, 31, para. 67, 1 EHRR 737.
50
  Airey v. Ireland (1981) Series A No. 41 (Art. 50), 8–9, para. 12, 2 EHRR 305.
51
  See e.g. European Court of Human Rights, Lehideuz & Isorni v. France, 23 Sept. 1998, (2000) 30 EHRR
665 (Art. 10). The applicant asked for one French franc in symbolic damages and the Court rejected the request.
52
  European Court of Human Rights, Engel and others v. The Netherlands (1976) Series A No. 22.
53
  The other defendants in the case, who complained of a hearing in camera, were found not to
have suffered any damage, ‘indeed the said [national] Court improved the lot of two of their number’.
Therefore the judgment alone was held to be just satisfaction. Ibid para. 11.
54
  See European Court of Human Rights, Lopes Gomes da Silva v. Portugal, 28 Sept. 2000, ECtHR
Reports 2000-X 85, (2002) 34 EHRR 56; Ibrahim Aksoy v. Turkey, 10 Oct. 2000, (2002) 34 EHRR 57;
Bladet Tromso & Stensaas v. Norway; 20 May 1999, ECtHR Reports 1999-III 289, (2000) 29 EHRR
125; Fressoz & Roire v. France, 21 Jan. 1999, ECtHR Reports 1999-I 1, (2001) 31 EHRR 28; Nilsen
& Johnsen v. Norway, 25 Nov. 1999, ECtHR Reports 1999-VIII 57, (2000) 30 EHRR 878; Erdogdu
v. Turkey, 15 June 2000, ECtHR Reports 2000-VI 397, (2002) 34 EHRR 60.
55
 See Aksoy, supra n. 54, and Aydin (1997) Application No. 23178/94 (judgment of 27 Sept. 1997),
and Assanidze v. Bulgaria (1999) 28 EHRR 652; Tekin v. Turkey (2001) 31 EHRR 95; Perks v. United
Kingdom (2000) 30 EHRR 33.
56
  See European Court of Human Rights, Fox, Campbell and Hartley (1990) Series A No. 182.
57
  Brincat and Others v. Malta, (2014) Application Nos. 60908/11, 62110/11, 62312/11 (extracts).
58
  See also O’Keeffe v. Ireland [GC] (2014) Application No. 35810/09 (extracts). The Court held that
the criminal conviction of the perpetrator of sexual abuse on a minor could not be said to constitute an
‘effective remedy’ for the applicant within the meaning of Article 13 of the Convention, because she had
no procedure available by which to establish possible state liability for failing to protect her from the
abuse to which she had been subjected.
59
  See: European Court of Human Rights, Paulsen-Medalen and Svensson v. Sweden (1998) 26 EHRR
260; Nikolova v. Bulgaria (2001) 31 EHRR 64 (11–6 judgment); Migon v. Poland, 25 June 2002,
Application No. 24244/94.
 Compensation 323

mode of perpetrating the violation has an impact on the amount of compensation,60 as

does the conduct of the applicant, and the underlying merits of the complaint.61
During its first decade of judgments, 1971 to 1981, the original European
Court awarded pecuniary or non-pecuniary damages in seven out of ten claims for
just satisfaction.62 From 1982 to 1991, the Court awarded damages in all but eleven of
the 152 cases decided during this period where at least one violation was found; thus,
the impression that the prior Court normally awarded no compensation is wrong. In the
overwhelming number of instances, the award was for non-pecuniary or moral damages.
Thirty-six claims of pecuniary damage were rejected because the Court found no causal
link between the violation and the claim; three other claims were found to be ‘speculative’.
Only one judgment of the court awarding compensation before the beginning of
1992 was taken by the Court sitting in plenary session and only two cases involved a
decision that was not unanimous. It appears, then, that damages were more likely to be
awarded for routine and non-controversial substantive violations or procedural viola-
tions where there was a pattern of non-compliance. Damages were more likely to be
denied when the court was split on the merits or where the violations were in criminal
proceedings and deemed not to have affected the ultimate judgment of the applicant’s
guilt or innocence.
Before 1998, the European Court awarded the full amount of the damages and costs
claimed by the applicant in just over half a dozen judgments.63 The conduct of the
government seems to have been an important factor in all the decisions. X. v. France64
presented a case concerning French haemophiliacs who contracted AIDS through con-
taminated blood transfusions knowingly made by the government. The applicant, who
died at age 29, had received transfusions and was one of some 400 persons found to have
received the HIV virus from the tainted blood. The Court found a violation of Article
6(1) in the delay of proceedings regarding state responsibility for the contamination.
The Court awarded the entire amount sought in compensation as well as all the costs
claimed. In Aksoy v. Turkey,65 the European Court’s first decision finding a state respon-
sible for torture leading to paralysis of the applicant’s arms, the victim was also (posthu-
mously) awarded the total amount he had requested.
Five of the cases where the applicants received all the compensation they claimed
are among the multitude of applications against Italy because of failures in its judicial
system. Hundreds of judgments have been rendered over the past two decades in which

60
  European Court of Human Rights, Halford v. UK (1997) 24 EHRR 523; Smith and Grady v. UK
(2001) 31 EHRR 24. In Tas v. Turkey (2001) 33 EHRR 325 and Kurt v. Turkey (1999) 27 EHRR 373,
the indifference and callousness of authorities counted in assessing damages. See also Keenan v. UK
(2001) 33 EHRR 913.
61
  European Court of Human Rights, Minelli v. Switzerland (1983) 5 EHRR 554.
62
  The Court awarded compensation in European Court of Human Rights, Ringeisen v.  Austria
(1972) Series A No. 15; Engel and others v. The Netherlands, supra n. 52; Deweer v. Belgium (1980)
Series A No. 35; Konig v. Germany (1980) Series A No. 36 (Art. 50); Artico v. Italy (1980) Series A No.
37; Guzzardi v. Italy (1980) Series A No. 39; and Airey v. Ireland, supra n. 50. The judgment was found
to afford sufficient satisfaction for non-pecuniary harm in De Wilde, Ooms and Versyp v. Belgium (the
Vagrancy cases) (1972) Series A No. 15 (Art. 50); Neumeister v. Austria (1974) Series A No. 17 and
Marckx v. Belgium (1979) Series A No. 31. In Sunday Times v. United Kingdom (1980) Series A No.
38 (Art. 50) and Tyrer v. United Kingdom (1978) Series A No. 26 no claim was made for pecuniary or
non-pecuniary damages, although costs and fees were requested and granted.
63
  European Court of Human Rights, Triggiani v. Italy (1991) Series A No. 197; Caleffi v. Italy (1991)
Series A No. 206; Vocaturo v. Italy (1991) Series A No. 206; X. v. France (1992) Series A No. 236; Salese
v. Italy (1993) Series A No. 257; Scollo v. Italy (1995) Series A No. 315; and Aksoy v. Turkey, Judgment
of 18 Dec. 1996, 26, Reports of Judgments and Decisions [hereinafter Reports] 1996-VI, 2263, (1997)
23 EHRR 553.
64
  X. v. France, (1992) Series A No. 234C. 65
  Aksoy v. Turkey, supra n. 63.
324 The Substance of Redress

applicants have alleged excessive delays in civil and criminal proceedings. It is unclear
why these five cases among the many decisions resulted in full awards, while others
received only a portion of their claim or a decision that the judgment constituted just
satisfaction for moral damages. It does seem clear that for a long period the governments
involved have chosen to pay damages rather than repair the Italian legal system; the
larger awards may have been deemed necessary to exert pressure for change.
The full-time Court inaugurated in 1998 has continued the practices of its predeces-
sor. Those cases where applicants request and are awarded moral damages involve civil
proceedings approximately three times more frequently than criminal ones, although
cases originating with detainees are filed more frequently. Claims of pecuniary loss con-
tinue to be rejected frequently for lack of adequate proof. In general, stringent require-
ments of proof and causality have made it difficult for applicants to demonstrate a
connection between the claimed loss and the violation, but if such evidence is submitted,
no case has arisen where a request for pecuniary damages has been rejected on the basis
that the finding of violation alone is enough. The judgment is considered satisfaction in
itself only for moral damages.
The European Court has awarded pecuniary damages for injury to or loss of real or
personal property and profits;66 fines and costs incurred in domestic proceedings linked
to the violation;67 loss of past and future earnings and pension rights;68 loss of business
opportunities;69 and past medical expenses.70 The Court only recently began awarding
future medical expenses; in Z. v. United Kingdom71 the applicants alleged that a local
authority, aware of the circumstances, failed to protect them from abuse and neglect by
their parents. The Court awarded the children future lost earnings and future medical
expenses as well as non-pecuniary damages for psychiatric harm.
As Z. v. the United Kingdom indicates, the Court may award non-pecuniary dam-
ages for psychological harm.72 It has also made such awards for distress;73 frustration;74
inconvenience;75 humiliation;76 anxiety;77 loss of reputation;78 sense of injustice79 and
loss of relationship.80 These subjective and intangible injuries are not matters for which
proof can be introduced and the Court generally presumes the harm based on its own

66
  European Court of Human Rights, Hentrich v. France (1994) Series A No. 296; Open Door and
Dublin Well Woman v. Ireland (1993) Series A No. 246 (judgment of 29 Oct. 1992).
67
  Deweer, supra n. 62 and Lingens v. Austria (1986) Series A No. 103.
68
  European Court of Human Rights, Young, James and Webster (1981) Series A No. 44.
69
  European Court of Human Rights, Allenet de Ribemont v. France (1995) Series A No. 308, (1995)
20 EHRR 557.
70
  Aksoy, supra n. 63.
71
  European Court of Human Rights, Z. v. United Kingdom (2002) 34 EHRR 3, para. 73. The Court
awarded £32,000 to each applicant for non-pecuniary damages due to the severe abuse suffered over
four years. The Court also awarded £39,000 in costs and fees on a claim of £52,781, saying the case
involved important and complex issues.
72
  Aydin, supra n. 55.
73
  European Court of Human Rights, Hokkanen v. Finland (1994) Series A No. 299.
74
  European Court of Human Rights, Van Der Leer v. The Netherlands (1990) Series A No. 170.
75
  European Court of Human Rights, Olsson v. Sweden (No. 2) (1990) Series A No. 250.
76
  Young, James and Webster, supra n. 68.
77
  European Court of Human Rights, López Ostra v. Spain (1994) Series A No. 303C.
78
  European Court of Human Rights, Sakik v. Turkey (1998) 26 EHRR 662.
79
  In European Court of Human Rights, Devlin v. United Kingdom (2002) 34 EHRR 43, the appli-
cant was denied access to a court to have his claim heard and the Court awarded £10,000 after finding
that the denial of an opportunity to prove that he was a victim of unlawful discrimination resulted in
frustration and a sense of injustice. See also Devenney v. United Kingdom (2002) 35 EHRR 24.
80
  European Court of Human Rights, W. v. United Kingdom (1988) Series A No. 136-C.
 Compensation 325

experience and the nature of the violation.81 The Court has also settled that companies
can suffer non-pecuniary losses.82
During the past decade, the European Court has increased the sums awarded with
regard to Articles 2, 3, and 4 (right to life, freedom from torture and inhumane treat-
ment, and freedom from slavery and forced labour), while reducing amounts with regard
to other articles, in particular Article 6. The unpredictable outcome of litigation has led
to several suggestions to improve the Court’s practice on remedies. Lord Woolf ’s 2005
report on the Court recommended that it publish guidelines on rates of compensa-
tion in order to ‘assist and encourage Parties to resolve cases domestically’.83 During the
reform process, there was also a proposal that, after finding a violation, the Court should
remand cases to local courts and other authorities to remedy the violation and set the
amount of compensation due, following the UN practice. However, the UN practice
is inadvisable; any state involved in proceedings before the European Court has already
had the opportunity to remedy the violation and compensate the victim during prior
domestic proceedings, but failed to do so. Remand would likely result in many cases
returning to the Court from applicants alleging the inadequacy of the remedies provided
or the insufficiency of amounts of compensation. The Court has in fact been reluctant to
have this task returned to the national level.84
In setting the amount of compensation, the Court will review amounts already pro-
vided by national organs during domestic proceedings, and may reduce the amount of
compensation it awards applicants in order to avoid excessive recovery.85 Conversely, the
Court may award an additional amount if it determines that the domestic authorities
exceeded their margin of appreciation by awarding disproportionately low compensa-
tion,86 or make no award if it deems the sum previously awarded to be adequate.87 In
sum, as Judge Sajó has noted, the Court evaluates the adequacy of the redress provided
at the domestic level for purposes of the right to a remedy guaranteed by Article 13.88
As for the Court’s own awards, a review of the jurisprudence reveals that it has not
been very generous or coherent regarding compensation for non-pecuniary damage, at
least compared to the Inter-American Court of Human Rights. Although it is true in
many cases, as the European Court has noted, that ‘the sorrow and pain suffered by the
[applicants] cannot be compensated even if huge amounts were awarded’,89 such a find-
ing should not afford a pretext for awarding minimal or no compensation. Some authors

81
  See European Court of Human Rights, Abdulaziz, Cabales and Balkandali v. United Kingdom
(1985) Series A No. 94, para. 7.
82
  See European Court of Human Rights, Comingersoll SA v. Portugal (2001) EHRR 772.
83
  The Right Honourable The Lord Woolf et al., Review of the Working Methods of the European Court of
Human Rights, available at http://www.echr.coe.int/LibraryDocs/Lord%20Woolf-2005-EN1587818.
PDF, 68.
84
  European Court of Human Rights, Opinion of the Court on the Wise Persons’ Report, available at
http://www.echr.coe.int/Documents/2007_Wise_Person_Opinion_ENG.pdf, para. 6.
85
  European Court of Human Rights, Tomasic v. Croatia, (2006) Application No. 21753/02, para.
13, awarding the applicant €50,000 for non-pecuniary damage after considering the amounts awarded
in national proceedings. In Oyal v. Turkey, (2010) Application No. 4864/05, para. 100, the government
argued that ‘the domestic courts had already awarded the applicants sufficient compensation for the
damage incurred by them’ but the Court nonetheless awarded EUR 300,000 in respect of past pecuni-
ary damage: ibid, paras. 71–73.
86
  European Court of Human Rights, Trevalec v. Belgium, (Just Satisfaction) (2013) Application
No. 30812/07, paras. 25–27. See also Vistins and Perepjolkins v. Latvia [GC] (2012) Application No.
71243/01.
87
  European Court of Human Rights, Ioannis Anastasiadis and Others v. Greece, (2013) Application
No. 45823/08, para. 43.
88
  Partly Concurring and Partly Dissenting Opinion of Judge Sajó, Oyal v. Turkey, supra n. 85.
89
  Ibid, para. 106.
326 The Substance of Redress

have urged the Court to publish the method it uses to calculate compensation90 even if
in some circumstances a precise calculation may be difficult to make.91
The European Court has come to recognize the need for greater consistency as well
as proportionality in determining compensation. It held in the Guiso-Gallisay v. Italy
judgment,
[t]‌he criteria to be used in assessing damages for the purposes of Article 41 should satisfy the
requirements of uniformity, simplicity, clarity and foreseeability. In particular, they must be such
as to create a serious and effective means of dissuasion with regard to the repetition of unlawful
conduct of the same type, without however assuming a punitive function.92
One controversial issue concerns adjusting compensation to match the living stand-
ards in each country.93 It may be argued that the value of a life should be the same in every
country once a violation has been found. Yet, the value of the compensation awarded
differs considerably across Europe.94 Some states and judges have asked the Court to
adjust compensation to the country’s economic environment, a position which has not
been expressly supported by the Court,95 except in regard to lawyers’ fees.

11.2.2 The Inter-American Court of Human Rights

In its first thirty-six years, between 1978 and the end of 2014, the Inter-American Court
issued nearly three hundred judgments, in most of which it awarded compensation and
other remedies. Despite a certain lack of consistency in the opinions, which is perhaps
attributable to changes in the composition of the Court over time, the Court’s judg-
ments have contributed greatly to the development of human rights law. The Court
has discussed ‘aggravated’ violations and the consequences thereof, presumed injury,
collective damages, and the definition of victim. Recently, the Court appeared to adopt
notions of transitional justice in suggesting that states may not have to award full repara-
tions after widespread violations have taken place.
Velásquez-Rodríguez v. Honduras and Godínez-Cruz v. Honduras, the first conten-
tious cases decided by the Court,96 set forth many of the doctrines that continue to be
applied today. On the merits, the Court found the government responsible for forced
disappearances and asked the parties to negotiate an agreement on the amount of dam-
ages, noting the impossibility of restitution under the circumstances.97 The Court kept

90
  P. Tavernier, ‘La contribution de la jurisprudence de la Cour européenne des droits de l’homme
relatif au droit de la responsabilité en matière de la réparation: Une remise en cause necessaire’, (2007)
72 Revue trimestrielle des droits de l’homme 955, 961–962. See: Octavian Ichim, Just Satisfaction under
the European Convention on Human Rights (Cambridge, 2015).
91
 European Court of Human Rights, Mikheyev v.  Russia, (2006) Application No. 77617/01,
para. 158.
92
  European Court of Human Rights, Guiso-Gallisay v. Italy (Just Satisfaction) (2009) Application
No. 58858/00, para. 85.
93
 Tavernier, supra n. 90, 953.
94
  See Dissenting Opinion of Judge Pavlovschi, Istrate v. Moldova (2006) Application No. 53773/00:
‘I consider that this amount, 25,000 euro is far too excessive and does not take into consideration either
the realities of life in the Republic of Moldova or our previous case-law’.
95
  See: European Court of Human Rights, Swierzko v. Poland, Application No. 9013/02, para. 37.
96
 Inter-American Court of Human Rights, Velásquez-Rodríguez Case (Merits) (1988) Series C
No. 4; Godínez-Cruz Case (Merits) (1989) Series C No. 5.
97
  Velásquez-Rodríguez Case (Merits), supra n. 96 191–92. In the Godínez-Cruz Case, supra n. 96, the
Court held it would fix the amount of the compensation in execution of the judgment, after hearing the
interested parties, unless they reached an agreement in the interim. As in the Velásquez-Rodríguez Case,
the Court reserved the right to approve any such agreement.
 Compensation 327

the cases open to approve any agreement reached or to set the amount and manner of
payment in the absence of agreement.98 The Court clearly recognized the importance
of the precedent that these cases would set on the subject of remedies. By resolution, it
authorized the Court’s president to initiate whatever studies and name whatever experts
might be convenient to determine the elements necessary to set the form and amount
of compensation.99 When the parties failed to reach agreement, the cases returned to
the Court for judgment, with Honduras arguing that the applicants should receive ‘the
most favourable benefits’ that Honduran legislation provided for Hondurans in the case
of accidental death.
The Court considered at length the basis for an award of damages, noting that inter-
national law requires restitution of the status quo ante where possible and compensation
where it is not possible, citing the judgment of the International Court of Justice in the
Chorzów Factory Case and the ICJ advisory opinion Reparation for Injuries Suffered in the
Service of the United Nations.100 It added:
Reparation of harm brought about by the violation of an international obligation consists in
full restitution (restitutio in integrum), which includes the restoration of the prior situation,
the reparation of the consequences of the violation, and indemnification for patrimonial and
non-patrimonial damages, including emotional harm.101
The Court emphasized that the law on damages for human rights violations, includ-
ing their scope, characteristics, beneficiaries, and mode of payment is governed by inter-
national law, not provisions of domestic law.102 Separating future action from redress of
past acts, the Court reminded the state that it must conform to the American Convention
and ensure the enjoyment of the right or freedom that was violated, apart from provid-
ing reparations for violations that already occurred. Where a violated right cannot be
restored, compensation must be in an amount sufficient to remedy all the consequences
of the violation that took place, based on a prudent estimate of pecuniary damages and
assessment of moral damages on the basis of equity. Finally, the Court stated that resti-
tutio in integrum is ‘one way in which the effect of an international unlawful act may be
redressed, but it is not the only way in which it must be redressed, for in certain cases such
reparation may not be possible, sufficient or appropriate’.103
Later cases have become much larger, sometimes including hundreds of victims.
While these cases often conclude with orders of wide-ranging non-monetary remedies
and collective redress for communities,104 they have produced inconsistent and some-
times troubling results in widely varying awards of individual compensation. It some-
times appears in otherwise similar cases that the greater the number of victims, the less
each individual will receive in compensation. In Plan de Sánchez and Sawhoyamaxa, the
Court granted $20,000 to each victim, while in Moiwana the amount was $10,000 per

98
 Ibid.
99
  Inter-American Court of Human Rights, Velásquez-Rodríguez Case (Compensatory Damages)
(1990) Series C No. 7, para. 4.
100
  According to the Inter-American Court, ‘[i]‌t is a principle of international law, which jurispru-
dence has considered “even a general concept of law”, that every violation of an international obligation
which results in harm creates a duty to make adequate reparation. Compensation, on the other hand,
is the most usual way of doing so (Factory at Chorzów, Jurisdiction, Judgment No. 8 [1937] PCIJ, Series
A, No. 17, 29; Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ
Reports 1949, 184)’.
101
  Velásquez-Rodríguez Case (Compensatory Damages), supra n. 99, paras. 6, 25–6.
102
  Ibid, para. 44. 103
  Ibid, para. 49 (emphasis in original).
104
  See Chapter 12, infra. See also Pablo de Greiff (ed.), ‘Justice and Reparations’ in The Handbook of
Reparations, (2006), 451, 466.
328 The Substance of Redress

survivor. In the much larger case of Rio Negro, where there were 382 victims, the Court
granted $30,000 in combined material and moral damage for each victim of forced
disappearance, and lesser amounts for others. By way of contrast, in Gudiel Álvarez
v. Guatemala, the Court granted $80,000 in moral damages to the estates of each of 26
victims of forced disappearance.105 Noteworthy is the fact that in all of these cases, the
Court also ordered the state to engage in community development programs that could
directly benefit the victims106 and the cases concerned indigenous communities where
additional claims were made for collective redress. The Court may have been operating
on the unspoken assumption that in such instances, individual compensation is less in
keeping with the cultural norms of the community.
The Inter-American Court is less rigid than the European Court on proof of pecuni-
ary loss. The Court has reiterated that the calculation of the compensation is not neces-
sarily based on static and rigid formulas, but will vary according to the circumstances of
each specific case, the evidence obtained, and the criteria used for its determination. The
Court will even presume pecuniary losses in some instances and make awards on the basis
of equity.107 In Plan de Sánchez, the Court characterized the material loss from a massacre
as a disruption of ‘agricultural and employment activities’. It then presumed damages, in
equity, to consist of $5,000 per victim in pecuniary damages.108 In Moiwana, the Court
similarly presumed ‘on grounds of equity’ damages in an amount of $3,000 per survivor.
In Saramaka,109 the Court ordered Suriname to pay $75,000 for the timber taken from
the applicants’ land and related property damage, although the estimated damage was
vastly greater than the sum awarded. In Fernández-Ortega and Rosendo-Cantú, the court
found that the victims were unable to work their land owing to several violations, and
estimated lost earnings ‘based on the annual value of the harvest produced from their
plot of land’.110 When it is not possible to establish or presume loss of earnings, the Court
does not provide compensation.111
When determining compensation for pecuniary damage, the Court includes conse-
quential damages for the expenses of medical and psychological treatment, transporta-
tion of victims and their next of kin, the search for and determination of the whereabouts
of victims, funeral and burial services, food and accommodation, telephone calls and
fax services, displacement, and loss of land and possessions. Compensation for future
medical and psychological expenses incurred by victims were once included within

105
  Inter-American Court of Human Rights, Gudiel Álvarez (Military Journal) v. Guatemala (2012)
Series C No. 253. In setting the amount, the Court indicated that it was taking into account its case
law on disappearances, ‘as well as the circumstances of this case, the magnitude, nature, and gravity of
the violations committed, the sufferings caused to the victims and their next of kin, the time that has
passed since the disappearances began and the denial of justice, and the impunity of the facts for more
than 25 years’: ibid, para. 371.
106
  See Inter-American Court of Human Rights, Saramaka People v. Suriname (2007) Series C No.
172, para. 200.
107
  The Court resorted to equity in the case of Bueno Alves v. Argentina, bearing in mind that ‘there
was no proof of the income that Mr Bueno Alves received prior to the acts of torture’, of which he was
a victim. The Court took into consideration documentation submitted regarding the average income
earned in the construction sector, his work disability, and considering that there is no certainty that he
received income from any other activity.
108
  Inter-American Court of Human Rights, Plan de Sánchez Massacre v. Guatemala (2004) Series C
No. 116, para. 93. The Court also awarded moral damages.
109
  Saramaka People v. Suriname (2007) supra n. 106, para. 153. See also Inter-American Court of
Human Rights, Indigenous Community Kichwa of Sarayaku v. Ecuador (2012) Series C No. 254.
110
  Inter-American Court of Human Rights, Fernández-Ortega et  al. v. Mexico (2010) Series C
No. 215, para. 288.
111
  Inter-American Court of Human Rights, Ricardo Canese v. Paraguay (2004) Series C No. 111.
 Compensation 329

moral damages, rather than material damages, perhaps because of their speculative
character.112 Starting with Nineteen Tradesmen v.  Colombia,113 the Court shifted its
approach to require the state to provide, through its national health institutions, free
medical and psychological care to the victims and their family members. Such treatment
must take into account the particular circumstances and needs of each of the next of kin,
so that they can be provided with collective, family or individual treatment, as agreed
with each of them and following individual assessment.114 The shift avoids speculative
monetary awards, but restricts the options for the victims, although it does preserve
some autonomy by requiring the consent or agreement of the individuals.
The Court has occasionally sent back to domestic courts the determination of the
amount due to compensate pecuniary harm, but has never done so for moral damages.
In the case of the Constitutional Court v. Peru, the Court determined that local proce-
dures should set amounts due to the applicants for back pay and other employment
benefits.115 Apart from employment cases, the Court has sometimes referred back prop-
erty cases, ‘given the complexity of determining the commercial value of a company,
which could include, inter alia, its capital, the financial situation, the capital invest-
ments, property and securities, assets and liabilities, operating flows, market potential
and other matters’.116 In the case of Cesti Hurtado v. Peru, the Court justified return-
ing cases when ‘the internal courts or the specialized national institutions have specific
knowledge of the branch of activity to which the victim was dedicated’. In the case of the
Miguel Castro Castro Prison v. Peru, the Court established general amounts based on the
partial or permanent disability suffered but, lacking the evidence to determine individu-
ally in which category each of the surviving victims should be included, indicated that
the determination must be made by domestic bodies specialized in the classification of
injuries and disabilities.
As in the European Court, the Inter-American Court takes into account compen-
sation amounts already provided by the state.117 If that amount is adequate, as the
Court found in the case of Almonacid Arellano v. Chile, the Court will not order fur-
ther compensation. In other cases, the Court may deduct or allow the state to deduct

112
  See, e.g., Inter-American Court of Human Rights, Molina-Theissen v. Guatemala (2004) Series C
No. 108, para. 71; Bulacio v. Argentina (2003) Series C No. 100, para. 100; Cantoral-Benavides v. Peru
(2001) Series C No. 88, para. 50; Blake v. Guatemala (1999) Series C No. 48; Loayza-Tamayo v. Peru,
(1998) Series C No. 42, para. 129(d).
113
 Inter-American Court of Human Rights, Nineteen Tradesmen v.  Colombia (2004) Series C
No. 109.
114
  Ibid, para. 278. See, for similar awards: Inter-American Court of Human Rights, Ituango Massacres
v. Colombia (2006) Series C No. 148 (1 July 2006); Baldeón-García v. Peru (2006) Series C No. 147
(6 Apr. 2006); Sawhoyamaxa Indigenous Cmty v. Paraguay (2006) Series C No. 146 (29 Mar. 2006);
Pueblo Bello Massacre v. Colombia (2006) Series C No. 140 (31 Jan. 2006); García-Asto v. Peru (2005)
Series C No. 137 (25 Nov. 2005); Gómez-Palomino v. Peru (2005) Series C No. 136 (22 Nov. 2005);
Mapiripán Massacre v. Colombia (2005) Series C No. 134 (15 Sept. 2005); Raxcacó-Reyes v. Guatemala
(2005) Series C No. 133 (15 Sept. 2005); Gutiérrez-Soler v. Colombia (2005) Series C No. 132 (12 Sept.
2005); Fermín-Ramírez v. Guatemala (2005) Series C No. 126 (20 June 2005); Yakye Axa Indigenous
Cmty v. Paraguay (2005) Series C No. 125 (17 June 2005); Caesar v. Trinidad & Tobago (2005) Series
C No. 123 (11 Mar. 2005); Serrano-Cruz Sisters v. El Salvador (2005) Series C No. 120 (1 Mar. 2005);
Berenson-Mejía v. Peru (2004) Series C No. 119 (25 Nov. 2004); Plan de Sánchez Massacre v. Guatemala
(2004) Series C No. 116 (19 Nov. 2004); De la Cruz-Flores v. Peru (2004) Series C No. 115 (18 Nov.
2004); Juvenile Reeducation Inst. v. Paraguay (2004) Series C No. 112 (2 Sept. 2004).
115
  See also Inter-American Court of Human Rights, Baena Ricardo et al. v. Panama (2001) Series
C No. 72.
116
  Inter-American Court of Human Rights, Chaparro Álvarez and Lapo Iñiguez v. Ecuador (2007)
Series C No. 170.
117
 E.g. Pueblo Bello Massacre v. Colombia, supra n. 114.
330 The Substance of Redress

compensation already provided or to be provided.118 Similarly, also, to the situation in

the European system, some states have argued that the Court should adjust awards to
take into account their limited financial resources and economic situation. The Court
has responded mainly by adjusting the terms of payment, not the amounts due, at least
when the victims’ representatives agree.119

11.3  Pecuniary Damages

Pecuniary losses include the value of the thing to which the plaintiff was entitled and
any special/consequential harm or losses, such as lost profits, resulting from harm to the
thing to which the plaintiff was entitled. Damages are thus an award of the reasonable
costs of procuring a substitute for the things lost.120 In the European Court of Human
Rights, compensatory damages have been awarded for lost earnings, pensions,121 fines
and interpreter’s costs wrongly paid122 and reduction in the value of property.123 Lost
opportunity costs are sometimes awarded as well, particularly where pecuniary damage
is clear, but the amount is often difficult to quantify or assess.124
In very few cases has the European Court assessed pecuniary damage with precision.
In most cases, a lump sum is awarded which includes moral damages and costs and
expenses, making it impossible to determine the basis for the award. While lump sum
awards are easy for the Court, they can present practical problems for the applicant and
government. As noted below, some countries exempt only moral damages from taxation
or attachment. Given such difficulties, the Court should always distinguish pecuniary
and non-pecuniary awards.
The European Convention on the Compensation of Victims of Violent Crimes,125
which encompasses human rights violations and could provide guidance to litigants and
the European Court, provides that compensation shall cover at least the following: loss
of earnings; medical, hospitalization, and funeral expenses; and, for dependants, loss of
maintenance.126 National compensation schemes may set upper limits of compensation
and a de minimis standard. Article 7 allows compensation to be reduced or refused on
account of the applicant’s financial situation.

118
  See Inter-American Court of Human Rights, Rochela Massacre v. Colombia (2007) Series C No.
163, allowing the state to deduct the amount granted for loss of income to each family in the domestic
contentious administrative proceedings as well as the amounts granted internally in the proceedings
under administrative law for non-pecuniary damage, taking into consideration that the representatives
had indicated that, in general, the said compensation was adequate.
119
  Plan de Sánchez Massacre v. Guatemala, supra n. 114.
120
  D. Dobbs, The Law of Remedies, (2nd edn, Minnesota, 1993), 220.
121
  Young, James and Webster v. United Kingdom, supra n. 68. All three applicants had been dismissed
from their employment for failure to join a trade union. The Court found a violation of the right to
freedom of association (Art. 11) and awarded sums for past earnings with interest, pension rights, and
travel privileges, as well as moral damages. Young received £18,626; James, £46,215; and Webster,
£10,076. For their costs and expenses, the three received a total of £65,000 less thirty-five thousand
seven hundred and sixty-four French francs (35,764 FF).
122
 European Court of Human Rights, Pine Valley Developments et  al. v. Ireland (1993) Series
A No. 246–B.
123
  Ibid; European Court of Human Rights, E. v. Norway (1990) Series A No. 181A, para. 70.
124
  Allenet de Ribemont v. France, supra n. 69.
125
  Council of Europe, European Convention on the Compensation of Victims of Violent Crime
(23 Nov. 1983) ETS No. 116, 22 ILM 1021.
126
  See Nicholas Katsoris, ‘The European Convention on the Compensation of Victims of Violent
Crimes: A Decade of Frustration’ (1990/1991) 14 Fordham Int’l L.J. 186, 196. He states that pain and
suffering damages are also included, but no reference to them appears in the text.
 Compensation 331

11.3.1  Valuation
Economic theory offers guidance in quantifying damages for the reduction in a victim’s
ability to enjoy life, something that may be particularly important in torture and other
mistreatment cases that produce lasting mental and emotional consequences. Many
jurisdictions now recognize the lost enjoyment of life either as a separate element of
damages or as a component of pain and suffering. Several studies support this approach
to assessing damages, which values the positive, intangible aspects of living, the ‘hedonic’
value of life.127 Hedonic damages are based on the notion that it is possible to value the
joy of watching children grow, of sharing dinner with close friends, and other pleasures
that amount to more than the economic value of services.128 The Inter-American Court’s
recognition of injury to proyecto de vida supports this approach.
Various economic methods of valuing human life may be used to calculate dam-
ages for loss of life.129 One approach estimates the value of life per year, assuming that a
younger person will value his or her life more highly than an elderly person, because of
the longer life expectancy. An economist may take the annual value for each year of life
expectancy of the victim and arrive at a present estimate of the value of human life and/or
the loss of enjoyment of living, which may be adjusted for inflation and interest.130 The
economic model also may infer the value of life and freedom from serious injury from
the premiums that people charge to incur very small risks of death or serious injury.131
Studies have been done on workers in hazardous occupations, and on the prices that
consumers are willing to pay for safety devices.132 Economists compare wages and risks
in different jobs as well as consumer purchasing patterns for safety-related items estab-
lishing the premium or higher wages that workers demand for engaging in high-risk
occupations. The results in the USA yield a figure of $1.5 to $3 million for loss of life.133
Where a deceased leaves minor children, another kind of loss occurs and should not
be overlooked: the pecuniary value of parental nurture as an element of harm separate
from loss of parental love and affection.134 A child gains definite practical and financial
value from parental guidance that the court may estimate and award as damages when

127
  See e.g. Sherrod v. Berry, 629 F.Supp. 159, 162–3 (N.D. Ill. 1985), aff’d 827 F.2d 195 (7th Cir.
1987), rev’d on other grounds, 856 F.2d 802 (7th Cir. 1988) (en banc). In a civil rights action on behalf
of a deceased killed by a police officer, the trial court ruled that evidence on the ‘hedonic’ value of life
is admissible. The award included US$850,000 specifically for damages for the lost pleasure of living.
128
  Richard A. Palfin and Brent B. Danniger, Hedonic Damages: Proving Damages for Lost Enjoyment
of Living (Charlottesville, 1990).
129
  See D. Violette and L. Chestnut, Valuing Reductions in Risks: A Review of the Empirical Estimates
(Columbus, 1983); Valuing Risks: New Information on the Willingness to Pay for Changes in Fatal Risks
(Columbus, 1989).
130
  In the USA, values tend to average about US$120,000 per year. See I. Mathur, ‘Estimating Value
of Life per Life Year’ (1990) 3 J. Forensic Econ. 95. He estimates the average value per year at US$121,508.
131
  Ibid, 198–200.
132
  See W. Viscusi, Risk by Choice (Cambridge, 1983), 93–113. Studies suggest that a typical life is
worth one to three million dollars. See T.R. Miller, ‘Willingness to Pay Comes of Age: Will the System
Survive?’ (1989) 83 N.W. U. L.Rev. 876, 893.
133
  A 1983 study by the United States Environmental Protection Agency, updated in 1989, supra
n. 129, is based on economic studies of the value of human life.
134
  Wrongful death statutes in virtually every American jurisdiction provide that a child who sues
for the wrongful death of a parent can receive compensatory damages for loss of parental nurture. See
Stuart M. Speiser et al., Recovery for Wrongful Death and Injury (n.p. 1992), s. 3:48, at n. 14 (listing by
state major decisions allowing recovery for loss of parental nurture). See also T. Franklin, ‘Calculating
Damages for Loss of Parental Nurture Through Multiple Regression Analysis’ (1995) 52 Wash. & Lee
L. Rev. 271. The United States Federal Tort Claims Act also permits recovery for loss to a child of paren-
tal care, counsel, training and education. See Edwards v. United States, 552 F.Supp. 635, 640 (M.D.
Ala. 1982).
332 The Substance of Redress

the parent is lost through the wrongful conduct of another.135 The intellectual, moral,
and physical training provided to minor children by a parent may be calculated,136 based
on the underlying concept of compensating the child for lost opportunities in the future
due to the death of a parent.
‘Nurtural’ damages attempt to determine the economic losses to minor children that
will extend beyond the age of majority. Courts have constructed various quantitative
tests to determine the accuracy of an award for parental loss.137 Some take a fixed percent-
age of the deceased’s annual income multiplied by the remaining years of the children’s
minority.138 Others have attempted to establish ranges within which damages must fall
or constructed tests unrelated to actual loss.139 A recent test suggests that the value of the
loss of a parent can be measured through the reduction in future income the child will
suffer. This may be the standard best calculated to redress the pecuniary harm caused
by loss of parental nurture.140 A more restrictive measure that has the benefit of being
relatively easy to calculate is the cost of obtaining substitute services,141 including care,
counsel, training, and education that the child might reasonably have received from the
parent and which can be supplied by the compensated service of another. In general,
however, the market value of a replacement parent does not adequately measure the
value of parental nurture.142 Replacing services does not fully replace nurture. Courts
that award nurtural damages point to the bearing parental nurture has on a child’s even-
tual station in life. Demographic studies confirm this view.143 Lost future income, based
on statistical analysis, appears to most accurately measure the impact of the loss of paren-
tal nurture on a child.
Multiple regression analysis is a common method of determining lost or future earn-
ings as it determines the relationship between variables, for example, income and years
of education.144 It does not establish causality, but relationship, although causality is
often assumed because of a temporal order of the variables. Thus, if a relationship is
established, a researcher may estimate an individual’s income range by knowing the
number of years of education.145 Using such methodology, analysts have demonstrated
that a child’s future income can be based on the characteristics of the parents.146 The most

135
  Moore-McCormack Lines v. Richardson, 295 F.2d 583, 593 n. 9A (2d Cir. 191), cert. denied, 479
U.S. 989 and cert. denied, 70 U.S. 937 (192). See also Law v. Sea Drilling Corp., 510 F.2d 242, 250–1
(5th Cir. 1975) (noting distinction between loss of parental love and affection and loss of parental nur-
ture, training, and guidance); Briscoe v. United States, 65 F.2d 404, 406 (2d Cir. 1933) (parental nurture
has pecuniary value).
136
  First Nat’l Bank v. National Airlines, Inc., 171 F.Supp. 528, 537 (S.D.N.Y. 1958), aff’d 288 F.2d
261 (2d Cir.), cert. denied, 368 U.S. 859 (1961).
137
  Ibid, 275 et seq.
138
 See Hudgins v. Serrano, 453 A.2d 218 (N.J. Super. Ct.App.Div. 1982).
139
  See the cases cited in Franklin, supra n. 134, 278, nn. 36–9. 140
  Ibid 275 et seq.
141
 See Michigan Central Railroad v. Vreeland, 277 U.S. 59 (1913).
142
 Franklin, supra n. 134, nn. 43–9.
143
 See N. Astone and S. McLanahan, ‘Family Structure, Parental Practices and High School
Completion’ (1999) 56 Am. Soc. Rev. 309.
144
  Wayne Curtis, Statistical Concepts for Attorneys (Westport, 1983), 154.
145
 Franklin, supra n. 134, 298–305.
146
  See e.g. Peter Blau and Otis Dudley Duncan, The American Occupational Structure (New York,
1976); Christopher Jencks, Who Gets Ahead? (New York, 1978); W. Sewell and R. Hauser, Education,
Occupation and Earnings (New York, 1975); W. Sewell and V. Shah, ‘Social Class, Parental Encouragement,
and Educational Aspirations’ (1968) 73 Am. J. Soc. 559–72. Characteristics that are significant in proof of
loss of parental nurture are: (1) parental characteristics including occupation, age, training or education,
community or school affiliations, special skills or qualifications, religious affiliation; (2) family charac-
teristics such as contributions of parent to family, church attendance, participation, encouragement and
interest in school activities and problems; participation and encouragement in cultural, athletic and
recreational activities; imparting of special skills or training; concern with adolescent problems.
 Compensation 333

complete study that has been undertaken showed that a child’s future success was influ-
enced by the family’s average background characteristics during the time the child grew
up, accounting for nearly half the variance in occupational status and 15 to 35 per cent
of the variance of income.147 Such analysis should be part of any claim for loss of parental
nurture.148 There is no doubt some scientific uncertainty in the conclusions, but the
basic theory and approach provides a means to compensate for real losses that are often
overlooked or viewed as too speculative.
In sum, a lawyer seeking a damage award where physical or mental injury has occurred
due to a human rights violation should present to the court at least the following infor-
mation: the victim’s age, state of health, activities, interests, and responsibilities; medical
reports; occupation with pre-injury gross and net earnings; lost earnings; security of
employment; likely future earnings and earning capacity; cost of past and future medi-
cal treatment, nursing care and other assistance or special equipment made reasonably
necessary by the injury; benefits and other monies paid to the claimant by the state or by
others; likely effect of government taxes on income from a lump sum award; pain and
suffering.
Where the claim involves interference with or deprivation of property, there are three
direct methods of calculating the loss based on the fair market value of the property.
Actual sales of the property (for example, trees or livestock) allows reference to market
price, that is, the price at which the property is sold at an arm’s length transaction at the
time of valuation. Market price is actual sale, while market value is a hypothetical price
used in the absence of an actual sale. The second direct method uses comparable sales
where there is an active and free market for comparable assets. This method is usually
strictly applied and requires like assets, such as publicly traded shares of the same entity.
The third, work-back method takes the downstream sales price and deducts the costs
incurred in moving or transforming it from the point of valuation to the actual point
of sale.
Property is often unique, making it impossible to utilize direct methods of valuation,
so tribunals must have recourse to indirect methods. Here, also, different methods are
used. Indirect methods of valuation may or may not include lost profits. Accounting
methods utilize either (a) net book value, which is the value of assets at acquisition cost,
as contained in an enterprise’s book of accounts, less depreciation; or the value that is
derived by deducting the liabilities of the assets of a company in the amounts that these
items appear on the company’s books of account; or (b) replacement cost, which is the cost
of replacing physical assets at the time of valuation, less actual depreciation. The ‘going
concern’ method values a profit-generating business or property by measuring earning
power, taking into account the loss of future profits. Measurement may be done through
a discount cash flow or capitalization of income. Discount cash flow (DCF) assesses the
amount and timing of the revenue that is expected over the remaining life of the asset,
less the costs required to operate and maintain the asset. This is the ‘future net cash flow’
of the asset and it incorporates a rate at which the projected cash flow of the asset should
be discounted to produce the ‘net present value’ of the cash flow. The discount rate
must account for risk, inflation, and the real rate of interest. Any analysis must also take
into account the risk that profits will deviate from the amount projected. Capitalization
of income estimates future profits by projecting past earnings. Capitalization involves
multiplying the projected or average earnings for a single year by a capitalization rate

147
 Jencks, supra n. 146, 63, 81.      See Franklin, supra n. 134.
148
334 The Substance of Redress

corresponding to a price-earnings ratio on comparable investments. It is accurate only in

cases where earnings have been, and are expected to remain, stable over time.
In practice, litigation may centre on the choice of valuation methodology. Tribunals
tend to emphasize abstract legal concepts149 and equity considerations150 resulting in
standards of compensation that are economically invalid or unclear because the tribunal
provides no clear explanation of its methodology.151 Earlier arbitral and court awards
relied on the net valuation of a firm’s physical assets as the principal valuation criterion
but, since the 1970s, there has been an overall tendency to move towards using the
‘going concern’ approach, awarding lost profits calculated by the discount cash flow.
The cases generally approve of the discounted cash flow method and, importantly, erase
the distinction between lawful and unlawful actions for the award of lost profits,
although they are not completely consistent.

11.3.1.1╇Jurisprudence on loss of life

International jurisprudence on loss of life tends to limit recovery to provable economic
injury. The European Court of Human Rights has faced fewer allegations of wrongful
deprivation of life than have other tribunals. Between 1959 and the end of 2014, the
Court had found violations of Article 2 in 435 cases, the vast number of which were
in matters decided in the last decade (by the beginning of 2004, the Court had found
Article 2 violations in only thirty-nine cases). Notably, 365 of the right to life violations,
or close to 84 percent of the total, were cases against just two states: Russia (244) and
Turkey (121).
The European Court has made a clear distinction between substantive and procedural
violations of Article 2. Substantive violations are found when evidence clearly establishes
that the state deprived the deceased person of life. The allegations and findings include
demonstrations of the state’s responsibility in disappearances or killings, failure to control

149
╇See Aminoil: American Independent Oil Co. Arbitration (1982) 21 ILM 976, involving Kuwaiti
nationalization of a long-term oil concession in the 1970s. Kuwait argued for net book value. Aminoil
sought lost profits and looked at the period just before the submission of its memorial, adjusted by the
addition of appropriate interest, and at the future until the expiration of the contract, adjusted down
for a discount rate. Profits were projected in both cases based on the amount and volume of oil to be
produced, factoring in remaining crude oil reserves, facility capacity, volume of sales, prices at which the
sales would have been made, operating and capital expenditures incurred and taxes and other payments
to the government. Aminoil emphasized the high degree of certainty of the figures in the historical seg-
ment and argued that the projection forward by its method was more reliable than other methods. The
tribunal said it would apply ‘principles of international law’ that included assessing the replacement
value of the physical assets and a separate appraisal of ‘legitimate expectations’ plus interest. It accepted
in principle the discounted cash method of valuation and rejected net book value. It made an award
based on a ‘reasonable rate of return’ as stipulated in the contract. The tribunal also firmly chose replace-
ment costs, rather than net book value for physical assets.
150
╇See Liamco, Libyan American Oil Company (LIAMCO) v. Government of the Libyan Arab Republic
(1981) 62 ILR 140. Liamco was nationalized and the USA made a claim for lost profits in the sum of
US$186,270,000, calculated through the DCF for the life of the concession. Alternatively, an ‘unjust
enrichment’ figure of US$56,895,645 was proposed. Libya argued for book value only. The arbitrator
found that the award of lost profits in the case of a lawful nationalization was not an established principle
in international law. Relying on ‘equitable’ considerations, he awarded US$14 million for lost physical
assets and US$66 million as ‘equitable’ compensation without discussing how these figures were chosen.
Nonetheless, the decision indicated that more than book value is due even when the taking is lawful.
See Robert von Mehren and Nicholas Kourides, ‘International Arbitrations between States and Foreign
Private Parties: The Libyan Nationalization Cases’ (1981) 75 Am. J. Int’l L. 477.
151
╇ See D. Bowett, ‘State Contracts with Aliens’ (1988) 59 BYIL 49, 65 and Restatement of Foreign
Relations Law (Third), s. 712, reporter’s note 1.
 Compensation 335

and organize military operations, insufficient precaution to protect civilians during armed
clashes, and omission to protect the lives of those in danger. Procedural violations occur
after death from unknown sources, when the state fails to use due diligence in investigating
the death, or prosecuting and punishing those responsible. In approximately two-thirds
of the judgments on Article 2, the Court found a substantive violation of Article 2
as well as procedural violations. In one-third, only procedural violations were found, most
of those being cases from the United Kingdom.
Most of the cases involve claims for pecuniary and non-pecuniary damages. Where the
state is responsible for a death, the Court considers loss of past and future earnings, funeral
expenses and other costs connected with the death (for example, cost of travel to search for
missing relatives). In cases of procedural violations, only non-pecuniary damages have been
awarded to the relatives, to compensate for frustration, distress, anxiety and pain. The Court
also awards non-pecuniary damages on behalf of the victim, if it is shown that he or she suf-
fered torture or illegal detention prior to death or disappearance.
Some cases involving deprivation of life resulted in no award of compensation. The
Court judged that no compensation was due in McCann v. United Kingdom152 and Finucane
v. United Kingdom. In the latter case, the Court indicated that the applicants had already
received a significant sum, leaving McCann as the unique case where relatives received no
compensation for the breach of Article 2.153 At the opposite end of the spectrum, in one case
applicants received the entire amount sought. In Anguelova v. Bulgaria,154 the applicants
sought and were awarded €19,050 for the death of a 17-year-old boy in police custody. The
Court found both a substantive and procedural violation of Article 2.
In most cases, the applicants ask for extremely high awards, no doubt reflecting the
anguish felt at the death of a loved one. Governments often characterize the amounts
sought as ‘exorbitant’ or ‘grossly exaggerated’. The Court generally sets the amount
according to proof of pecuniary losses and ‘equity’ for non-pecuniary harm. In four
cases the Court awarded pecuniary damages in full.155 In all cases, the applicants submit-
ted detailed calculations with actuarial tables showing the victim’s age and monthly or
annual income, and life expectancy in the country. When granting the awards, the Court
mentioned the evidence as supporting the award, reinforcing the importance of a careful
preparation of claims. This importance is also reflected in the fact that only half of the
cases where applicants claimed damages for pecuniary losses resulted in an award. The
Court indicated that awards were denied because either the applicants did not claim to
be dependent on the victim, and so the losses were not actually incurred, or no details
or documentation were provided. In one case the Court presumed pecuniary losses,156
and, in another, awarded a lump sum for pecuniary and non-pecuniary damages where
evidence of income was lacking because the victim was unemployed at the time of his
death.157

152
  European Court of Human Rights, McCann and others v. United Kingdom (1995) (1995) 21
EHRR 97.
153
 Ibid, 264–5.
154
  European Court of Human Rights, Anguelova v. Bulgaria (2002) ECtHR Reports 2002-IV (judg-
ment of 13 June 2002).
155
  European Court of Human Rights, Cakici v. Turkey (2001) 31 EHRR 1032; Salman v. Turkey
(2002) 34 EHRR 17; Tanli v. Turkey, (2001) ECtHR Reports 2001-III 211 (judgment of 10 Apr.
2001), and Akkoc v. Turkey (2002) 34 EHRR 41 (in the last mentioned case, the Court deducted
amounts the applicant had already received).
156
  European Court of Human Rights, Oneryildiz v. Turkey [GC] (judgment of 30 Nov. 2004) avail-
able at http://www.echr.coe.int.
157
  European Court of Human Rights, Demiray v. Turkey (2000) ECtHR Reports 2000-XII 91,
(judgment of 21 Nov. 2000).
336 The Substance of Redress

The Court appears to have set a base line of £10,000 for non-pecuniary damage for
loss of life. It has referred to the ‘circumstances of the case’, ‘gravity of the violations’,
‘equitable considerations’ and/or ‘comparable cases’ as bases for setting the amount of
non-pecuniary damages. In one case, the applicant and her sister who had witnessed
an attack and killings received a higher sum (€16,000) than another surviving sibling
who had not witnessed the event but had suffered the loss of a brother and parents
(€13,000).158 Differences may also be based on the conduct of the applicant. In Kaya
and Gulec, both cases involving deaths in Turkey, the applicants sought £10,000 each in
non-pecuniary damages. Kaya received the full amount and Gulec one-half. The Court
noted, in the two cases, that Kaya was an innocent bystander, while Gulec was a par-
ticipant in a violent demonstration. The hint of ‘assumption of risk’ is clear. Where
there is evidence of mistreatment prior to death, the amounts of non-pecuniary damages
increase correspondingly.159
Finally, in 2004, the Court recognized discrimination with respect to a deprivation
of the right to life. In the case of Nachova and others v. Bulgaria,160 the applicants alleged
that their family members were shot by military police trying to arrest them and that
they were deprived of the right to life and also the right to a remedy under Article 13,
because they were Roma. The Court found that racism against the Roma was likely
involved in the case and linked Article 14 to Article 2 for the first time. The applicants
claimed 20,000 euros in non-pecuniary damage and 5,000 for pecuniary losses. The
Court awarded the first claims in full and the full 5,000 to one set of claimants, 2,000
to the other. The Court pointed to the age of the victims and how closely the applicants
were related to the victims as factors accounting for the difference in amounts. Judge
Bonello’s concurring opinion emphasized the importance of the finding on racist dis-
crimination on both the procedural and substantive aspects of Articles 2 and 14.
In the Inter-American system, the Court, in Aloeboetoe v. Suriname, mentioned the
value of services rendered by the deceased to the family in its discussion of compensation
to non-successors, but did not consider the pecuniary value of such, perhaps because it
considered it too subjective or difficult to calculate. Whatever the reason, the on-going
absence of awards for the value of personal services, plus the admittedly ‘extremely con-
servative’161 calculation of lost revenues, has led to substantially less being claimed and
awarded in material damages than was actually suffered, resulting in a consistent under-
valuing of life. Both the Inter-American Commission and the Court appear to equate
the pecuniary value of life with the earnings of an individual plus indirect damages
(daño emergente).162 This amount is then converted into US dollars at the free market
exchange rate, to avoid problems of inflation and devaluation of volatile currencies.

158
  European Court of Human Rights, Onen v. Turkey (judgment of 13 May 2002) available at http://
www.echr.coe.int.
159
 See Cakici v. Turkey, supra n. 155, 1032 (£25,000 for violations of Arts. 2, 3, and 5 as a result of
death of the applicant’s brother during illegal detention).
160
  European Court of Human Rights, Nachova and others v.  Bulgaria (2004) Application Nos.
43577/98, 43579/98 (judgment of 26 Feb. 2004).
161
  The Commission and the lawyers for the victims underestimated the actual damages, choosing
to base their calculations on ‘extremely conservative assumptions’ about the inflation rate in Suriname.
They noted that the actual state of the economy would ‘indicate much higher figures’ and ‘substantially
higher’ damages; Commission Brief, p. 9. This approach could be the result of concern for the economic
situation in Suriname or the fact that the Saramaca are a largely non-cash society, or it could have been
a strategic decision connected with the range of innovative claims made in the case.
162
  The judgment is dated 10 September 1993. The massacre took place on 31 December 1987. June
1993 was selected because in that month a free exchange market was established in Suriname. This made
it possible to avoid the distortions produced by a system of fixed rates of exchange in a highly inflation-
ary economy.
 Compensation 337

In computing loss based on a ‘prudent estimate of the possible income of the victim’,
the Court has stated that it does not use ‘rigid criteria’,163 an approach that empha-
sizes the Court’s discretion. It can be helpful when the victims lack normal evidence of
income, such as tax records or receipts. In some cases the Court has calculated damages
utilizing the minimum wage in the state at the time of death.164 The parties have the bur-
den of producing reliable evidence on the minimum wage if evidence of actual earnings
cannot be obtained.165 Expert testimony presented by the parties can be, and has been,
used to establish proof of lost earnings or life expectancy. The Court may also appoint its
own actuaries or other experts.166
Neira Alegria v. Peru167 concerned the disappearance, during or after suppression of a
riot by the military, of two men detained at a Peruvian correctional facility and accused
of terrorism. The Court unanimously found Peru responsible for violations of numerous
rights. The government argued that had the individuals lived it was probable that they
would have been sentenced to years of imprisonment for terrorism and would not have
been able to work. The Court rejected the government’s argument because the victims
were not convicted and sentenced, and therefore ‘the general legal principle of the right
to be presumed innocent must apply’. The Court ‘for reasons of equity and in view of
the actual economic and social situation of Latin America’, fixed the amount at US$125
a month. In setting the lost wages above the minimum wage level, the Court avoided
placing a high burden of proof on the applicants that would have the effect of denying
a remedy. The Court calculated lost earnings based on life span and monthly salary, dis-
counted to present value. The Court estimated personal expenses at one-quarter of the
income, as it has consistently done.

11.3.1.2╇ Property
The European Court of Human Rights has developed methods of calculation primarily
in cases concerning interference with property rights, where compensation is generally
based on the market value of the property, i.e. the price that could have been realized
in a sale as of the date of the wrong.168 If there is no available market, the Court may
resort to the most comparable market. Some cases allow subsequent increases in value
to be taken into account where there has been conversion of goods commonly dealt
with on exchanges. In rare cases where there is no market value because the property

163
╇ Velásquez-Rodríguez Case (Reparations), supra n. 99, paras. 26–38.
164
╇ Inter-American Court of Human Rights, El Amparo (Reparations) (1996) Series C No. 28, para.
28; Neira Alegria Case, infra n. 167 at para. 49.
165
╇ Neira Alegria Case, infra n. 167 at para. 50.
166
╇ In both the Aloeboetoe and El Amparo Cases, the court employed experts and made use of its own
staff in gathering evidence: El Amparo Case, supra n.164, para. 34; Aloeboetoe v. Suriname (1993) Series
C No. 15, para. 87.
167
╇ Inter-American Court of Human Rights, Neira Alegria et al. Case (Reparations) (1998) Series C
No. 29.
168
╇ This approach seems contrary to the Chorzow Factory rule requiring full reparations in expropria-
tion cases—odd given that Chorzow Factory, supra n. 100, itself was an expropriation case. However, the
Convention’s reference to ‘just’ or ‘adequate’ compensation for expropriation may permit compensa-
tion below full market value if valid competing considerations demand it: European Court of Human
Rights, Papachelas v. Greece (1999) App. No. 31423/96, 1999-II, paras. 44, 48; Scordino v. Italy (merits
and just satisfaction) [GC], App. No. 36813/97, para. 257 (judgment of 29 Mar. 2006). In other tri-
bunals, the requirement of full reparations remains applicable. See, e.g., ADC Affiliate Ltd v. Hungary,
ICSID (W. Bank) Case No. ARB/03/16, paras. 497–500 (judgment of 2 Oct. 2006); European Court
of Human Rights, Papamichalopoulos v. Greece, App. No. 14556/89, Series A No. 330-B, para. 36
(1995); Restatement (Third) of the Foreign Relations Law of the United States § 712 (1990).
338 The Substance of Redress

is not saleable or market value would clearly be inadequate compensation, value to the
owner may be substituted. Rental value is appropriate for temporary loss while the cost
of restoration may be appropriate for damage to property that does not involve full loss.
The Court has held that the payment of compensation is a necessary condition for
the lawful taking of property for anyone within the jurisdiction of a contracting state.169
The Court has made it clear in recent cases that it adheres to the approach of other inter-
national tribunals in distinguishing between a taking that is unlawful per se and one
that is lawful but defective because fair compensation has not been paid.170 In the case
of an unlawful taking, the appropriate remedy is restitution of the property or payment
of its full market value.171 Where the taking is lawful and not arbitrary the Court does
not require restitution, but instead requires the payment of appropriate compensation
in an amount ‘reasonably related to’ the value of the property as adjusted by equitable
considerations.172
In Sporrong and Lonnroth v. Sweden,173 the European Court first considered how it
should approach the issue of material damage in a case where the right to property was
infringed because of long-term prohibitions on construction. The applicants proposed
an economic analysis and deterrent principle for assessing their claim:
[T]‌he applicants wish to point out the risk of a gradual deterioration of the legal rights of the indi-
vidual if the balance of interest is not effectively restored. In these cases this can only be done by
awarding the individual such compensation that the responsible authorities are obliged to weigh
the costs inflicted upon the individual on the one hand against the public benefit which it is trying
to achieve on the other.174
To the applicants it seemed clear that reparation should take the form of restitutio in
integrum, but since it was impossible, a pecuniary assessment of the loss became neces-
sary, including past development losses. A lifting of restrictions on property develop-
ment could not be considered an adequate remedy because of the economic losses that
occurred during the years when use was restricted. The applicants maintained that they
should have been entitled either to make use of their properties in a normal fashion
within a reasonable time or have been given the option of selling them at a normal
price, as if the restrictions had not been in place. They noted that the economy was
much better at the time the restrictions were in place than at the time of the litiga-
tion. Sporrong claimed damages of SEK13,284,540 (US$1,621,846) and Lonnroth
SEK10,912,303 (US$1,332,231). The Court agreed that compensation was necessary
for the taking. However, although there was no objection from the government to the
amounts claimed, the Court awarded only SEK1 million (US$122,085), without dis-
cussing its basis for assessing the damages.
In the King of Greece case, the Court emphasized that the rule requiring compensa-
tion reasonably related to the value of the property taken ‘is not without exceptions’.175

169
  European Court of Human Rights, James v. United Kingdom (1986) Series A No. 98.
170
  European Court of Human Rights, Former King of Greece and others v. Greece (2001) 33 EHRR
516 (judgment of 23 Nov. 2000), citing International Finance Corporation v. Iran, Interlocutory Award
of 14 July 1987, Iran–U.S. Claims Tribunal Reports 1987-II, para. 192 and Case Concerning the Factory
at Chorzów [1928] PCIJ Rep. Series A No. 17, 47.
171
  European Court of Human Rights, Papamichalopoulos and others v. Greece (Article 50), Series
A No. 330B, paras. 36, 39.
172
  Ibid, paras. 78–9.
173
  European Court of Human Rights, Sporrong and Lonnroth v. Sweden (1982) Series A No. 52.
174
  European Court of Human Rights, Sporrong and Lonnroth v. Sweden (1980–1) Series B No.
46, 215.
175
  King of Greece, supra n. 170, para. 78.
 Compensation 339

The applicants had sought an award of over 260,000,000 euros for property expropri-
ated by the government. The Court awarded 24,000,000 euros, or less than ten percent
of the amount requested. The Court accepted the government’s contention that the
taking was linked to completing the ‘fundamental changes of [the] country’s consti-
tutional system . . . from monarchy to republic’ and also considered how the properties
were acquired, plus past tax benefits the royal family had received. It also appears that the
Court took into account the government’s allegations of the role played by the King at
the time of the coup d’etat in 1967. The Court reiterated that the ‘circumstances of the
case’ required the objective values of the properties to be adjusted downwards.
The Court has held that the Convention does not guarantee a right to ‘full’ compen-
sation because legitimate objectives of public interest, such as those pursued in measures
of economic reform or measures designed to achieve greater social justice, could call
for less than reimbursement of the full market value. In James v. United Kingdom,176
the Court accepted the Commission’s proposed standard of compensation for a taking,
agreeing it should be the payment of an amount ‘reasonably related’ to the value of the
property. Where a state has chosen a method of compensation, the Court has said that its
power of review is limited to ascertaining whether the choice of compensation terms falls
outside the state’s wide margin of appreciation. In some cases, the Court has explicitly
denied the applicability of the international standard of ‘prompt, adequate and effective
compensation’ for expropriated property, deciding that it traditionally applied only to
the taking of property of non-nationals. ‘As such, these principles did not relate to the
treatment accorded by States to their own nationals’.177
The Court has suggested that it has difficulty assessing property damage due to the
nature of real estate and the complexity of the calculations made by experts acting for
the applicants and the governments. ‘They arise above all from the virtual impossibility
of quantifying, even approximately, the loss of opportunities’.178 ‘Hypothetical rede-
velopment’, suggested by the applicants in one case, was called an ‘extreme or outside’
hypothesis not supported by the facts. Another method, ‘actual use’, proposed by the
government was found equally unacceptable, being called ‘inflexible and incomplete’179
because it disregarded depreciation in value of the properties and the possibilities for
improvement had the wrongful measures not existed. While the Court rejected both the
methods proposed, it decided it did not have to establish another because the circum-
stances of the case allowed it to make an overall assessment of the factors which it found
to be relevant.
In most cases, the Court does not employ experts to assess property values. In
Hentrich v. France,180 the applicant complained of the seizure of land and initially claimed
FF800,000 pecuniary loss on property valued at FF1 million. The government objected
that the amount was speculative. The Court suggested that restitution of the land would
be the best remedy—without making an order to that effect—and that, failing restitu-
tion, the calculation of pecuniary damage must be based on the current market value of
the land. In the deferred proceeding on just compensation, Hentrich revised her esti-
mated loss to FF2,875,550. The Court did not employ experts to value the land, but ‘on
an equitable basis’ awarded the FF800,000 she originally claimed as a loss.
Difficult issues of valuation arose in Papamichalopoulos and others v. Greece.181 Land
near Marathon, Greece, belonging to private individuals had been occupied in 1967

176
  James v. United Kingdom, supra n. 169. 177
  Ibid, para. 60.
178
  European Court of Human Rights, Sporrong and Lonnroth (Art. 50) (1984) 7 EHRR 256, para. 27.
179
  Ibid, para. 30. 180
  Hentrich v. France, supra n. 66.
181
  Papamichalopoulos and others v. Greece, supra n. 171.
340 The Substance of Redress

during the military dictatorship by the Navy Fund in breach of the right to property
guaranteed by Article 1 of Protocol I to the Convention. The military used the land to
build a coastal vacation resort for military officers. The Court unanimously found that
the occupation of the land constituted a de facto expropriation because the fourteen
applicants were unable to use their property, sell it, bequeath it, or mortgage it. In the
absence of restitution, which the government seemed unwilling to do, the land thus had
to be valued as of 1967 and 1994, the date of the proceeding.
At the initiative of the Court, the government and the applicants agreed that experts
would value the disputed land, but the expert report was delayed because the Greek
Minister of Defence refused permission for them to enter the officers’ holiday village.
The experts stated they thought the reasons for their exclusion ‘have to do with the end
of the naval officers’ summer holidays’. Probably because of the delay, the Court imposed
the costs of the experts’ opinion on the Greek government.
The report first valued the land in 1964, at which time it was partly undeveloped
and partly consisted of farms and fallow fields. By 1994 the land and surrounding
woods were fully developed with buildings erected and trees and shrubs planted. The
physical characteristics and situation of the land and the beauty of the region were
found to make it an ideal spot for building a hotel complex. According to the report,
‘it was one of the few quiet, unspoilt regions of Attica and was exceptionally valuable
in commercial terms because of the current shortage of comparable areas of land’.
This was decisive in the valuation. The experts looked at tax records, information
supplied by the government and the applicants, and data from the real estate market.
They took into account fluctuations in the rate of inflation. According to the experts,
the total value of the land had jumped from 29,800,000 drachmas (US$101,288)
in 1967 to 5,151,000,000 (US$17,507,903) in 1994. To that had to be added the
value of the buildings the government constructed: another 1,713,490,000 drachmas
(US$5,824,037).
Using the report, the applicants and the government agreed on the need for com-
pensation, but supplied vastly different valuation figures for the disputed property. The
applicants submitted a 1994 valuation of 14,455,740,000 drachmas (US$49,134,089),
stressing the natural beauty and geographic situation of the region. They also claimed
ownership of the buildings, based on Greek law, and loss of use of their properties for
twenty-seven years. For the latter they used a figure of 6 per cent on the current value.
Pleading in the alternative they asked either for the land back plus the figure for the loss
of use, or for payment of the value of the land and buildings and compensation for the
loss of use, for a total of 42,849,811,000 drachmas (US$145,643,630). The government
claimed that the land was worth only 520,000 drachmas in 1967 and 312,000,000 in
1994. It also asserted that the buildings which it constructed were worth 82,900,000
(US$281,772) originally and worth 1,525,500,000 (US$5,185,072) in 1994. In argu-
ing for a lower value, the government emphasized the steep, rocky and marshy nature of
the terrain and the lack of economic activities in the region.
Recalling that the judgment on the merits referred to the actions of the government
as ‘de facto expropriation’ by unlawfully dispossessing the owners of their rights for
more than twenty-seven years, the Court held that the unlawfulness of the dispossession
‘inevitably affects the criteria to be used for determining the reparation owed by the
respondent State, since the pecuniary consequences of a lawful expropriation cannot
be assimilated to those of an unlawful dispossession’. In contrast to earlier decisions
rejecting reference to international legal precedents, the Court found that ‘international
case-law, of courts or arbitration tribunals, affords the court a precious source of inspira-
tion; although that case-law concerns more particularly the expropriation of industrial
 Compensation 341

and commercial undertakings, the principles identified in that field are valid for situa-
tions such as the one in the instant case’.182
The Court held that it should not limit the award to the value of the properties at the
date on which the Greek Navy took them, but should consider the developments made
on the property. Return of the land would be the preferred remedy, together with the
buildings, in that it ‘would fully compensate [the applicants] for the consequences of the
alleged loss of enjoyment’. If the respondent state did not make restitution within six
months, the Court ordered payment of the current value of the land, and the apprecia-
tion brought about by the construction of the buildings. The Court adopted the find-
ings in the expert report and set the value of compensation at 4,200,000,000 drachmas
(US$14,275,518) for the land and 1,351,000,000 (US$4,591,958) for the buildings,
plus interest at 6 per cent from the end of the six months until the payment was made.
The Court did not speculate about the possible use of the land had the original own-
ers held on to it. They might have retained it for agricultural purposes or sold it to private
developers. This is in issue. The improvements made were transferred back with the land
to the benefit of the original owners, without an obligation on their part to reimburse
the government for the improving expenditures.183
The Court also faced difficult issues of property valuation in the case of Selçuk and
Akser v. Turkey,184 where it found that house burnings violated both Article 3 and Article 8.
The petitioners claimed pecuniary damages for the loss of their houses, cultivated land,
household property, livestock and one applicant’s mill, as well as the cost of alterna-
tive accommodation. The government said the amounts awarded should be limited to
take into account economic conditions in Turkey, where the minimum monthly wage
was said to be FF700 (US$116) and the net maximum senior judge’s wage FF7,250
(US$1204). The Court noted the absence of evidence and decided that the amounts to
be awarded must, of necessity, be speculative and based on principles of equity. The first
applicant received £17,760.32 (US$28,737) and the second £22,408.48 (US$36,258).
In the similar case of Mentes and others v. Turkey, the government made a proposal for
valuation and the Court accepted the suggested methodology. The applicants’ claim
for pecuniary damages was based on ‘the costs of reconstructing their family life in the
environment which had been destroyed’ but was unsupported because they applicants
asserted they could not obtain records. The Court based its award on the average rate per
square metre proposed by the government and fifty per cent of the surface area claimed
by the applicants.185 The Court also made an award for personal property ‘in the light of
equitable considerations and the level of comparable awards’ made in similar cases.186 In

182
  Ibid, para. 36.
183
  The case might have been different had the property been transferred to an innocent purchaser
for value. Although one who wrongfully takes property usually cannot pass good title, a good faith pur-
chaser may be reimbursed the cost of conserving or improving the property of the true owner. This may
become an important issue in restitution of expropriated property in central and Eastern Europe. For
cases involving personal property, see, e.g. Autocephalous Greek Orthodox Church of Cyprus v. Goldberg
& Feldman Fine Arts, Inc., 717 F.Supp. 1373 (S.D. Ind. 1989), aff’d 917 F.2d 270 (7th Cir. 1990). See
also Robert M. Collin, ‘The Law and Stolen Art, Artifacts, and Antiquities’ (1993) 36 Howard L.J. 17;
H. Kennon, ‘Take a Picture, It may Last Longer if Guggenheim becomes the Law of the Land: The
Repatriation of Fine Art’ (1996) 8 St. Thomas L.Rev. 373; Karen Burke, ‘International Transfer of Stolen
Cultural Property:  Should Thieves Continue to Benefit from Domestic Laws Favoring Bona Fide
Purchasers?’ (1990) 13 Loy.L.A. Int’l & Comp. L.J. 427.
184
  Selçuk and Asker v. Turkey (1998) 71 Reports 1998-II 891 (judgment of 24 Apr. 1998), para. 106.
185
  European Court of Human Rights, Mentes and others v. Turkey (1997) Application No. 23186/94.
The Court stated that the methodology was based on Akdivar and others v. Turkey (Art. 50) (1998) 69
Reports 1998-II 711 (judgment of 1 Apr. 1998), para. 19.
186
  Ibid, para. 14.
342 The Substance of Redress

all the Turkish cases, the Court has been less exacting in requiring proof of loss, accepting
that the destruction of records and the security situation in the area created particular
difficulties in adducing evidence.
Different questions of valuation arise when the property has not been expropriated or
destroyed, but only subject to interference. The case of Loizidou v. Turkey,187 referred to
the Court by Cyprus, concerned deprivation of access to and use of property since 1974.
The Court found a violation of Article 1 of Protocol 1. The individual applicant did not
ask for the property to be valued as if expropriated, but for the loss of use of the land and
lost opportunity to develop or lease it based on a Valuation Report that estimated the
loss at CYP621,900 (US$1,171,473) from 1990 (the date Turkey accepted the compul-
sory jurisdiction of the Court). The method used in the Report involved calculating the
market price and increasing it by twelve per cent a year, then calculating a return of six
per cent for each of the years in question. The total was said to represent the aggregate of
rents that could have been collected during the period. Cyprus supported the applicant’s
claim, while Turkey maintained that no damages could be awarded without discussing
the amount claimed. The Commission contended that the report was unrealistic and
did not take into account the general political situation on the island that might have
affected development; it proposed that the Court award CYP100,000 (US$188,370).
The Court held that the applicant was entitled to compensation in respect of losses
directly related to the violation of her rights and considered as reasonable the general
approach of the Report in assessing the losses with reference to the annual ground rent
calculated as a percentage of the market value of the property that could have been earned
on the properties during the relevant period. The Court nonetheless found that the
method still involved a ‘significant’ degree of speculation given a volatile property mar-
ket. Given the uncertainties, the Court determined that CYP300,000 (US$565,110)
was an equitable amount.
In the case of Stran Greek Refineries and Stratis Andreadis v. Greece,188 brought by
the Stran company and its sole shareholder, the applicants had signed a contract with
the Greek military government in 1972 to build a crude oil refinery at an estimated
cost of US$76,000,000. In late November 1973, the government decided to return the
expropriated land to its previous owner and ordered work on the project to cease. After
the restoration of democracy, the government announced that the contract and decree
were prejudicial to the national economy and invited the applicants to renegotiate or
terminate the contract. When the applicants failed to respond, a ministerial committee
on the economy terminated the contract. Prior to termination of the contract, Stran had
filed a court action seeking reimbursement for expenditures it had made in connection
with the contract. The state filed a competing arbitration petition and sought to have
the arbitration court declare that the civil court claims were unfounded. The arbitration
proceeding concluded that the state was 70 per cent responsible for the losses suffered
by the company. It awarded 116,273,442 drachmas (US$395,206), US$16,054,165,
and FF614,627 (US$102,142), plus interest at six per cent from November 1978. It
also declared that the state was unlawfully retaining a 240 million drachma cheque
(US$815,744) which had been given by the company as security. The state challenged
the arbitration award in court but lost at both the first instance and on appeal. While a
final appeal to the Court of Cassation was pending, the Greek Parliament passed a law

187
  European Court of Human Rights, Loizidou v. Turkey (Art. 50) (1998) Reports 1998-VI, 1907
(1998) 26 EHRR CD5.
188
  European Court of Human Rights, Stran Greek Refineries and Stratis Andreadis v. Greece (1994)
Series A No. 301B.
 Compensation 343

that attempted to change the result in the case, declaring that arbitration awards con-
cerning contracts concluded during the military regime were invalid and unenforceable.
The court upheld the law and on remand to the court of first instance, the arbitration
award was declared void.
The European Court declared Article 6(1) of the Convention applicable189 determin-
ing that: ‘The principle of the rule of law and the notion of fair trial enshrined in Article 6
preclude any interference by the legislature with the administration of justice designed
to influence the judicial determination of the dispute’.190 It unanimously found a viola-
tion of Article 6. It also held that the government interfered with the applicants’ property
interests in violation of Article 1, Protocol 1. The applicants sought the full amount
awarded by the arbitration decision, plus interest of 6 per cent from 10 November 1978
to the date of the violation as just satisfaction. In the alternative, they asked for interest
until the date of the Court’s judgment. The Court referred to the operative part of the
arbitration award and held that the applicants were entitled to the entire amount. It
made no mention of the cheque for security or of moral damages. While it found that
the arbitral tribunal had not determined that an award of interest was necessary, it should
be given in part because ‘the adequacy of the compensation would be diminished if it
were to be paid without reference to various circumstances liable to reduce its value, such
as the fact that ten years have elapsed since the arbitration decision was rendered’.191 It
therefore awarded interest from 27 February 1984 to the date of judgment.192
The government delayed payment of the award and the Committee of Ministers ulti-
mately took unprecedented action in the case. In 1996, it stated that the mode of pay-
ment proposed by the Greek government failed to conform to the obligations imposed
by the Court’s judgment. It invited the government immediately to pay the damages
owed.193 In May 1996, the Committee noted that the government still had not paid
the award and insisted on its obligation to do so and to maintain the value of the award.
Finally in September 1996, the President of the Committee of Ministers addressed a
letter to the Foreign Minister of Greece insisting on the fact that the credibility and
effectiveness of the Convention system rests on respect for the obligations freely under-
taken by contracting parties, notably respect for the decisions of the supervisory organs.
Subsequently, the government informed the Committee that it had transferred to the
applicants, on 17 January 1997, US$30,863,828.50 in satisfaction of the judgment and
that the applicants could freely enjoy the funds without interference. The Committee
found that this amount corresponded to the amount of the judgment augmented to
compensate for the loss of value caused by the delay of payment. It then declared the
case closed.194
In OAO Neftyanaya Kompaniya Yukos v. Russia195 (Just Satisfaction), 31 July 2014,
the European Court made its largest ever award of compensation for pecuniary loss,
ordering Russia to pay approximately €1.9 billion to the former shareholders of Yukos.
The Court made the awards based on its 2012 judgment196 finding violations in respect

189
  Art. 6(1) entitles each person to a fair and public hearing within a reasonable time ‘in the deter-
mination of his civil rights and obligations or of any criminal charge against him’. The remainder of the
Article establishes the minimum conditions for a fair hearing.
190
  Stran Greek Refineries, supra n. 188, para. 49. 191
  Ibid, para. 82.
192
  The Court also awarded costs and attorneys’ fees of £125,000 on a claim of £171,041. An addi-
tional claim was denied as untimely.
193
  Committee of Ministers, Interim Resolution DH (96) 251 of 15 May 1996.
194
  Committee of Ministers, Final Resolution DH (97) 194.
195
  European Court of Human Rights, OAO Neftyanaya Kompaniya Yukos v. Russia (Just Satisfaction)
(2014) Application No. 14902/04 (judgment of 31 July 2014).
196
  (2012) 54 EHRR 19.
344 The Substance of Redress

of the retroactive imposition of penalties on the company and unlawful interference

with its rights under Article 1, Protocol 1 ECHR, stemming from the enforcement
proceedings taken against it. The Court had also determined on the merits that Russia’s
domestic courts violated Yukos’s right to a fair hearing under Article 6, ECHR, but the
court declined to make an award for this violation, due to lack of evidence on a causal
link between the violation and pecuniary harm to Yukos.
Before the Court, Yukos contended that the lack of time given for it to prepare for
domestic tax proceedings and procedural irregularities constituted a breach of Article 6
of the Convention. Furthermore, the manner of enforcement of tax assessments and the
forced sale of its subsidiary had been unlawful, arbitrary, and disproportionate under
Article 1, Protocol 1 of the Convention. The Court agreed and found that the enforce-
ment procedure ‘because of its rigid application, instead of inciting voluntary compli-
ance, contributed very seriously to the applicant company’s demise’.
The Court expressly applied restitutio in integrum in respect of the unlawful retroac-
tive penalties. Less clear was how to measure damages in relation to the disproportion-
ate interference with rights under Article 1, Protocol 1. The taxes and charges were not
themselves found to be unlawful. As regards the enforcement fees levied against Yukos,
the Court found that the seven per cent penalty was ‘completely out of proportion to
the enforcement expenses’ associated with the tax proceedings. The Court found that
‘in order to satisfy the requirements of proportionality the enforcement fee should have
been reduced to 4%’. The approach to assessment of quantum the court appears to envis-
age in such circumstances, (without having said so specifically) is to assess hypothetically
the level at which a penalty would have been proportionate and award compensation in
respect of the outstanding ‘disproportionate’ element of the penalty or fee. It remains
unclear why the Court felt that four per cent would have been proportionate, given that
the four per cent figure was itself colossal and almost certainly not remotely reflective of
the costs of enforcement proceedings. The Court also failed to examine the question of
whether alternative (proportionate) means of enforcement would have allowed the com-
pany to continue in existence, to make profits or reduce losses. Surprisingly, the Court
did not address the decision by the Russian authorities to auction Yuganskneftegaz, one
of Yukos’s most profitable assets (a decision which the Court found extinguished the
company’s ‘only hope of survival’). During the merits phase of proceedings, the Court
found that the timing of Russia’s decision to auction YNG, together with its failure to
afford serious consideration to alternative means by which Yukos’s liabilities could be
met, contributed to a violation of Article 1, Protocol 1. Nonetheless, no mention was
made of the auction or the consequences which flowed from it (and their implications
for quantum, if any) in the just satisfaction decision. As the Court itself implicitly rec-
ognized, YNG offered Yukos some prospect of survival and it potentially offered the
prospect of considerable additional profit. Furthermore, there was evidence before the
Court that YNG had been sold at a substantial undervalue. Ordinarily, loss of opportu-
nity and/or lost profit may properly be the subject of a separate award. It may be that the
Court felt that Yukos’s liabilities were such that a further award in respect of pecuniary
loss caused by the auction and the fire sale of YGN at less than market value would have
been speculative. Whatever the reasons may be, it is unfortunate that these issues were
not directly addressed, especially given the scale of the sums involved.
Finally, in the case of Vistins and Perepjolkins v. Latvia,197 a Grand Chamber of the
Court considered the issue of just satisfaction for property lawfully expropriated, but

197
  European Court of Human Rights, Vistins and Perepjolkins v. Latvia [GC] (2014) Application
No. 71243/01.
 Compensation 345

where the applicants claimed that the compensation given them had been disproportion-
ally low, striking an unfair balance between the protection of property and the demands
of the general interest. The violation being in the amount of compensation, the Court
held that for expropriations not intrinsically unlawful, the amount to be awarded does
not have to reflect the idea of a total elimination of the consequences of the interference,
or the full value of the property (restitution). The Court said it is appropriate to fix sums
that are ‘reasonably related’ to the market value of the land at the time the applicants lose
their property. Considering the specific circumstances of the case, the Court decided to
have recourse to equitable considerations in calculating the relevant sums. Based on the
merits determination that the Latvian authorities were justified in not compensating for
the full market value of the expropriated property, the Court considered it equitable to
reduce by seventy-five per cent the value per square metre of land. From this amount,
the Court deducted amounts already paid at the domestic level and adjusted the sums to
offset the effects of inflation, and added statutory interest.198
The Inter-American Court has accepted that just compensation for property takings
must be ‘prompt, adequate and effective’,199 but not necessarily the market value of what
was lost. In Salvador-Chiriboga v. Ecuador, the Court defined ‘adequate’ compensation
in expropriation matters as a ‘fair balance between the general interest and the [owner’s]
interest’200 rather than adopting a rigid rule of market value. Ms Salvador-Chiriboga
received $18.7 million for her land, plus interest from the date that she lost the right
to her property.201 Particular difficulties arise in setting compensation in cases where
indigenous land and resource rights are at issue, due to the deeply held non-commercial
attachment to these assets.202 The Court has focused on procedural rights of informa-
tion, participation and redress, but has also held that state-authorized commercial pro-
jects must share a ‘reasonable benefit’ with the affected indigenous community.203

11.3.1.3╇Valuing liberty
In the 1999 judgment of the Inter-American Court in Suárez Rosero v. Ecuador, the
applicant sought damages for unlawful detention. The applicant’s wife suffered from
cancer, due to which a leg had been amputated, and she was dependent upon her hus-
band for personal services in the home. In addition, both husband and wife suffered
medical and psychological harm as a result of the detention. The applicant asked for
lost wages and moral harm, as well as the cost of a housekeeper for the period of incar-
ceration, the costs and fees of the attorneys, rehabilitation, medical and psychological
treatment. The government did not contest most of the evidence on damages. The Court
agreed that the applicant was entitled to indemnification for the lost wages, plus the cost
of the domestic help, and expenses for past and future medical treatment.

198
╇ Compare European Court of Human Rights, Guiso-Gallisay v.  Italy (just satisfaction) [GC]
(2009) Application No. 58858/00 on required compensation for intrinsically unlawful expropriations.
199
╇ Inter-American Court of Human Rights, Salvador-Chiriboga v. Ecuador (2008) Series C No. 179,
para. 96.
200
╇ Ibid, paras. 98, 100.
201
╇Ibid, para. 84. Judge García-Ramírez remarked that ‘never before’ had a Court reparations
order been in such a high amount. Partially Dissenting Opinion of Judge García-Ramírez, para. 19,
Salvador-Chiriboga v. Ecuador (2011) Series C No. 222.
202
╇Günther Handl, ‘Indigenous Peoples’ Subsistence Lifestyle as an Environmental Valuation
Problem’ in Environmental Damage in International and Comparative Law: Problems of Definition and
Valuation (Oxford, 2002), 105.
203
╇ Saramaka People v. Suriname, supra n. 106, para. 129.
346 The Substance of Redress

The European Court considers liberty a fundamental value and deprivation of liberty
as a particularly serious violation.204 In such cases the Court may award a lump sum
for pecuniary and non-pecuniary damages,205 but if the applicant’s allegations concern
only the length of detention and not its inherent unlawfulness, the Court will usually
find the claim speculative and refuse the award. In addition, the Court normally denies
non-pecuniary awards, finding that the judgment itself is just satisfaction. Thus, the
applicant must show that the deprivation of liberty would not have occurred but for the
violation.206

11.4  Non-Pecuniary Damages

‘Human dignity is one of the most fundamental concepts of international human rights
law, appearing in nearly all human rights instruments and applied by human rights bod-
ies regularly’.207 Human dignity is understood, first, as an affirmation that every human
being has an equal and inherent moral value or status. Interrelated with this status claim
is the idea of human dignity as a normative principle affirming that all human beings are
entitled to have other persons and institutions respect this status. The European Court
has declared that ‘the very essence of the Convention is respect for human dignity’.208
Beyond having a foundational role underpinning human rights, dignity has been used
as a principle in respect to specific rights, in particular the right to physical and personal
integrity. The Inter-American Court has expanded the scope of the right to life to include
the right to live a ‘vida digna’, meaning a ‘dignified life’ or a ‘dignified existence’.209 The
Court’s concept of the right to a certain quality of life obligates the state to generate at least
‘minimum living conditions that are compatible with the dignity of the human person’.210
Moral damages serve to measure dignitary losses or breach of a dignitary interest. Yet,
as other commentators have noted, ‘[i]‌n all national courts and international tribunals,
the most striking feature of awards for non-pecuniary loss is the absence of developed
principles for injury to dignitary interests’.211 All the intangibles are particularly personal

204
 See Fox, Campbell and Hartley, supra n. 56.
205
  See European Court of Human Rights, Tsirlis and Kouloumpas v. Greece (1998) 25 EHRR 198
(judgment of 29 May 1997).
206
  Nikolova v.  Bulgaria, supra n.  59, 3 (no causal link for pecuniary damages); Hood v.  United
Kingdom (2000) 29 EHRR 365 (judgment of 18 Feb. 1999) (no award in respect of deprivation of
liberty that the applicant would have suffered anyway if Convention guarantees had been followed).
207
  Paolo Carozza, ‘Human Dignity’ in Dinah Shelton (ed.) Oxford Handbook of Human Rights Law
(Oxford, 2013).
208
  European Court of Human Rights, Goodwin v. United Kingdom [GC] (2002) 35 EHRR 18,
para. 90; Pretty v. United Kingdom (2002) Application No. 2346/02 para. 65; VC v. Slovakia (2011)
Application No. 18968/07, para. 105.
209
  Inter-American Court of Human Rights, Yakye Axa Indigenous Community v. Paraguay (2005)
Series C No. 125, paras. 162–4 (17 June 2005) [hereinafter Yakye Axa]. Many Inter-American Court
judgments are written in Spanish, and the English translations of the same word or term may vary from
one judgment to another. The Spanish term ‘vida digna’ has been translated as ‘dignified life’ or ‘digni-
fied existence’. This article generally uses either the Spanish term or the translation ‘dignified life’ which
is in accordance with the terminology of other international bodies.
210
  Inter-American Court of Human Rights, Villagrán-Morales et al. Case (The ‘Street Children’ Case)
(Guatemala) (1999) Series C No. 63, para. 144 (19 Nov. 1999) [hereinafter Street Children]. See, Jo
M. Pasqualucci, The Right To A Dignified Life (Vida Digna): The Integration Of Economic And Social
Rights With Civil And Political Rights In The Inter-American Human Rights System, 31 Hastings Int’l
& Comp. L. Rev. 1 (2008).
211
  Grant Hammond, Beyond Dignity? In The Law of Remedies: New Directions in the Common Law
(Toronto, 2010), 179.
 Compensation 347

and therefore immensely difficult to measure. Yet experience suggests that their physical
and emotional suffering is the very thing that has most concerned victims. In assessing
moral damage for these violations and designing the appropriate measures of redress,
there are a range of factors to take into account in matching the right that has been vio-
lated with the appropriate remedy: the conduct of the parties; the moral value attached
to the right violated; economic efficiency; the effect of the remedy that is afforded on
third parties or the public; the difficulties of calculating loss; and the practicality of
enforcement.212
National courts have begun to develop guidelines on moral damages, and have found
it important to do so: ‘given the inescapably artificial and conventional nature of the
assessment of damages for non-economic loss and personal injury actions . . . it is an
important function of the Court of Appeal to lay down guidelines . . . as to the quantum
of damages appropriate to compensate for various types of commonly occurring inju-
ries . . . The purpose of such guidelines is that they should be simple and easy to apply
though broad enough to permit allowances to be made for special features of individual
cases which make the deprivation caused to the particular plaintiff by the non-economic
loss greater or less than in the general run of cases involving injuries of the same kind’.213
By 2000, the England and Wales Court of Appeal had set down guidelines for damages
for non-pecuniary loss in respect of personal injuries.214 Noting the lack of a market for
happiness or expectation of life, the Court called for ‘fair and reasonable’ damages that
can assure adequate future care, taking into account the social burden of awards. In
New Zealand, the Human Rights Act 1993 sec. 92M allows damages to be awarded for
humiliation, loss of dignity, and injury to the feelings of the complainant or aggrieved
person.215
Intangible injuries such as physical pain and suffering thus have long been recognized
as legitimate elements of damages.216 Mental anguish independent of physical injury is
also now recognized as an element of recovery,217 including humiliation, loss of enjoy-
ment of life and other non-pecuniary losses.218 Loss of consortium when one is deprived
of a spouse may include loss of love and companionship as well as services in the home,
society, and sexual relations. The impairment of any of these gives a right to damages.
Interference with parent/child relations may lead to damages for loss of companionship,
comfort, guidance, affection, and aid. All these factors represent the irreplaceable intan-
gibles of family life. In civil law systems, ‘préjudice moral’ includes pain and suffering,
sadness and humiliation caused by disfigurement, loss of amenities, loss of recreational
ability, loss of any of the five senses, enjoyment of sexual relations, harm to marriage pos-
sibilities, and generally damage to the enjoyment of life.
At the international level, the UN Racial Committee recognized the need for repara-
tion for harm to dignity in its General Recommendation XXVI (2000) on the notion of
just and adequate reparation or satisfaction in Article 6 of the International Convention

212
 Ibid.
213
  Lord Diplock, Wright v. British Railways Board, [1983] 2 AC 773, 784 (HL).
214
  Heil v. Rankin, [2000] 3 All E.R. 138.
215
 Hammond, supra n. 211,189 reports that actual awards follow a ‘pattern of constraint’. See, e.g.,
Sahay & Anor v. Proceedings Commissioner (1999) 5 NZELC 98.567 (HC); Manga v. Attorney-General
[2000] 2 NZLR 65; (1999) 17 CRNZ 18.
216
 The first award in the USA is dated to 1763:  James F.  Blumstein et  al., ‘Beyond Tort
Reform: Developing Better Tools for Assessing Damages for Personal Injuries’ (1990) 8 Yale J. Reg. 171.
217
  See text to supra nn. 8–13.
218
  C.R. Cramer, ‘Loss of Enjoyment of Life as a Separate Element of Damages’ (1981) 12 Pac.
L.J. 965.
348 The Substance of Redress

on the Elimination of All Forms of Racial Discrimination. The recommendation

expressed the CERD’s belief ‘that the degree to which acts of racial discrimination and
racial insults damage the injured party’s perception of his/her own worth and reputation
is often underestimated’.219 The Committee notified states parties that, in its opinion,
the right to seek just and adequate reparation or satisfaction for any damage suffered as
a result of such discrimination is not necessarily secured solely by the punishment of
the perpetrator of the discrimination; at the same time the courts and other competent
authorities should consider awarding financial compensation for damage, material or
moral, suffered by a victim whenever appropriate.

11.4.1 Nature of the injury
Overall, where there has been an injury, the focus is at least in part on diminution of
the injured person’s expectations of life, sometimes called hedonic damages.220 In the
European system, moral damages have been awarded for anxiety,221 distress, ‘isolation,
confusion and neglect’,222 abandonment, feelings of injustice, impaired way of life, ‘har-
assment and humiliation’223 and other suffering. General feelings of sadness may be
insufficient.224 In some cases, due to the nature of the violation, the Court has presumed
moral injury.225 In other cases, as already discussed, the Court has found that the judg-
ment in itself constitutes just satisfaction. In Ribitsch v. Austria,226 the applicant com-
plained of mistreatment in custody, allegations that were denied by the government. The
Court found that the government had an obligation to provide a plausible explanation
of how the applicant’s injuries were caused. When no convincing explanation was forth-
coming, the Court found a violation of Article 3. The applicant claimed ATS250,000
(US$19,805). The government made no comment on the claimed amount, while the
Delegate of the Commission argued that a relatively high sum should be awarded in
order to encourage people in the same position as Mr Ribitsch to bring court proceed-
ings. Despite the Commission’s view, the Court awarded only ATS100,000 (US$7,922),
possibly influenced more by the applicant’s conduct (he was accused of selling heroin
responsible for the death of two persons) than that of the government.
The award of moral damages is influenced by the government’s conduct, but exces-
sive amounts will not be awarded in the nature of aggravated or punitive damages. In
Loizidou v. Turkey, the applicant said that a high award should be made to act as an
inducement to the government to observe the legal standards set out in the Convention
and should take into account the dilatory attitude of the government and its unfounded
objections. The Commission objected to some of the claimed aggravating circumstances
and especially objected to bringing in a punitive element ‘since the “public policy” con-
siderations adduced by the applicant concerned the global situation of displaced Greek

219
  Committee on the Elimination of Racial Discrimination, General Recommendation 26, UN
Doc. A/55/18, Annex V, 135 (2000).
220
  D. Laycock, Modern American Remedies, (2nd edn, New York, 1994), 175–6.
221
  Konig Case (1980) supra n. 62, 16–17, para. 19.
222
  Artico Case (1980) supra n. 62, 21–22, paras. 46–8.
223
  Young, James and Webster, supra n. 68, paras. 12–13.
224
 See Sidiropoulos and others v. Greece (1998) Application No. 26695/95 (judgment of 10 July
1998). The Court found a violation of Art. 11 due to the government’s politically motivated refusal to
register a Macedonian group as a cultural organization. The applicants asked for but were refused moral
damages based on alleged reputational harm and sadness.
225
  Abdulaziz, Cabales and Balkandali v. United Kingdom, supra n. 81, para. 96.
226
  European Court of Human Rights, Ribitsch v. Austria (1995) 21 EHHR 573.
 Compensation 349

Cypriots and thus went far beyond the perimeters of the individual case’.227 The Court
awarded CYP20,000 (US$37,674) for the applicant’s anguish and feelings of helpless-
ness and frustration, but expressly rejected consideration of the general situation.
The impact of the nature of the violation is seen in cases involving Article 2 or 3 where
the amount of moral damages awarded by the European Court depends on whether the
violation is based on a finding that the state was responsible for a substantive violation
or whether the violation is based on the procedural failings following an act that cannot
be attributed to the State. In the former case, the damages are usually around 60,000
euros, while procedural violations are compensated at half that amount, 30,000 euros.228
The Inter-American Court has characterized moral damages as ‘the result of the
psychological impact suffered by the family . . . because of the violation of rights and
freedoms guaranteed by the American Convention’, and, in the Honduran cases, ‘espe-
cially by the dramatic characteristics of the involuntary disappearance of persons’.229 The
Court seems to be rightly suggesting that one factor in assessing moral damages is the
egregiousness of the conduct of governmental authorities. In the Velásquez-Rodríguez
and Godínez-Cruz cases, the attorneys for the victims, designated as ‘counselors or advis-
ers to the Commission’ in order to permit them a role before the Court,230 asked for and
were granted a public hearing to present a psychiatric report on the moral damages suf-
fered by the victims’ families.231 At the hearing, the families demonstrated the existence
of moral damages through expert psychiatric testimony, which the government did not
refute. The government offered 150,000 lempiras; the Court awarded 250,000. In its
decision, the Court seemed to suggest that awards for emotional harm are particularly
appropriate in cases of human rights violations,232 based upon the principles of equity. It
also reiterated that reparations generally are to be effective and independent of the limi-
tations of national law. In the Aloeboetoe case, the Court awarded moral damages for pain
and suffering to the parents of the victims, presuming emotional injury from the viola-
tion: ‘it is essentially human for all persons to feel pain at the torment of their child’.233
In El Amparo v. Peru, the Court awarded moral damages for wrongful death, but it
did not say whether they were for the deceased’s injuries or those of the successors. The
Court stated, however, that when the violation is sufficiently serious, moral suffering of
the victims ‘and their families’ must be compensated.234 Families of those who survived
the attack did not receive moral damages. Either the Court felt that they had not suffered
an independent injury, or it assumed they would benefit from what the actual victim
was awarded.
In several cases, including Suárez Rosero v. Ecuador, the Court has stated that its
precedents can serve to orient it in regard to the amount of moral damages to award, to
demonstrate the principles to apply, although prior jurisprudence is not the only factor

227
  European Court of Human Rights, Loizidou v. Turkey (1995) Series A No. 310, para. 38.
228
  See e.g. Aslakhanova and Others v. Russia (2012) Application No. 2944/06, paras. 222-238.
229
  Velásquez-Rodríguez Case, supra n. 163, para. 50 (emphasis added).
230
  Only the states parties and the Commission have the right to submit a case to the Court: American
Convention on Human Rights (22 Nov. 1969) Art. 61, OASTS 36, OAS Off.Rec. OEA/Ser.L/V/II.23,
doc. 21, rev. 6 (1979). The Commission is represented by Delegates, who may be assisted by any person
of their choice, including attorneys for the victims: Rules of Procedure of the Court, Art. 22. This is
the only means by which the victims may directly participate in arguing the merits of their case before
the Court.
231
  The Commission supported the claim for moral damages, including some of the families’ requests
for non-monetary measures under the heading of moral damages: e.g. public homage through naming a
street, thoroughfare, school or other public place and a public condemnation of disappearances.
232
  Velásquez-Rodríguez Case, supra n. 163, para. 27. 233
  Aloeboetoe Case, supra n. 166.
234
  El Amparo Case, supra n. 164.
350 The Substance of Redress

it will consider. In theory, the judgment itself can serve as satisfaction, but a finding of
serious or grave violations will preclude this being the only award.235
The Inter-American Court of Human Rights took a major step in the evolution of
the law of remedies in its reparations judgment in Loayza Tamayo v. Peru,236 when it
recognized and accepted the concept of proyecto de vida as an element of damages inde-
pendent of lost future earnings. The Court described proyecto de vida as the applicant’s
reasonable expectations for the future.237 Unlike pecuniary damage for provable past
losses and lucro cessante for quantifiable lost future earnings, proyecto de vida alludes to
the ‘personal fulfilment’ of the affected person, taking into account the vocation, skills,
circumstances, potentialities, and aspirations that reasonably could be determined and
expected. The concept is thus linked to the self-actualization of the person, grounded
in individuality. If the proyecto de vida are cancelled or subject to interference, the loss
cannot be ignored by the Court.
The Court appeared to limit the claim of injury to proyecto de vida to cases demonstrat-
ing irreparable loss or severe impairment of the opportunities for personal development.
Where such injury has occurred, the ‘exigencies of justice’ and the aim of reparations,
which is to restore the individual to a situation as close as possible to the position he
or she would have occupied had the violation not occurred, justify an award. In other
words, it may approximate restitutio in integrum. Nonetheless, the Court found it could
not translate the injury into economic terms and therefore it abstained from awarding
compensation for the loss, noting also that the access of the victim to the international
tribunal and the decision itself could be seen as a form of satisfaction. Judge Carlos
Vicente de Roux Rengifo dissented on the last point, finding that the Court’s compen-
satory award of US$25,000 was inadequate. He recognized that the Court had taken a
progressive step in recognizing the concept of proyecto de vida injury, but criticized its
failure actually to award damages for the harm caused. He would limit such awards to
cases of death, disability, or serious interruption of career, modifications to the status
of the victim that might continue long after the specific violation had ceased and that
deprive the applicant of affection, pleasures, and satisfaction in life. In his view, not every
modification deserves to be compensated, but only those changes of such a magnitude
that they alter the foundations of life, such as the spiritual and emotional setting in
which life goes on or the impairment of the professional evolution in which the person
has placed great effort. Given the specific harm in this case, he would have granted an
additional US$124,190.30 to her.
While the Court has not awarded monetary compensation for interference with life
plans since the Loayze Tamayo case, in Cantoral Benavides, the Court required Peru to
fund a scholarship for the resumption of studies of a victim of unlawful detention and
torture, as reparation for interference with proyecto de vida.238

11.4.2 Equitable nature of awards

There are few developed principles for calculating awards of non-monetary injuries
like pain and suffering, fright, nervousness, grief, anxiety, and indignity.239 While these

235
  See also Inter-American Court of Human Rights, Blake v. Guatemala (reparations and costs)
(1999) Series C No. 48 (judgment of 22 Jan. 1999).
236
  Loayza Tamayo v. Peru (Reparations), supra n. 112. 237
  Ibid, para. 144.
238
  Inter-American Court of Human Rights, Cantoral Benavides Case (Reparations) (2001) Series
C No. 88.
239
  See M. Plant, ‘Damages for Pain and Suffering’ (1958) 19 Ohio State L.J. 200.
 Compensation 351

injuries constitute recognized elements of damages, they are particularly personal and
therefore difficult to measure. There is no objective test to measure the severity of a
victim’s pain, yet common human experience recognizes the reality of physical and emo-
tional suffering.240 The inherently subjective reaction to claims of pain and suffering
can lead judges to award widely varying amounts for similar injuries. Some argue that
intangible injury is so difficult to assess that there should be a conventional, set figure,
perhaps calculated by unit of time.241 Others claim that intangible harms like the loss of
enjoyment of life are economic losses that can be consistently calculated from an ex ante
perspective that asks how much a reasonable person would have paid to eliminate the
risk that caused the injury.242
The guiding principle in most courts for calculating damages for non-monetary
injury as an intangible loss is ‘fair compensation’ or equitable assessment. The European
Court of Justice has awarded damages for non-material injury (préjudice moral) for
shock, disturbance and uneasiness caused by the prospect of an unlawful dismissal,243 as
well as uncertainty, mental and emotional injury,244 and physical or mental suffering.245
The amounts are assessed on an equitable basis and the Court has on occasion awarded
symbolic damages of one euro.246
The Inter-American Court says that the amount of moral damages should be ‘based
upon the principles of equity’ considering the ‘special circumstances of the case’.247 In
its first judgments in the Honduran disappearance cases, the Court awarded moral
damages of US$125,000 without discussing the basis for the award other than its
mention of equity. In the Aloeboetoe case, the Commission asked SF660,000 (approxi-
mately US$330,000) for moral damages to the children, SF1,340,000 (approximately
US$670,000) for moral damages to the adult dependants, and a lump sum of SF2 mil-
lion (approximately US$1 million) for moral damages to the tribe. The basis of the claim
was psychological harm resulting from the deaths of loved ones, from being denied
information as to the victims’ whereabouts, and from being unable to bury the bodies.
The Commission also argued that the family members had suffered a loss of position in
their culture due to the death of each husband or father, because the traditional standing
of each family is based in part on the contributions of working men to their parents and
grandparents and their dignity reflects on the family as a whole. The government agreed
to compensate for moral damages to the family members, but objected to the request to
compensate the tribe.
The Court found that the victims had suffered moral damages due to abuse by an
armed band that deprived them of their liberty and later killed them:

240
  M. Geistfeld, ‘Placing a Price on Pain and Suffering: A Method for Helping Juries Determining
Tort Damages for Nonmonetary Injuries’ (1995) 83 Cal. L. Rev. 773.
241
  B.S. Markesinis, supra n. 28, 708.
242
  The dollar value of non-pecuniary loss is said to equal the difference between what people are
willing to pay to avoid a particular risk or injury or death and the solely financial component—medical
expenses, lost earnings—associated with that risk. Even someone fully insured against economic losses
will pay for some safety measures and require a wage premium to run risks at work. Such behaviour is
said to show the economic value of non-economic losses. See T. Miller, ‘The Plausible Range for the
Value of Life: Red Herrings Among the Mackerel’ (1990) 3 J. Forensic Econ. 17.
243
  European Court of Justice, Joined Cases 7/56 and 3–7/57 (Algera), 66–7.
244
  European Court of Justice, Case 152/77, Miss B. v. Commission [1979] ECR 2819, 2834–5;
Joined Cases 169/83 and 136/84, Leussink-Brummeljuis v. Commission [1986] ECR 2801, 2827–8.
245
  European Court of Justice, Case C-308/87, Grifoni v. EAEC [1994] ECR I-341, 366.
246
  See e.g. European Court of Justice Case 18/78, Mrs V. v. Commission [1979] ECR 2093, 2103.
247
  Velásquez-Rodríguez Case (Reparations), supra n. 163, para. 27; El Amparo Case, supra n. 164,
para. 37.
352 The Substance of Redress
The beatings received, the pain of knowing they were condemned to die for no reason whatsoever,
the torture of having to dig their own graves are all part of the moral damages suffered by the vic-
tims. In addition, the person who did not die outright had to bear the pain of his wounds being
infested by maggots and of seeing the bodies of his companions being devoured by vultures.248
As the Court noted, anyone subjected to the aggression and abuse described will
experience moral suffering; without futher explanation, the Court concluded that these
claims were survivable. It awarded the full amount claimed for the individuals, which
came to US$29,070 for each of six families and US$38,155 for the seventh. The Court
denied all claims on behalf of the tribe.
For a few years, the Court awarded an identical amount to each victim rather than
individualizing the award,249 setting the amount at US$20,000 per victim. Given
that the average monthly income in one case was estimated at US$125, the sum was
significant, although it was considerably less than the moral damages awarded in the
Velásquez-Rodríguez and Godínez-Cruz cases. This disparity may indicate a focus on
governmental wrongdoing, because the Court clearly found that the disappearances in
the Honduran cases were part of a systematic government practice, while determining
that the incidents in the El Amparo and Neira Alegria cases were not part of a pattern
or practice of violations. Moreover, the state accepted responsibility in the El Amparo
case and this was explicitly relied upon by the Court as a factor in assessing moral dam-
ages. While an apology or acceptance of responsibility may alleviate the suffering of the
survivors, assuming it is sincere, it does nothing for the deceased. The governments did
not offer an apology to the victims in either case. Moreover, the Court made the same
US$20,000 award of moral damages in the Neira Alegria case even though Peru did not
accept responsibility, unlike the governments in Aloeboetoe and El Amparo.
In El Amparo, the victims argued that the psychological damage was equal to that
in the Honduran cases because the families knew that their relatives were murdered
and additional violations were committed. They requested US$125,000 per family for
those who died and half that amount for the two survivors.250 In Neira Alegira, the
Commission also sought US$125,000 moral damages per victim, a sum which the
government called ‘exorbitant’. The government invoked the practice of the European
Court, mistakenly asserting that the judgment ‘normally’ constitutes just reparation for
the damage inflicted. The Court rejected the government’s submission that the judg-
ment alone should satisfy because of ‘the extreme gravity of the violation of the right to
life and of the moral suffering inflicted on the victims and their next of kin’. The Court
rejected using prior cases as precedents, stating that each case must be looked at on its
own facts and that compensation must be awarded on an equitable basis.
In the Neira Alegria case, the government asserted that the case should be distin-
guished from a forced disappearance: ‘it is a case of persons who were charged with a
crime and unfortunately lost their lives when an organized revolt was being crushed’.
According to the government, the moral damages were inflicted on the next of kin by
the victims themselves ‘when they unlawfully took part in acts connected with terrorism,
which was the reason for their arrest and untimely deaths’. The Court rightly rejected the
government’s approach of blaming the victim for the violation.

248
  Aloeboetoe Case, supra n. 166, para. 51.
249
  El Amparo, supra n. 164 and Neira Alegria Cases, supra n. 167.
250
  According to the brief, all compensatory damages would be paid one-third to the surviving
spouse and two-thirds to the children. One-half of the moral damages would be given to the children,
one-quarter to the spouse and one-quarter to the fathers.
 Compensation 353

The European Court of Human Rights damage awards for non-pecuniary harm are
difficult to comprehend other than as subjective judgments about the moral worth of the
victim and the wrongdoer. Ringeisen was the first case in which the Court made a mone-
tary award and it set the pattern for subsequent decisions. The applicant had complained
of the length of his detention on remand in Austria. The Court rejected two of the appli-
cant’s complaints, but held that there had been a breach of Article 5(3) in that Ringeisen’s
detention had continued longer than reasonable. The total time involved was slightly less
than two years and five months, which the Court found exceeded the reasonable amount
by twenty-two months. Ringeisen claimed moral injury for his ‘unjustified detention’,
damage to his reputation and irremediable damage to his health, which reduced his
life expectancy and required constant medical care. He did not furnish, however, any
expert opinion or medical evidence that his health had declined during his detention.
In assessing moral damages, the Court explicitly noted that Ringeisen was found guilty
and sentenced to a term in prison for which his time in remand was credited, and the
detention was ‘less severe’ than the regime in prison. Nonetheless, the Court noted that
he had protested his innocence and ‘certainly felt such excessive detention on remand to
be a great injustice’. The detention also interfered with his ability to conclude his bank-
ruptcy. Assessing all the factors, the Court fixed DM20,000 (US$11,147) as the sum to
be paid. In a later interpretation of the judgment, the Court held that the amount due
must be free from creditors.
In subsequent cases, the Court has often failed to award any moral damages. In prison
cases, the parties and the Court sometimes discuss the conditions of confinement in
assessing damages. Arguably, even where the issue is the wrongfulness of the detention,
the conditions under which the wrongfully detained person is held may impact on the
degree of suffering, thus varying the amount of moral damage. On the other hand, unless
the conditions of confinement are severe enough to constitute an independent human
rights violation, they are probably not relevant to the feelings of frustration and outrage
suffered by someone wrongfully detained. A few decisions of the European Court have
awarded high moral damages and appear to focus extensively on the wrongdoing of the
government; indeed the Bozano251 case may be close to an award of exemplary damages.
Bozano, an Italian national, was forcibly taken by the French police from Limoges to the
Swiss border. The applicant was subsequently extradited from Switzerland to Italy where
he began to serve a life imprisonment sentence on the island of Elba.
The sentence had been imposed after a trial in absentia. Bozano sought a presidential
pardon or a reopening of the criminal proceedings against him. He also sought com-
pensation for material and non-material damage for himself and his wife, assessed at
more than FF3,300,000 (US$548,409) for the detention. He based his claim in part
on a rate of FF2,000 a day for his detention in France, in Switzerland, and in Italy from
the night he was taken by the French police until 18 June 2005, the first date when he
might be eligible for parole. The Court rejected the first claims as not being linked to the
French violation, as well as any claims on behalf of Mrs Bozano, who was not a party to
the proceeding. The French government countered that he should be given a nominal
award of FF1,000.
The Court found that the French sum was ‘far from being commensurate with
the seriousness of the breach’ of the Convention. The Court characterized the viola-
tion of the right to liberty and to security of person as ‘a disguised form of extradition
designed to circumvent a negative ruling by the appropriate French court, and an abuse

251
  European Court of Human Rights, Bozano v. France (Art. 50) (1987) Series A No. 124E.
354 The Substance of Redress

of deportation procedure for objects and purposes other than its normal ones’.252 The
Court said that the attendant circumstances inevitably must have caused the applicant
substantial non-pecuniary damage. Noting that the European Commission had rejected
complaints by Mr Bozano against both Switzerland and Italy, the Court held that the
award of just satisfaction could not include compensation for any of the events in those
two countries. Nonetheless, the forcible removal of Mr Bozano from Limoges was held
to have caused him real damage, although the amount could not be precisely assessed.
The Court decided on an equitable basis to award the applicant FF100,000 which it felt
to be commensurate with the scale of the relevant damage, and also awarded the full
amount of attorneys’ fees claimed, less the sums received in legal aid.
Herrman Bock v. Germany,253 differs from other Article 6(1) cases concerning the
length of civil proceedings because much of the period was spent refuting unfounded
allegations about the state of the applicant’s mental health. The Court called this a seri-
ous encroachment on human dignity and awarded DM10,000 (US$5,573). In Allenet
de Ribemont v. France,254 the Court awarded a lump sum FF2 million (US$332,369) for
pecuniary and non-pecuniary damage when the length of proceedings was coupled with
a violation of the presumption of innocence. The latter aspect seems to have played a key
role in the decision. Finally, in one of the few Article 3 cases to reach the Court, Tomasi
v. France,255 the Court awarded FF700,000 (US$116,329) stating that ‘the applicant
sustained undeniable non-pecuniary and pecuniary damage’.
In awarding moral damages, the past practice of the European Court nearly always
did not consider a claim of discrimination barred by Article 14 once it found a viola-
tion of another right guaranteed by the Convention. In Luedicke, Belkacem and Koç
v. Germany,256 for example, Turks living in Germany alleged discrimination because they
had to pay the costs of interpretation during trial. The Court held that Germany had vio-
lated Article 6(3), concerning proper trial procedure, and that this finding made unnec-
essary a determination that discrimination motivated the government’s behaviour. The
Court’s approach mistakenly ignores the impact of discrimination on the dignity of
the individual and provides no deterrence to discrimination. A violation of Article 14
should be considered an aggravating factor in the assessment of moral damages because
it normally causes further harm to a victim to know that the violation was motivated
by racial, religious or linguistic prejudice. The Court should always make a determina-
tion on the Article 14 claim when moral damages are sought and enhance the award
if it finds a violation of this guarantee. The European Court, as previously noted, also
seems to give unjustified weight to the character and reputation of the victim. All too
frequently, the Court’s decision to award compensation, and the amount awarded, are
explicitly linked to its assessment of the worthiness of the victim. As early as the Vagrancy
cases, the Court indicated that it was not necessary to afford the victims compensation
taking into account their social status.257 In other words, because the applicants were
homeless and unemployed they need not be afforded moral damages for the actions of
the government.

252
  Ibid, para. 8, citing the judgment on the merits, European Court of Human Rights, Bozano
v. France (1986) Series A No. 111, paras. 60–1.
253
  Bock v. Germany (1989) Series A No. 150.
254
  Allenet de Ribemont v. France, supra n. 69.
255
  European Court of Human Rights, Tomasi v. France (1992) Series A No. 241A.
256
  European Court of Human Rights, Luedicke, Belkacem and Koç v. Germany (Merits) (1978) Series
A No. 29; (Art. 50) (1980) Series A No. 36.
257
  The government referred in the Vagrancy cases to the law on ‘social misfits’: De Wilde, Ooms and
Versyp v. Belgium, supra n. 62, 6, para. 12, and 7, para. 13.
 Compensation 355

11.5  Evidence and Presumed Harm

Wrongdoing leads to immediate and more long-range harm. Like a stone thrown into a
lake, the consequences of the wrong ripple outward in ever-widening circles. Legal con-
cepts of foreseeability and consequential loss affect who may claim injury and for what
losses. In most legal systems, doctrines similar to ‘proximate cause’ are used to define the
extent of liability by excluding more remote consequences where there is an uncertain
critical link, or cumulative uncertainties about causation, making it impossible to say
according to the accepted standard of proof that the wrong caused the harm. The burden
of proof is generally on the claimant who is assumed to be in the best position to know
and marshal evidence of the consequences of the wrong. However, where deterrence is
especially important, as in human rights cases, the risk of uncertainty or lack of proof
may be shifted to the wrongdoer.
In general, all damages directly attributed to the wrong done are compensable and
causation is a crucial question. If the victim has suffered no loss, or would have suffered
the same loss without the wrongdoer’s conduct, then compensation is not due. Damages
must have been caused in fact by the wrongdoer and the wrong must be the proximate
cause of the damage suffered. Once causation is established, the wrongdoer is charged
with all harm that naturally flows from the wrongful act even though it was not foreseen
at the time of the misconduct.
Most courts allow claims for future consequences that are reasonably certain.
Damages cannot be awarded when they are too conjectural and speculative to form
a sound basis for measurement, but absolute certainty is not required in establishing
damages.258 Compensatory damages are often at best approximate; they have to be
proved with whatever definiteness and accuracy the facts permit. In injury to property
cases, provable injury caused by the wrong may include damage to business reputation
and goodwill, using methods of calculation accepted by economists and accountants.259
Loss may be determined in any manner which is reasonable under the circumstances,
such as a diminution in the value of the business when it was sold. For intangible injury,
proof of causation can be a problem for the victim, in contrast to items of economic
expense, like prior medical bills or lost earnings.
In actions against the state, corrective justice theory may lead to presuming compen-
sable harm when rights are violated, since the harm is inherently intangible and there-
fore impossible of proof.260 The presumption of harm may be particularly important in
human rights cases where the victims complain of violations such as deprivation of the
right to vote or invasion of privacy. It is difficult to demonstrate the monetary value of
such intangible, irreparable losses. Yet, if the victim is not awarded damages for the harm,
the judgment may have neither compensatory nor deterrent effect.261 Many courts thus

258
  Johnson v. Baker, 11 Kan.App. 2d, 719 P.2d 752 (1986).
259
  Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wash.2d 712, 845 P.2d 987 (1993).
260
 Love, supra n. 3; M. Wells, ‘The Past and the Future of Constitutional Torts: From Statutory
Interpretation to Common Law Rules’ (1986) 19 Conn. L. Rev. 53; D. Dobbs, The Law of Remedies
(St. Paul, 1993), 528.
261
  As in private tort law, damages for constitutional violations serve both to compensate and to
deter: Carey v. Piphus, 435 U.S. 247, 254–7 (1978). On the deterrent function of compensatory dam-
ages in constitutional tort litigation, see J. Newman, ‘Suing the Lawbreakers: Proposals to Strengthen
the Section 1983 Damage Remedy for Law Enforcers’ Misconduct’ (1978) 87 Yale L.J. 447, 464–7;
D. Rendleman, ‘The New Due Process: Rights and Remedies’ (1975) 63 Ky.L.J. 531, 566–7; M. Yudof,
‘Liability for Constitutional Torts and the Risk-Averse Public School Official’ (1976) 49 S. Cal. L. Rev.
1322, 1366–83; J. Niles, ‘Comment, Civil Actions for Damages under the Federal Civil Rights Statutes’
(1967) 45 Tex.L.R. 1015; J. Love, ‘Damages: A Remedy for the Violation of Constitutional Rights’
356 The Substance of Redress

value the intangible interests by determining what amount of damages would reasonably
suffice for someone in the place of the victim and presuming the victim suffered to that
extent, often inferring both the fact of the harm and the extent of the harm from the
circumstances surrounding the wrongdoer’s conduct.262 Some injury clearly flows from
the mere fact of the wrongful act and compensation for such dignitary harms redresses
the outrage felt by an individual whose fundamental rights have been violated.
National courts have long used presumed general damages for loss of the right to vote,
because the loss constitutes non-monetary harm that cannot easily be quantified, but is
likely to have occurred.263 In one United States case,264 African American and Hispanic
registered voters brought a class action for interference with their voting rights during a
local election. They sought compensatory damages for being prevented or discouraged
from voting. The court ruled that the plaintiffs were entitled to recover presumed general
damages.265 The class of approximately 1,000 plaintiffs entered into a settlement agree-
ment with the defendants whereby each plaintiff was entitled to ‘nominal damages’ of
US$50. Additional damages were awarded based upon ‘damage points’ that were given
according to the degree of interference with the right: one point for being ‘subjected to
obstacles in voting’; two points for harassment, intimidation or abuse; three points for
actual prevention from voting. After payment of the nominal damages, the settlement
fund was distributed in accordance with the damage points.266 The distinctions made
indicate that the award was for actual damages, not the inherent value of the constitu-
tional right, which would have resulted in identical damages for each plaintiff. Instead,
those who suffered more harm by being actually prevented from voting received more
than those who were merely harassed or mildly obstructed.
Courts may also compensate deprivations of fundamental rights that are not shown
to have caused actual injury through the award of a nominal sum of money. By making
the deprivation of such rights actionable for nominal damages, the law recognizes the
importance to organized society that they be observed. At the same time, this approach
upholds the principle that substantial damages should be awarded only to compensate
actual injury or to deter or punish egregious violations.
The former European Court of Human Rights was strict in requiring allegations and
proof of pecuniary harm and moral injury,267 but sometimes presumed moral and even
pecuniary injury from the nature of the violation. As noted by the Commission and the
Court in Konig v. Germany,268 it is in fact an extremely difficult matter to identify with
precision the prejudice suffered as a result of certain types of violations, such as those
involving the undue length of domestic proceedings. Dr Konig asked for moral damages

(1979) 67 Cal. L. Rev. 1242; M. Pilkington, ‘Damages as a Remedy for Infringement of the Canadian
Charter of Rights and Freedoms’ (1984) 62 Can.B.Rev. 517; J. Jeffries, Jr., ‘Damages for Constitutional
Violations:  The Relation of Risk to Injury in Constitutional Torts’ (1989) 75 Va. L.  Rev. 1461;
S. Nahmod, ‘Constitutional Damages and Corrective Justice: A Different View’ (1990) 76 Va. L. Rev.
997; D. Rotenberg, ‘Private Remedies for Constitutional Wrongs: A Matter of Perspective, Priority and
Process’ (1986) 14 Hastings Const. L.Q. 77.
262
  Restatement (Second) of Torts, s. 904, cmt. A (1979): ‘there need be no proof of the extent of harm,
since the existence of the harm may be assumed and its extent is inferred as a matter of common knowl-
edge from the existence of the injury’.
263
  A common law precedent more than 200 years old allows presumed general damages for depriva-
tion of the right to vote. See Ashby v. White, 2 Ld.Raym. 938, 92 Eng.Rep. 126 (K.B. 1703).
264
  Vargas v. Calabrese, 634 F.Supp. 910, 913 (D.N.J. 1986). 265
 Love, supra n. 3, 122.
266
 Ibid.
267
 See Konig v. Germany, supra n. 62, 14, para. 19 (‘Dr Konig alleges . . . injury but he does not prove
their existence or specify their extent; neither does he indicate the sums to which he considers himself
entitled by way of satisfaction’).
268
 Ibid.
 Compensation 357

in an amount to be set by the Court. The Court did not deem it ‘appropriate’ to have him
called on to plead the exact amount of compensation he was claiming. The Court noted
that Dr Konig was kept in a state of ‘prolonged uncertainty’ during the more than ten
years of proceedings, which led him ‘to defer unduly, in view of his age, the search for an
alternative career’. This fact had to be taken into account as well as the impact the delay
had in his postponing the sale or lease of his medical clinic. Considering the lost oppor-
tunities and the deep anxiety he felt, the Court awarded DM30,000 (US$16,720).
Other judgments similarly have awarded presumed moral damages, where the Court
has admitted that distress or anxiety cannot be concretely proven.269
The Court may make a lump sum award where it finds evidence of injury, but the
valuation cannot be determined with precision.270 In general, European Court awards
for pecuniary losses are far less common than non-pecuniary because of the Court’s
strict requirements of causality and proof. The burden of proof is on the applicant to
prove harm was suffered and that the harm was caused by the violation.271 The Court
nonetheless has recognized that circumstances within a country may make it difficult, if
not impossible, to adduce the evidence necessary to prove specific values for pecuniary
harm.272 In most cases involving procedural violations, Article 50 (now 41) awards are
refused because the applicant understandably fails in the burden of proof, there being no
way to demonstrate what result the domestic court would have reached in the absence
of the violation.273 In Ruiz-Mateos v. Spain,274 for example, the Court found a violation
of Article 6(1) because the applicant could not participate in proceedings concerning
the expropriation of assets and the proceedings were not conducted within a reasonable
time. The Court rejected the family’s claim for 2,000 million pesetas (US$13,814,265)
for damage, holding that:
There is nothing to suggest that, in the absence of these violations, the Constitutional Court would
have declared the infringed law void and the European Court cannot speculate as to the conclu-
sion which the national court would have reached.275
In Eckle v.  Germany,276 the Court indicated that it will not presume damages
in procedural cases. Like Dr Konig and Ruiz-Mateos, the Eckles complained of
the unreasonable length of domestic proceedings. They pleaded both pecuniary

269
 See Airey v. Ireland, supra n. 50; Lawless v. Ireland, supra n. 49; European Court of Human Rights,
Stögmüller v. Austria (1969) Series A No. 9; Swedish Engine Drivers’ Union v. Sweden, supra n. 49; König
v. Germany (1978) Series A No. 27; Klass and others v. Germany (1978) Series A No. 28; Eckle v. Germany
(1982) Series A No. 51; Piersack v. Belgium (1982) Series A No. 53; Le Compte, Van Leuven and De
Meyere (Art. 50) (1982) Series A No. 43; De Jong, Baljet and Van den Brink (1984) Series A No. 77.
270
  Hornsby v. Greece (1998) 69 Reports 1998-II 727 (judgment of 1 Apr. 1998).
271
  Lawless v. Ireland (Merits), supra n. 49; European Court of Human Rights, Neumeister v. Austria
(1968) Series A No. 8.
272
  See, in particular, Akdivar and others v. Turkey, supra n. 185; Mentes and others v. Turkey (1997),
Reports of Judgments and Decisions 1997-VIII 2693 (judgment of 28 Nov. 1997), Selçuk and Asker
v. Turkey, supra n. 184.
273
  See e.g. Neumeister v. Austria, supra n. 271; European Court of Human Rights, Leudicke, Belkacem
and Koç v. Germany (Art. 50) (1980) Series A No. 36.
274
  European Court of Human Rights, Ruiz Mateos v. Spain (1993) Series A No. 262.
275
  Ibid, paras. 69–70. See also the following cases where the Court has emphasized ‘that it cannot
speculate as to what the outcome of the proceedings might have been had there been no breach of the
Convention. Since no causal connection between the violation and the alleged damage has been estab-
lished, the claim must be dismissed’: European Court of Human Rights, Bricmont v. Belgium (1989)
Series A No. 158, 33, para. 97; Skarby v. Sweden (1990) Series A No. 180B, para. 35; Hakkansson and
Sturesson v. Sweden (1990) Series A No. 171A, at para. 72; Philis v. Greece (1991) Series A No 209, 25,
para. 71.
276
  Eckle v. Germany (1982), supra n. 269; Eckle v. Germany (Art. 50) (1983) Series A No. 65.
358 The Substance of Redress

(DM5,049,284 = US$2,814,265) and non-pecuniary (DM703,124,150 = US$391,892,788)

injury. The Court held that ‘the alleged financial losses of Mr and Mrs Eckle result from
the very existence and outcome of the prosecutions brought against them. There is noth-
ing in the evidence submitted to support the view that the asserted damage was attribut-
able to the failure to comply with the requirements of Article 6’.277 The Court denied
both claims, awarding only a portion of the claimed fees and costs.
The Court is not consistent with regard to its requirements of proof, especially in
procedural cases. It seems more influenced by its own view of the unfairness of the
proceedings and the character of the applicant than by available proof of harm. In Vidal
v. Belgium,278 for example, in contrast to the Ruiz-Mateos and Eckle cases, the Court
awarded a lump sum of BF250,000 (US$6,757) in pecuniary and non-pecuniary dam-
ages and BF300,000 (US$8,108) for costs and expenses for a criminal appeal in which
the applicant’s sentence was enhanced. The defence counsel had attempted to call four
witnesses but the court had refused without giving reasons. The European Court of
Human Rights found this a violation of Article 6. The applicant claimed BF2 million
(US$54,045) in non-pecuniary damage and BF548,242 (US$14,815) in pecuniary
damage. The Court, while saying it could not speculate on the outcome of the proceed-
ings had the witnesses been called, nonetheless said that there was non-pecuniary dam-
age and ‘it appears not unreasonable to regard him as also having suffered a loss of real
opportunities’.
Moreira de Azevedo,279 an Article 6(1) case where the reasonable time in a domestic
proceeding was exceeded, included a claim of 8 million escudos (US$43,500) in pecuni-
ary damages and 2 million escudos (US$10,875) in non-pecuniary damages, as well as
reimbursement of costs and expenses. The domestic proceeding was a partie civile case
in which the applicant sought to hold a criminal defendant liable in damages for assault.
The proceedings began in 1988 and were not completed by the date of the European
Court’s judgment in 1991. The government noted that the damages he sought were
more than double his claim in the domestic court proceedings. The Court, finding that
damages might still be awarded in the domestic proceedings, awarded him 4 million
escudos (US$21,750) undifferentiated pecuniary and non-pecuniary damages, holding
that ‘the excessive length of the criminal proceedings must have caused the applicant
pecuniary damage, and definitely caused him non-pecuniary damage’.280 He was also
awarded all his costs.
Finally, in Weeks v. United Kingdom, where the Court found a breach of Article 5(4)
due to the applicant’s inability to challenge the lawfulness of his detention, the Court, in
contrast to the Ruiz case, engaged in speculation:
It cannot be entirely excluded that he might have been released earlier and, in view of his age,
might have obtained some practical benefit. Consequently, Mr Weeks may be said to have suffered
a loss of opportunities by reason of the absence of such proceedings, even if in the light of the
recurrence of his behavioural problems the prospect of his realizing them fully was questionable.281

277
  European Court of Human Rights, Series A No. 65, para. 20. Note that the Eckles were complain-
ing regarding a criminal prosecution in which they were found guilty. Dr Konig’s case was a civil one.
278
  European Court of Human Rights, Vidal v. Belgium (1992) Series A No. 235B.
279
  European Court of Human Rights, Moreira de Azevedo v. Portugal (Art. 50) (1991) Series A No.
189A; (Art 50) (1991) Series A No. 208C.
280
  Ibid, para. 12.
281
  European Court of Human Rights, Weeks v. United Kingdom (Art. 50) (1988) Series A No. 145A,
para. 13. See also Goddi v. Italy (1984) Series A No. 76, para. 35, Bonisch v. Austria (1986) 9 EHRR 191,
para. 11; and Barbera, Messegue and Jabardo v. Spain (1994) Series A No. 285C, paras. 15–20.
 Compensation 359

In cases where the applicant can demonstrate that the arrest and prosecution were
unlawful, and not simply that there were procedural violations during a lawful proceed-
ing, the Court appears more willing to recognize the causal link between the violation
and the claim of damages. Teixeira de Castro v. Portugal,282 involved police entrapment
in a drug offence in violation of Article 6(1). The applicant claimed 2,052,000 escudos
(US$11,157) for loss of earnings for the three years he spent in prison based on his
monthly salary before the arrest. He also asked for 15,000,000 escudos (US$81,561) for
lost future earnings because of his inability to find a job due to his prosecution. The gov-
ernment argued there was no causal link between the violation and the injury while the
Commission supported his claim on the basis that his detention derived from unlawful
police conduct. The Court agreed with the Commission and the applicant:
The documents in the case file suggest that the term of imprisonment complained of would not
have been imposed if the two police officers had not intervened. The loss by [the applicant] of his
earnings while he was deprived of his liberty and of opportunities when he came out of prison
were actual—and indeed are not disputed by the Government—and entitle him to an award of
just satisfaction. Likewise, the applicant has indisputably sustained non-pecuniary damage, which
cannot be compensated for merely by finding that there has been a violation.
Some judges have objected to the difference in approach between unfair proceedings
ab initio and unfairness in the proceedings, finding that a causal link between the viola-
tion and damages should be presumed in both cases. In Van Mechelen and others v. The
Netherlands,283 the Court found violations of Article 6(1) and (3) after four applicants
were convicted based on the evidence of police officers whose identities were unknown
to the defence and whose demeanour could not be observed. The applicants were sen-
tenced to fourteen years in prison, but after the judgment of the European Court on the
merits of the case, the Minister of Justice suspended the execution of the prison sentences
for three months and later released the applicants and told them there was no need to
serve the remainder of their sentences. One of the applicants required psychiatric treat-
ment for depression and suicidal tendencies resulting from the length of his detention
and prolonged uncertainty as to the outcome of the proceedings. Under the law of the
Netherlands, the criminal proceedings could not be reopened, so restitution was impos-
sible. During the subsequent just satisfaction proceedings, the applicants said that they
would have had a realistic chance of being acquitted if the proceedings were according
to Convention standards, therefore, their convictions were unsafe and their detentions
illegal. They sought NLG250 (US$125) for each day of detention, a sum they viewed
as justified by the extreme length of the detention, approximately half of which they
had spent in detention on remand under a regime more restrictive than that applicable
to convicted prisoners serving their sentence. They said they had suffered psychological
harm and their sense of justice had been outraged. Due to widespread press coverage
they were still viewed as guilty, their honour and reputation remained tarnished and
their criminal records remained. The Court said that it could not speculate as to the
outcome of the proceeding, but noted that there was a breach and as both sides agreed,
no retrial was possible, thus damages were appropriate.
The dissent of Judge Foighel is convincing. In his view, the trial was not fair and, as
a result of it, the applicants were convicted and spent several years in prison after being

282
  European Court of Human Rights, Teixeira de Castro v. Portugal (1999) 28 EHRR 101 (judgment
of 9 June 1998).
283
  European Court of Human Rights, Van Mechelen and others v. The Netherlands (Art. 50) (1997)
56 Reports 1997-VII 2426.
360 The Substance of Redress

denied a real opportunity to secure for themselves a more favourable outcome of their
trial. ‘Admittedly it is not for our Court to speculate as to what the outcome of the pro-
ceedings might have been had it been otherwise. But that is not the point’.284 Article 6
enshrines the presumption of innocence and provides the accused with procedural guar-
antees for a fair trial, which were not afforded. ‘Accordingly, it is by no means established
(“until proved guilty according to law”) that the applicants would have received such
heavy sentences, or even been convicted, had the proceedings against them met the
standards of the Convention. It is up to the Government to challenge this presumption,
if possible’.285 The applicants must continue to benefit from the presumption of inno-
cence and on this basis he would have awarded NLG150,000 (US$75,000).
The standard of proof required to demonstrate a causal link between the loss and the
violation is high and lack of such proof is the most important factor in rejecting claims
for pecuniary damages,286 even where common sense suggests the causal link is there. In
the Airey case, the Court found that Mrs Airey’s move from one home to another, causing
her a loss of IR£1500, was not due to her inability to obtain access to a Court where she
could petition for judicial separation, but rather ‘by her general situation underlying her
wish to have such access and, in particular, by her fear of molestation by her husband’.287
The Court thus rejected her claim, although but for the violation, Mrs Airey likely would
have had judicial protection against her husband and would not have needed to move to
escape him. Similarly, in Doustaly v. France,288 the applicant was an architect in Nimes
who spent nine years trying to collect on a contract to build a school for the city. He
asserted that he sustained a considerable loss resulting from the prolonged failure to
determine his rights, which damaged his reputation and had a negative effect on his
ability to carry on his profession. In fact, he had closed his practice after he was excluded
from the public, semi-public and quasi-public projects of the city once the dispute arose,
and lost private clients. He noted that the amount due him amounted to more than
thirty per cent of his practice for the year 1984 when it should have been paid by the city
government. The Court found that the applicant ‘was to a certain extent professionally
dependent as an architect on Nîmes City Council’289 and therefore it was necessary to
bring to a close as quickly as possible the dispute that affected his profession. The Court
thus considered that ‘special diligence’ was required in this case, regard being had to the
fact that ‘the amount the applicant claimed was of vital significance to him and was con-
nected with his professional activity’.290 Yet, although the applicant submitted evidence
by an independent auditor of pecuniary losses of FF8,956,468 (US$1,488,428) plus

284
 Ibid. 285
 Ibid.
286
  See e.g. Lawless v. Ireland, supra n. 49; Neumeister v. Austria, supra n. 271; Stögmüller v. Austria,
supra n. 269; European Court of Human Rights, De Wilde, Ooms and Versyp v. Belgium (Vagrancy cases)
(1971) Series A No. 12; Ringeisen v. Austria (1971) Series A No. 13; Swedish Engine Drivers’ Union
v. Sweden, supra n. 49; Engel and others v. The Netherlands, supra n. 52, 68–9; Handyside v. United
Kingdom, supra n. 48; König v. Germany, supra n. 269; Airey v. Ireland, supra n. 50; Deweer v. Belgium,
supra n. 62; Buchholz v. Germany (1981) Series A No. 42; Dudgeon v. United Kingdom (1981) Series
A  No. 45; Van Droogenbroeck v.  Belgium (1982) Series A  No. 50; Adolf v.  Austria (1982) Series A
No. 49; Le Compte, Van Leuven and De Meyere v. Belgium, supra n. 269, 7–8; X. v. United Kingdom (1982)
Series A No. 55, 15–16; Albert and Le Compte v. Belgium (1983) Series A No. 68; Dudgeon v. United
Kingdom (Art. 50) (1983) Series A No. 59; Silver and others v. United Kingdom (1983) Series A No. 61;
Pakelli v. Germany (1983) Series A No. 64; Silver and others v. United Kingdom (Art. 50) (1983) Series
A No. 67; Van der Mussele v. Belgium (1983) Series A No. 70; Sutter v. Switzerland (1948) Series A
No. 74; Corigliano v. Italy (1982) Series A No. 57.
287
  Airey v. Ireland, supra n. 50, 8–9.
288
  Doustaly v. France (1998) 70 Reports of Judgments and Decisions 1998-II 850 (judgment of
23 Apr. 1998).
289
  Ibid, para. 48. 290
  Ibid, citing Ruotolo v. Italy (1992) Series A No. 230D, para. 17.
 Compensation 361

FF170,000 for miscalculation of interest, and the Commission found that the deliber-
ate delay of the city supported by the courts led ‘to the complete and permanent ruin
of his architect’s practice’, the Court said a causal connection between the closure of
his practice and the city’s failure to pay was not established. It did find that he had a
loss of reputation leading to a fall-off in private clients, resulting in ‘considerable loss
caused by the climate of distrust’ brought about by the litigation. It awarded FF500,000
(US$80,092) and the full amount of FF100,000 (US$16,618) claimed for moral dam-
ages, plus FF40,000 of FF50,502 claimed in costs and expenses. The amount seems
extremely low in light of the facts.
In other judgments, the Court has presumed lost opportunities and awarded compen-
sation for them without proof of loss.291 In Campbell and Cosans v. United Kingdom,292
the Court presumed compensable injury in holding that the use of corporal punishment
in Scottish schools breached the right of objecting parents to ensure their children’s
education was in conformity with their own religious and philosophical convictions and
that the suspension of a student who refused to accept such punishment violated the stu-
dent’s right to education. The Court awarded pecuniary damages to the student, in spite
of a lack of quantifiable loss, finding that his educational level and opportunities would
have been different in the absence of the violation.293 It denied damages to the student’s
mother, who claimed the cost of obtaining private education for her children because
of the public school corporal punishment. The Court noted that she furnished no sup-
porting evidence and that a newspaper reported that her son Gordon was attending an
independent school which used corporal punishment. The Commission Delegate had
asked Mrs Campbell to provide the name of the school, which she declined to provide
and, indeed, she had ‘not denied the truth of the newspaper report’.294
In two cases, married couples were unable to occupy their homes. One couple alleged
a violation of Article 8 (privacy and family life) and the other applicants asserted proce-
dural violations of Article 6. The results suggest that the facts were more significant than
the specific Convention Articles invoked, but in neither case was the Court generous. In
Gillow v. United Kingdom,295 the applicants sought an order directing the government to
restore their residence qualifications to live on the island of Guernsey and also requested
pecuniary damages because the government refused them permanent and temporary
residence licences. They alleged that the denial was a violation of Article 8 and had
caused them to sell their home at a price less than the true market value. They sought the
difference between the selling price and the market price. They also sought the differ-
ence between the proceeds of the sale and what they would have to pay for a replacement
property in Guernsey. They asked for UK£50,000 (US$80,905) plus the estate agent’s
fees on the sale and a house survey fee in pecuniary damages. The government objected
to the demands. The Court found that the couple could have retained and rented the

291
 See Colozza and Rubinat v. Italy (1985) 89 ECHR (ser. A) at 17, para. 38; Delta v. France, supra
n. 151; De Geouffre de la Pradelle v. France (1992) 253B ECHR (ser. A) at para. 39; H. v. United Kingdom
(1988) 136B ECHR (ser. A) at 17, para. 13 (Art. 50); O. v. United Kingdom, 136A ECHR (ser. A) at 9,
para. 12 (Art. 50); W. v. United Kingdom, supra n. 46 at 25, para. 12; B. v. United Kingdom (1988) 136D
ECHR (ser. A) at 33, para. 10 (Art. 50); R. v. United Kingdom (1988) 136E ECHR (ser. A) at 42, para.
12 (Art. 50); Bonisch, supra n. 153, at 8, para. 11 (Art. 50).
292
  Campbell and Cosans v. United Kingdom (1983) 60 ECHR (ser. A) (Art. 50).
293
  According to the Court, ‘It is true that, in the normal course of events, an individual who has not
had the full benefit of educational opportunities will be likely to encounter greater difficulties in his
future career than one who has’, ibid at 13, para. 26. The Court set an award of US$4,748.70 for both
pecuniary and non-pecuniary damage.
294
  Ibid at 7–8, para. 11.
295
  Gillow v. United Kingdom (1986) 198 ECHR (ser. A), 11 EHRR 335.
362 The Substance of Redress

house, but did not act unreasonably in deciding to dispose of it, so they should be reim-
bursed the fees involved in the sale. The Court found that the sales price could not be
considered as less than market value because it was within the estimates of real estate
agents. The claim for the costs of a replacement property was held to be unsubstanti-
ated by evidence and thus denied. The couple also claimed moral damage of £100,000
(US$161,810) for severe stress and anxiety. The government argued for a rejection of the
claim or a maximum award of £1,000 (US$1,618). The Court called the moral damage
‘significant’, due to the couple’s feelings of insecurity about whether they could live in
their home or not, and awarded £10,000 ($16,181).
Lechner and Hess v. Austria,296 similarly involved a government’s refusal to let own-
ers occupy a house. The applicants did not allege a violation of Article 8, but rather of
Article 6(1) because of the length of proceedings concerning occupation of their house
in Vienna. The applicants, a married couple and the mother of the wife, purchased the
house in 1970, moving in one month after the purchase. A few weeks later, the sellers
informed the buyers that the planning department had not given permission for the
house to be occupied. On 20 March 1972, the buyers received a permit to occupy part
of the house only. They appealed this decision, at the same time pointing out a number
of structural defects in the dwelling. Six months later, the city authorities withdrew
the permit, but the applicants continued to live in the house until October 1978. In
the meantime, they commenced legal action against the sellers in 1972—a case that
continued until 1980—while the sellers filed criminal actions for defamation against
them. The wife was acquitted in the defamation action, but the husband was convicted.
In 1973, the buyers filed a criminal complaint against the sellers but the public pros-
ecutors refused to take the case forward. The buyers continued to press this matter
until 1976 without success. On 6 August 1975, the buyers asked for ATS2.5 million
(US$198,052) in compensation from the city of Vienna because, due to the unlaw-
ful conduct of the planning department, the sellers had lived in the building for fif-
teen years without a permit and the building was then sold with its structural defects.
The damages action was unsuccessful and the house was sold at auction to pay a fine
imposed for unlawful occupancy of the house as well as creditors’ claims. Reviewing
this nightmare, the European Court concluded that the Austrian authorities were at
least partly responsible for the excessive time of the proceedings, a violation of Article
6(1). In response to the applicants’ claim of equivalent property to that which they had
lost or a lump sum compensation of ATS3 million (US$237,662) plus non-pecuniary
damages, the Court presumed lost opportunities, as well as prolonged uncertainty and
anxiety. In the absence of detailed proof of pecuniary losses, however, the applicants
were awarded ATS200,000 (US$15,844) plus ATS150,000 (US$19,805) in costs, out
of the ATS3 million claimed.
The Inter-American Court of Human Rights has focused less on proof of causation
and more on limiting the remoteness of claims. The Court, in the Aloeboetoe v. Suriname
case, first discussed the issue of proximate harm, noting that all human actions cause
remote and distant effects. It is not clear why the Court raised the matter, although it
may relate to the Court’s concern about the Saramaca tribe’s claim for moral damages or
the claims of the parents of the victims. Whatever the underlying reason, the Court was
not helpful in distinguishing between compensable injury and harm that is too remote
from the act for the actor to bear responsibility. According to the Court, the responsible
party must ‘make reparation for the immediate effects of such unlawful acts, but only

  Lechner and Hess v. Austria (1987) 118 ECHR (ser. A).

296
 Compensation 363

to the degree that has been legally recognized’.297 This suggests a double limitation: the
injury must be ‘immediate’ (undefined) and one that has already been recognized by law.
This is an exceedingly difficult test to apply in a new court where there is little precedent.
The Inter-American Court in Gangaram Panday v. Suriname298 discussed causality
more directly, in the process creating considerable hurdles for victims seeking a remedy.
Gangaram Panday was illegally detained and died while in government custody. The
complaint alleged that Suriname violated the victim’s rights to life, humane treatment,
personal liberty and judicial protection, as well as the general obligation to respect and
ensure the Convention rights. The Court unanimously found a violation of the right to
personal liberty, but in its first divided opinion, held 4–3 that the government’s responsi-
bility for the victim’s death had not been proved. It also noted that the finding of responsi-
bility for deprivation of personal liberty was reached ‘by inference’. Seemingly because of
this, it awarded nominal damages, not including lost earnings or other indirect damages,
and it denied costs.299 The victim’s wife and any children were to be paid US$10,000 or
its equivalent in Dutch florins within six months of the date of the judgment.
The judgment wrongly conflates the decision on the merits with the judgment on
compensation; the type and quantum of evidence leading to a finding of responsibil-
ity has no bearing on whether costs are awarded, nor on the amount of damages. The
amount and type of evidence goes to a determination of whether or not the state is
responsible. The degree of wrongfulness of a state’s conduct may be a variable in award-
ing moral damages, but in no case does the amount of evidence affect the amount of
actual damages suffered by the victims. It is a general principle of tort law that criteria of
liability are separated from criteria of damages. Once liability is established, the plaintiff
recovers the full amount of her injuries, regardless of how close the judgment might have
been. Apart from theoretical objections to the Court’s decision, it undermines respect
for the Convention. In the Honduran cases, the Court rightly held that the state cannot
rely on failure of proof as a defence if the evidence cannot be obtained without the state’s
cooperation. By contrast, the Court in the Gangaram Panday case failed to shift the bur-
den to the government to explain how the victim died while in custody.
By not requiring the government to come forward with evidence on the treatment
and fate of the custodial victim, the Court imposed a heavy and undue burden on future
litigants. It signals to states accused of violations that they can avoid being held respon-
sible or having to compensate victims if they succeed in withholding or concealing evi-
dence that would prove the allegations. In recent cases, the Court has continued to
appoint experts to assist in the evaluation of damages. In Loayza Tamayo v. Peru, the
Court requested from the Colegios Medicos of Chile and Peru, as additional evidence,
the designation of one or more of its members to report on the physical and psychologi-
cal health of the victim and the psychological health of her children. In the case of Neira
Alegria et al. v. Peru,300 the Court appointed an actuary and instructed him to use the
figure of US$125 per month as the probable monthly income of the deceased, who died
in a prison uprising.

297
  Aloeboetoe Case, supra n. 166, para. 49 (emphasis added).
298
  Inter-American Court of Human Rights, Gangaram Panday Case (Merits) (1994) Series C No. 16.
299
  ‘Since Suriname’s responsibility has been inferred, the Court decides to set a nominal amount
as compensation . . . Also based on the fact that Suriname’s responsibility has been inferred, the Court
considers that it must dismiss the request for an award of costs’. Ibid, paras. 70, 71.
300
  Inter-American Court of Human Rights, Neira Alegria et al. Case (Reparations) (1998) Series
C No. 29.
364 The Substance of Redress

11.6  Compensation for Procedural Violations

In its early decisions, the European Court of Human Rights rarely awarded moral dam-
ages for procedural violations (Arts. 5(1)–(4) and 6(1)). More recent cases show a trend
in favour of moral damages, at least for psychiatric patients, if not for convicted prison-
ers. Yet, it remains hard to observe the workings of any principled decision-making.301
The Casciaroli302 and Tusa303 judgments are illustrative. Both cases were brought against
Italy and concerned the length of civil court proceedings. Both proceedings involved car
accidents. In Casciaroli the husband of the applicant was killed, but the Tusa proceed-
ings lasted two years longer. The applicant in Casciaroli was awarded 60 million lira
(US$33,779), while the Tusa claimant received 10 million lira (US$5,630). The dam-
ages seem linked more to the results of the accident and sympathy for the widow than to
the length of proceedings that constituted the violation of the Convention.
The Court seems unduly stringent in its causality requirement, particularly in regard
to procedural violations. Most award requests fail in these cases because of the burden
of demonstrating the hypothetical results were it not for the violation in the underlying
proceedings, something that probably never can be proved. One alternative would be to
shift the burden of proof. The Court could require no more than evidence of the viola-
tion. If it is shown, then the burden should shift to the state to show that the error was
harmless, i.e. that the outcome would have been the same, absent the violation.
Another reasonable method for determining lost opportunities resulting from pro-
cedural violations would be, first, to establish how much better off the victim would
have been had the outcome of the proceedings been favourable, and, second, to estimate
the probability of a favourable outcome if the violated rule had been observed, assum-
ing there is no clear proof of either harmless error or the certainty of a different verdict.
The applicant should receive the proportion of the amount equal to the probability of
success. In cases of high probability the entire amount may be awarded. Conversely, no
amount of pecuniary compensation may be given where there is an extremely low prob-
ability of success in the absence of procedural violation, although moral damages will be
warranted in most cases because of the inherent harm to the rule of law and frustration
to litigants produced by violations of fair trial procedures.
The European Court has been inundated with procedural delay cases, most of which
have been filed against Italy, although this is undergoing change since the Italian gov-
ernment adopted the so-called Pinto Act on 18 April 2001 to respond to the Court’s
jurisprudence and demands of the Committee of Ministers. The Act enables litigants to
claim compensation before a national court for any damage resulting from the excessive
length of past or present proceedings before national tribunals. The European Court has
decided that this now constitutes a remedy that must be exhausted before applicants can
file a case with the European Court for procedural delay in Italy. The law expressly links
any compensation to an Italian court’s finding that Article 6(1) has been violated in a
specific case.304 The criteria applied are the same as those used by the European Court. In

301
  European Court of Human Rights, Megyeri v. Germany (1992) Series A No. 237A; Herczegfalvy
v. Austria (1992) Series A No. 244.
302
  European Court of Human Rights, Casciaroli v. Italy (1992) Series A No. 229C.
303
  European Court of Human Rights, Tusa v. Italy (1992) Series A No. 231-D.
304
  Section 2 of the Act provides: ‘Any person having suffered material or non-material damage as a
result of violation of the “reasonable time” requirement of Article 6, para. 1 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, ratified by Act No. 8548 of 4 August 1955,
shall be entitled to just satisfaction’.
 Compensation 365

considering whether or not there has been a violation, the Court considers the complex-
ity of the case, the conduct of the applicant, and the conduct of the government. On the
merits, the Court distinguishes delays in procedure that are attributable to the conduct
of the litigants from those due to problems in judicial administration. The simplicity or
complexity of the case then becomes a factor in determining whether the length of time
involved in resolving the case is a ‘reasonable’ one or not.
The Court has selected two areas of law where speed is deemed to be required: employ-
ment matters;305 and civil status and capacity.306 The Court has not emphasized criminal
matters in a similar way, although the Convention itself calls for ‘prompt’ and ‘speedy’
determination of deprivations of liberty (Art. 5(3), (4)). Both civil and criminal trials are
to be held within ‘a reasonable time’ (Arts. 5(4), 6(1)). It can be argued that the uncer-
tainty and loss of reputation attendant on being accused of a crime should place these
matters on a priority basis where there is a backlog of cases and that the Court should
be sensitive to the potentially far greater moral harm done by delay when a person is
accused of a crime.
The Court’s decisions on damages in delay cases reflect many of these problems, with
its lack of analysis or articulation of principles with regard to assessing damages gener-
ally, but the deficiencies are more apparent because of the number of cases involved. The
delay cases are often assigned to the same chamber for consideration together, so differ-
ences in the amounts awarded cannot be attributed entirely to different assessments by
different panels. Far more cases of delay concern civil matters than criminal ones. The
amount of time involved ranges from four years, five months (Pugliese II) to more than
eighteen years (Tusa, Pannellfelli) and the damages awarded range from a declaration
that the judgment is sufficient satisfaction to an award of 150,000,000 lira (US$84,448)
plus 5,200,000 lira in costs and expenses. In several of the early cases, the Court appeared
to presume the existence of some pecuniary as well as non-pecuniary harm, awarding a
lump sum for both.307 In later cases, the Court has taken a stricter approach to the proof
of pecuniary losses attributable to the delay and almost never makes an award under this
heading.
The assessment of damages seems influenced by additional factors. While it might be
assumed, given the nature of the violation, that the amount of time the domestic pro-
ceedings exceeded the guarantees of the Convention would be the key factor in assessing
moral damages, with a greater amount awarded for a longer delay, this is not the typical
result. Cases with identical delays result in very different awards, while shorter delays are
sometimes compensated with higher awards than for longer delayed cases. The period
of delay is only one of the elements apparently taken into account, and seems decisive
only when all other elements in the case are equal, which is rarely the situation. While
the Court never discusses the basis for the awards it makes, leaving much to speculation,
analysis of the cases shows several factors to be significant.
The type of case is the first significant factor. Employment and civil status cases are
given priority. The few cases in which the applicants were awarded the full amount of the

305
  Vocaturo v. Italy, supra n. 63, 32, para. 17. See also Ruotolo v. Italy, supra n. 290, para. 17 and the
disability pension cases: European Court of Human Rights, Nibbio v. Italy (1992) Series A No. 228A;
Borgese v. Italy (1992) Series A No. 228B; Biondi v. Italy (1992) Series A No. 228C; Monaro v. Italy
(1992) Series A No. 228D; Lestini v. Italy (1992) Series A No. 228E.
306
  Bock v. Germany, supra n. 253, 23, para. 29. See also European Court of Human Rights, Gana
v. Italy (1992) Series A No. 230-H, para. 17.
307
  See the following cases: European Court of Human Rights, Capuano v. Italy (1987) Series A No.
119A; Bagetta v. Italy (1987) Series A No. 119B; Milasi v. Italy (1987) Series A No. 119C; Brigand
v. Italy (1991) Series A No. 194B.
366 The Substance of Redress

compensation they claimed include Salesi (disability pension), Caleffi (employee salary
dispute), and Vocaturo (employee salary dispute). The amount of delay in the cases was
seven years, seven months (Caleffi); twelve years, four months (Vocaturo); and more than
six years (Salesi). The amounts claimed and awarded were 10, 10.5 and 11 million lira.
Larger claims have been made in other cases, but only in one other matter did the Court
award the full amount that the applicant claimed.308 Other cases appear to confirm that
the nature of the delayed matter seems to influence the Court. Accusations of crimes
of moral turpitude can result in higher awards if the applicant is found innocent, as in
Angelucci,309 where the applicant was wrongly accused of involvement in drug-trafficking.
It required eight years, two months to clear his name and he was awarded 30 million lira.
The Court found other violations besides the breach of Article 6(1).
In 2003, procedural delay cases were at issue in 263 out of 703 judgments. Over the
past five years, France, Greece, Poland, Portugal, and Turkey have joined Italy in having
numerous cases submitted against them on this issue. Indeed, the issue has come up in
respect of most of the member states.
Where the applicant in prior domestic proceedings sought a declaratory judgment,
such as determination of who has a right of way, and there is little or no money at stake,
the Court usually finds its judgment is sufficient for the moral harm, regardless of the
delay involved.310
As a second factor, plaintiffs who eventually won the domestic case do better than
plaintiffs who lost, and both do better than defendants who lost. In criminal cases, the
awards will be much lower where the domestic proceeding eventually found the appli-
cant guilty or resulted in an ambiguous outcome (for example, amnesty before judgment
or discharge for insufficient evidence). In civil cases, the Court appears to feel that a
plaintiff and especially a defendant who ultimately lost the domestic case did not really
suffer from the delay because the judgment against them was deferred. Thus, in Steffano,
the Court found the judgment alone just satisfaction where the applicant, a lawyer, had
lost her fees claim in a domestic court proceeding lasting eight and a half years. The
Court always notes when the applicant received monetary damages at the conclusion of
the domestic proceeding, but this does not preclude an award of non-pecuniary damages
by the Court. In cases that are still pending at the domestic level when the European
Court decides the case, the Court often reduces the damages on the basis that it is pos-
sible the applicant may still recover in the domestic proceeding. Thus, the applicant in
Zanghi was not awarded any damages.
Criminal defendants who are convicted are also treated less well than defendants who
are acquitted, especially when the charges are serious. In Milasi, the applicant was acquit-
ted after nine years, seven months. He received 7 million lira. The same panel awarded
Bagetta 15 million for political accusations of which he was found innocent after more
than thirteen years. In three cases that lasted roughly the same amount of time (between
seven and seven and a half years), the applicant in Motta, who was accused of medical
fraud and amnestied, received 10 million lira, while the Manzoni applicant, convicted of

308
  That case, Triggiani, is not an employment matter but a criminal case and it resulted in the largest
amount the Court has awarded for procedural delay. Triggiani was a bank employee accused of bank
fraud, forgery and criminal association. The prosecution lasted twelve years, two months, at the end of
which he was found not guilty. In the meantime he lost his job and his family. The Court awarded him
150 million lira (US$84,448) damages plus costs and expenses of 5.2 million lira. European Court of
Human Rights, Triggiani v. Italy (1991) Application No. 13509/88.
309
  European Court of Human Rights, Angelucci v. Italy (1991) Series A No. 196C.
310
  Compare European Court of Human Rights, Cifola v. Italy (1992) Series A No. 231A (more than
five years) with Ridi v. Italy (1992) Series A No. 229B (thirteen years).
 Compensation 367

drug offences, received 1 million lira. Alimena, acquitted of contempt of court charges,
also received 10 million lira. In a case that lasted more than two years longer than these
three, the applicant, Ficara, who was acquitted of malicious prosecution after nine years,
seven months, also received 10 million lira. Suspected guilt and the behaviour of the
applicant also seemed to influence the Court in its award in the Girolami case, where the
applicant, a butcher accused of fraud in meat sales, ran away when the charges were filed.
The case was dismissed due to insufficient evidence. The applicant asked for 3 million
lira in non-pecuniary damages, but the Court found that the judgment constituted just
satisfaction.
Unfortunately, it also appears that the personal characteristics or social standing of the
applicant plays a role in awards. In two criminal cases, where the accused were a member
of parliament (Frau) and a colonel (Viezzer), the damages were more than double cases
of similar length where the applicants also were acquitted. Frau was accused of extor-
tion and acquitted after proceedings that lasted six years, eight months. Yet, he received
20 million lira, twice the damages awarded for the somewhat longer Alimena and Motta
cases. Colonel Viezzer received 25 million lira for delays in a still-pending (after nine
years, six months) accusation that he disclosed sensitive confidential governmental
information to which he had access. In Maj, where the applicant was suspected of ter-
rorist sympathies and also prosecuted on a weapons charge, the five years, eight months’
proceeding came to an inconclusive result. The European Court awarded 5  million
lira. The same relatively low award was made in the Messina case, where the applicant
was accused of drug-trafficking and being a member of the Mafia. He had claimed 3,000
million lira, for a proceeding that lasted seven years, four months and was still pending
at the time of the European Court’s judgment.
In civil cases, the Court has distinguished between individual applicants and compa-
nies, refusing to award moral damages to the latter and even questioning whether legal
persons are capable of suffering moral harm.311 The cases have involved civil proceed-
ings lasting between eight and eleven years. The Court has been very inconsistent in its
awards when the affected person died during the pendency of the national proceedings.
In Lombardo, which challenged the length of time that a case regarding a judge’s pension
had been pending (eight years, four months), the claim was pursued by the judge’s heir,
his daughter. The Court found the judgment constituted just satisfaction. In contrast, in
Casciaroli, the widow of a man who was killed in a traffic accident was awarded 60 million
lira (the Court’s second highest judgment in these cases) for a sixteen-year proceeding
in a rather simple case.
The finding of other violations will increase the award. In Angelucci, the applicant
received 30 million lira where findings of other violations were made.
Finally, in many cases, the applicants or their lawyers made no specific claim to mon-
etary compensation, referring generally to the Court’s discretion. In others, the sums
claimed are clearly excessive (3,000 million lira in Messina). Applicants sometimes lump
together claims for pecuniary and non-pecuniary damages, providing no evidence of the
former. Triggiani was a rare case where the applicant gave specific information on how
the lengthy proceeding had directly impacted his life. He received a high award. Delay
cases are capable of being resolved on the merits through application of an almost math-
ematical formula, based on the Court’s assessment of what would have been a reasonable

311
  See European Court of Human Rights, Cooperative Parco Cuma v. Italy (1992) Series A No. 231F;
Idrocalco v. Italy (1992) Series A No. 229F; Manifatture v. Italy (1992) Series A No. 230B; Caffe Roversi
S.p.a. v. Italy (1992) Series A No. 230G. The ability of a company to claim moral damages in the
European Court was settled in Comingersoll, supra n. 82.
368 The Substance of Redress

length of time for the case subtracted from how long the proceeding actually took and
minus any delays due to the conduct of the applicant. The result is the time the proceed-
ing exceeded the requirements of the Convention. From this the Court could assess
pecuniary and moral damages based on the type of case and its outcome.
Where pecuniary loss is claimed, delay in a civil case can impact either the plaintiff or
defendant and affect the outcome of the proceeding. Witnesses and other evidence may
disappear or become less reliable. While the European Court cannot retry the domestic
case, it can put the risk of loss on the state. If a case has been won at the national level,
the Court should ask what would have been the value of the amount won if the case
had been decided in a timely manner. What are the lost opportunities for investment?
Courts routinely make similar calculations in assessing the present value of future earn-
ings. Alternatively, the Court could award interest on the amount won in the national
proceeding, dating from the time the verdict should have been rendered. The interest
should not be charged to the national defendant who is not responsible for the delays,
nor should the plaintiff bear the losses.
If the applicant to the European Court lost the delayed civil proceeding and claims
the delay caused the verdict, the issue is more complicated. The question becomes one
of who should have to prove that the outcome would have been different. If the appli-
cant has the burden of proof, it will be even harder to succeed than during the delayed
proceeding at the national level. The delay that led to the allegedly wrong verdict in the
national court only becomes longer as the case proceeds through the European system.
The burden of proof will be impossible to meet in nearly all cases. It would seem fairer
to make the state that is responsible for the delay demonstrate that the result would not
have been different if the case had been heard in a timely manner.
In criminal cases where the applicant has been convicted, the European Court pres-
ently holds the view that it cannot order the state to release or retry the accused. It is
possible that the applicant will not claim that the outcome was affected and will only
seek compensation for the uncertainty that was present until the verdict was rendered. In
other cases, the applicant may challenge the outcome of the delayed proceeding, because
the delay allegedly hampered the defence. As in the civil case, if the burden of proof is on
the applicant to demonstrate that the outcome would have been different, the applicant
will nearly always lose because the further delay makes the evidence even less likely to be
available. Putting the burden on the state may be even more justified than in a civil case
because delay always increases the possibility of a wrong verdict. The longer the delay the
greater the possibility that the conviction was erroneous. Damages could be measured
in such a case by taking a percentage which increases over time and multiplying it by the
years of sentence and the lost (legal) income over that period. The percentage would have
to be based on the Court’s view of the probability that the verdict was erroneous, but the
approach offers some degree of certainty in assessing pecuniary losses in cases of proce-
dural delay. Those who are found innocent after a delayed criminal trial should recover
all the lost income and costs involved in defending themselves against the accusations
during the excessive time period.
Moral damages in delay cases will also depend upon whether the case is civil or crimi-
nal and on the outcome of the proceeding. In criminal cases where the person is detained
and ultimately found not guilty, there should be no variation in amounts awarded for
loss of liberty for equal times spent in detention. All innocent persons can be deemed
to suffer the same moral injury for each day of wrongful detention. The treatment
afforded during that time may be considered only if the applicant alleges that it falls
below the standards required by the Convention. Similar amounts should also be given
for the uncertainty and anxiety resulting from delayed proceedings. The Court should
 Compensation 369

still consider moral damages for someone found guilty, as having the charges pending
for years may impact on mental health, which is often precarious from the beginning.
Failure to conclude the proceedings in a timely fashion also delays rehabilitation.
In civil cases, delay in concluding proceedings can lead to anxiety and frustration.
It is not clear that this should vary with the type of case, although the European Court
of Human Rights has found employment cases to be a high priority. It is not clear that
an employment dispute over past salary is any more important to resolve quickly than a
dispute over occupancy of one’s home or access to children in state care. In all civil pro-
ceedings the applicants are seeking vindication of rights and justice. The maxim applies
in all cases that justice delayed is justice denied.

11.7  Distribution of Awards

Survivability of claims has led human rights tribunals into questions of choice of law
regarding inheritance and succession. The Inter-American Court has tended to develop
its own law rather than deferring to the national law of the state concerned or any
expressed wishes of a decedent through a will or testament. According to the Court, in
the case of international human rights violations, beneficiaries need not be heirs under
the law of the state where the violation occurred to be considered such by the Court.312 In
Velásquez-Rodríguez v. Honduras313 and Godínez-Cruz v. Honduras,314 the Commission
and the state agreed on a designation of beneficiaries that was limited to the wife and
children of the disappeared, ‘once they had fulfilled the requirements of Honduran law
to be recognized as heirs of the victims’. The Court rejected this limited agreement,
holding that ‘the family members . . . need only show their family relationship. They are
not required to follow the procedure of Honduran inheritance law’. In fact, the secre-
tariat of the Court, under instructions from the President, requested information from
Honduran officials, including ‘the names and status of their wives; and those of any con-
cubines recognized in any official document, and names and civil status of their children,
those of the marriage and any outside the marriage’.315 The Court has held that it applies
‘general principles of law’ on succession in the absence of treaty or custom on point.316
In Aloeboetoe v. Suriname,317 the Inter-American Court faced the difficult problem of
identifying those among the family members of the deceased who would be entitled
to compensation once the violation was found. The case was brought by members of
the Saramacas, or Maroons, descendants of African slaves who maintain a traditional
culture, including a matriarchal social structure and polygamy.
The Court, applying what it called a generally recognized choice of law principle,
determined that local law should apply to determine next of kin and beneficiaries of the
victims. Surinamese law holds that a victim’s next of kin includes the legally recognized
spouse, the children, and perhaps dependent parents of the victims. The law does not
recognize polygamy. In contrast, Saramaca tribal customary law accepts multiple mar-
riages and the duty of adult children to care for their parents. The Court found that
Surinamese family law was not effective in the region and was therefore not the local law

312
 Inter-American Court of Human Rights, Velásquez-Rodríguez v. Honduras (Compensatory
Damages) (1990) Series C No. 7, para. 54.
313
 Ibid.
314
  Inter-American Court of Human Rights, Godínez-Cruz v. Honduras (Compensatory Damages)
(1989) Series A No. 8.
315
  Ibid, para. 13(4), (5). 316
  Aloeboetoe, supra n. 166, para. 61. 317
 Ibid.
370 The Substance of Redress

for the purposes of the case.318 As a result, the multiple wives and children of the victims
were recognized by the Court.319
Governments rightly push for application of national laws of succession to decide
on those entitled to compensation, while the Commission continues to seek broader
redress. In the case of Neira Alegria v. Peru,320 the Commission sought compensation for
the wife, three minor children, and sister of one victim. For another, it presented claims
for the victim’s companion and his daughters by two women, while for the third victim,
a bachelor, the claimants were his father, mother and two brothers. The government
argued that Peruvian law establishes who a person’s successors are and the sister of Neira
Alegria should not be included. The Court agreed in part, but recalled that all aspects of
reparations including the designation of beneficiaries, are governed by international, not
domestic, law. It recalled its previous finding that most legal systems designate a person’s
children and surviving spouse as successors. Thus, the sister was not included in the list
of beneficiaries entitled to compensation. Unlike the Blake and Loayza Tamayo cases,
the sister did not claim to be an injured party herself, and would only have shared in an
award as a successor to the victim.
In cases of death or disappearance, the Court’s succession law has resulted in a divi-
sion of awards between spouse and children that provides less to the surviving spouse
than would be the case in many national legal systems. In the Velásquez-Rodríguez and
Godínez-Cruz cases, the Court, without indicating the basis of its judgment, divided all
amounts awarded between the surviving spouse and the children, giving one-quarter to
the surviving spouse and three-quarters to the children, even when there was only one
child, as in Godínez-Cruz.321 In El Amparo v. Venezuela,322 the Court altered the propor-
tions for dividing pecuniary damages, awarding one-third to the spouse and two-thirds
to the children. If the victim had no spouse, but had a companion, the spouse’s portion
would go to the companion. Where there was both a wife and a companion, with chil-
dren fathered by both, the two families would equally divide the indemnity. In the event
there was neither spouse nor companion, the damages would be paid to the victim’s
surviving parent or parents, and, if none, to the victim’s siblings. Moral damages were
divided with one-quarter going to the spouse, one-quarter to the parents, and one-half to
the children. If the parents are deceased, their share goes to the children. All the deceased
thus far have been male and many have had double families recognized by the Court.
The Court’s judgments on allocation are inconsistent with most legal systems in the
Western hemisphere and with common sense. The majority of states parties and judges
are part of civil law legal systems. In such systems, as well as many common law systems,
the estate of a decedent includes his or her real and personal property and outstanding
claims. The estate may be transmitted by testamentary disposition or by the law of suc-
cession. In the absence of a valid testament, civil law systems establish an order for the
distribution of the decedent’s estate through succession. In general, they establish that

318
  Marriages were not registered with the government, partly due to lack of knowledge among the
Saramaca about civil law and partly because the government failed to provide accessible facilities to
register births, deaths, and marriages.
319
  The Court found no issue under the Convention with recognition of polygamy. By contrast, the
Court refused to place the monetary compensation under the control of the female head of the family
because this would involve gender discrimination.
320
  Inter-American Court of Human Rights, Neira Alegria v. Peru (1995) Series A No. 20.
321
 The Gangaram Panday case is an exception. The Court divided the US$10,000 damage award
equally between the widow and the children:  Inter-American Court of Human Rights, Gangaram
Panday Case (Merits) (1994) Series C No. 16, para. 70.
322
  Inter-American Court of Human Rights, El Amparo Case (Reparations) (1996) Series C No. 28.
 Compensation 371

the first order of heirs is the category of descendants of the deceased, with a surviving
spouse sharing in the inheritance with the descendants. In the absence of descendants,
ascendants are entitled to the estate. Other relatives may inherit the property if none of
these categories of persons is living.
What the Court has failed to do is properly determine the estate of the decedent
before making the allocation. Civil law distinguishes between marital property (bienes
ganaciales) and personal property. The surviving spouse is entitled to half of the marital
property; the other half is distributed among the heirs as the decedent’s estate. This fact
becomes important because earnings during marriage are part of the bienes ganaciales
and thus the spouse should be entitled to half of all compensatory damages that rep-
resent lost earnings. The Inter-American Court has never recognized this fact and has
generally failed to distinguish between marital and personal property (moral damages
would be the personal property of the decedent).
Nor does it appear than any evidence has ever been introduced about the existence
of a will or testament left by a victim. Should one exist, the Court should recognize the
right of testamentary disposition of property according to the law under which the testa-
ment was drafted.
In recognizing unmarried unions, the Court reflects the law of some states, including
Argentina, Bolivia, and Brazil,323 but as yet there has been no comment on the interac-
tion of this recognition with the provisions of human rights instruments that call on
the state to protect the family and how such provisions should be interpreted. Instead,
and despite bans on polygamy, the Court has divided its awards equally between legal
spouses and ‘concubines’.

11.8  Inflation, Interest, and Taxation of Damages

Monetary awards are affected by economic changes over time and by tax policies in the
country where the money is received. Most courts, including the Inter-American Court,
discount the total predicted future earnings in recognition of the fact that money held
today is worth more than money to be received in the future.324 In addition, interna-
tional tribunals make efforts to ensure that awards are protected from loss of value.

11.8.1 Discounting and inflation

Where lost future earnings comprise part of an award of pecuniary damages, courts may
adjust the amount to account for inflation where persistent inflation would most likely
lead to an increase in the victim’s wages each year. Predicting future earnings without
considering the effects of inflation on wage levels produces an unrealistically low esti-
mate of the victim’s total future earnings. It is a growing trend for courts to attempt to
account for the effects of inflation either by incorporating inflation into the computation

323
  See e.g. Brazil statute No. 8/971 of 29 Dec. 1994.
324
  The United States Supreme Court ruled in 1916 that awards for lost future earnings in certain
federal cases must be discounted: Chesapeake and O. Ry. V. Kelly, 241 U.S. 485, 489–91 (1916). The
present value of future earnings is the amount of money that a future claim would be worth today.
For example, if the interest rate is 10%, the present value of US$100 to be paid one year from now is
approximately $91, because $91 could be invested at 10% and increase in value to $100 in one year. See
F. Fabozzi and H. Weitz, ‘Discounting and the Determination of Economic Damages’ Trial Law Q.,
Spring-Summer 1976, 39.
372 The Substance of Redress

of future earnings, then using the market interest rate as the discount rate, or by using a
discount rate equal to the market interest rate minus the inflation rate. Discounting to
present value is more commonly done, because there is less agreement over how future
inflation is to be considered.
There are at least three ways to discount future losses to present values and adjust for
inflation: an exact off-set of inflation against a discount rate, yielding a zero rate; partial
off-set to achieve one discount rate (a real interest rate) or separate calculation of infla-
tion and discount rates, to be applied jointly. Some analysts have demonstrated that in
stable economies the factors that lead to discounting awards are almost totally off-set by
factors that lead to increasing the awards. Thus, no adjustment is the most accurate pre-
dictor of lost future earnings.325 The inflating factors are wage increases due to inflation
and productivity gains; the discounting factor is the interest rate, which reflects both
inflation and the real interest rate. The same inflation rate should be used both to inflate
and to discount, making the net effect of inflation zero, leaving only productivity-based
wage increases and the discount effect of the real interest rate. According to this view,
the traditional method is under-compensatory326 since it fails to increase the award to
account for productivity gains and because it discounts the award not only by the real
interest rate,327 but by the inflation rate. If the real interest rate and productivity increases
are equivalent, total off-set works by increasing and decreasing the award by the same
amount.328 Although this method may be valid in stable economies, it is questionable
whether it would be appropriate in unstable economies with very high inflation rates and
interest rates that do not keep pace with them.
In each case, courts should look carefully at the economics of the situation to deter-
mine the rate of productivity and real interest rate, rather than using simple discounting
and increasing by inflation. The goal of a court awarding damages for lost future earnings
is to provide the victim with a sum of money that will replace the money he would have
earned had there been no disability or death. Awards that do not account for increases
due to inflation and labour productivity gains are likely to be under-compensatory.
Conversely, awards that are not discounted to account for the time value of money will
be over-compensatory. Total off-set, where appropriate, has the virtue of ease of applica-
tion if the economic indicators support it.
In the Akkus v. Turkey329 judgment of 9 July 1997, the European Court of Human
Rights accepted the applicant’s contention that a state must consider the impact of infla-
tion if it delays paying a sum due for expropriation of property. Although statutory inter-
est was paid for the seventeen-month delay, inflation at the time was running at seventy
per cent per annum. The difference was held to be a loss deriving from the expropriation
of the applicant’s land and therefore an interference with the right to property protected

325
 Ibid.
326
  If a tort victim is given $91 to invest at 10% for one year to yield $100, but workers in his former
occupation are earning $110 because of inflation, the award is under-compensatory.
327
  The nominal interest rate is the rate observed in the money markets. The real interest rate is the
nominal interest rate minus the rate of inflation. See Paul Samuelson, Economics, (New York, 10th edn,
1976), 609.
328
  In theory, the real interest rate and the rate of change in productivity are said to approach an
equilibrium condition in which the two rates are equal. Investors will borrow to invest in productive
enterprises until the return from their investment is equal to the cost of borrowing funds. If the real
interest rate is greater than the productive return from investment, investment will slow until the two
rates become equal. Irving Fisher, The Theory of Interest (New York, 1930), 182–3. Empirically, there
is some question whether this is always the case. In the USA the average productivity rate increased
by 2.57% from 1950 through 1979, close to the estimates of real interest rates viewed by economists.
329
  European Court of Human Rights, Akkus v. Turkey (1997) Reports 1997-IV, 1300.
 Compensation 373

by Article 1 of Protocol No. 1. The applicant was awarded the difference in US dollars,
as she had requested, but according to the Court’s calculation the difference was not the
US$50,000 demanded by the applicant, but US$48. In other Turkish cases, the Court
has awarded damages in UK pounds ‘in view of the high rate of inflation in Turkey’.330
The impact of inflation must be taken into account in cases of procedural delay. In
Estima Jorge v. Portugal,331 the applicant complained that it took thirteen years to execute
a notarial deed providing security for a debt. She asserted that the delay caused her losses
of 2,327,516 escudos (US$12,655) due to inflation over the course of the proceedings,
because in 1981, when she commenced her action, her claim was for 553,800 escudos
and in 1994 she received 772,135 escudos, the amount of the claim plus interest. In fact,
she contended, the amount of 553,800 escudos in 1981 was equivalent to 3,049,651
escudos (US$16,582) in 1994, based on the consumer price index. The government
argued that she was due interest on the claim only and that she had received the full
amount of interest on the debt. The Court awarded 1 million escudos on an equitable
basis, pointing to the very small difference between her 1981 claim and the 1994 award.
The Court also awarded the entire amount of non-pecuniary damages claimed, on the
basis that the hardship of non-repayment caused the applicant anxiety and bouts of
depression. The judgment provoked several dissents, one of which found that the full
amount of inflation should have been awarded as the applicant requested. At the oppo-
site extreme, another dissent suggested that the contractual interest rate of 12 per cent
was due, but that the risk of inflation should have been taken into account when con-
tracting the loan and the state should not be liable for the payment where a bad bargain
was made. While the dissent’s point may be true in general, the applicant did not bargain
for a thirteen-year delay in enforcement of the contract, a delay that the Court found to
be the responsibility of the state. The Court’s judgment appears reasonable on the facts.
In the Inter-American Court, the Honduran judgments on compensatory damages
were the subject of further proceedings due to high levels of inflation in Honduras and
the need to protect the value of the award. The Commission asked that the amount of the
award be indexed, calculated in US dollars as of 20 October 1989, and that it maintain
that same value throughout the life of the trust.332 In agreeing with the Commission,
the Court repeated that compensation due to victims or their families must attempt to
provide restitutio in integrum for the damages caused by the measure or situation that
constituted a violation of human rights:
The desired aim is full restitution for the injury suffered. This is something that is unfortunately
often impossible to achieve, given the irreversible nature of the damages suffered, which is dem-
onstrated in the instant case. Under such circumstances, it is appropriate to fix the payment of
‘fair compensation’ in sufficiently broad terms in order to compensate, to the extent possible for
the loss suffered.333
The Court interpreted its award concerning the establishment of a trust fund ‘under
the most favourable conditions permitted by Honduran banking practice’ to mean
that any act or measure by the trustee must ensure that the amount assigned maintains
its purchasing power and generates sufficient earnings or dividends to increase it. The

330
  See e.g. Mentes and others v. Turkey (Art. 50), supra n. 272, para. 16.
331
  European Court of Human Rights, Estima Jorge v. Velásquez-Rodríguez Portugal (1998) Reports
1998-II, 762.
332
 Inter-American Court of Human Rights, Velásquez-Rodríguez Case (Interpretation of
Compensatory Damages Judgment) (1990) Series C No. 9, 61, para. 20; Godínez-Cruz (Interpretation
of Compensatory Damages Judgment) (1990) Series C No. 10, para. 20.
333
  Ibid, para. 27.
374 The Substance of Redress

trustee has to perform the task ‘as would a good head of family’ with the power and the
duty to select various investments that will achieve the mandate. The decision of the
Court to place the award in a trust fund was precisely because it is an institution that
‘is designed to maintain and increase the real value of the assets’. The Court therefore
rejected the Commission’s request that the government be ordered to disburse additional
sums periodically to maintain the value of the original award for so long as the trust
remains in effect. However, the Court did order the government to pay lost opportunity
costs due to the decline in value of the lempira since the date of judgment. This consti-
tuted a real loss which must be compensated by the government as a result of its failure
to comply with the judgment in the time ordered.

11.8.2  Interest
The award of interest is generally based on what the victim probably would have obtained
if he invested his money during the time he was deprived of it. It is largely for pecuniary
losses and not for bodily injury, emotional distress or injury to reputation. On the other
hand, payment of a sum of money is always subject to monetary instability and it is rare
that a prompt payment of damages will be made at the moment when the right to com-
pensation arises. Roman law recognized that minus solvit, qui tardius solvit.334 A delay in
payment adversely affects the value of the amount of money due, occasioning a loss for
which the creditor must be compensated. Otherwise a further injury occurs. The award
of interest should guarantee that the victim’s assets are restored as closely as possible to
the condition in which they would have been if the harmful act had not taken place.
In national legal systems interest is considered an essential part of the damages owed
for an injury.335 The European Court of Human Rights began, as of 1 January 1996,
awarding default interest when the respondent state does not pay the judgment within
three months. In addition, the Court may award interest on pre-judgment losses under
Article 50.
Very different views exist on whether the interest runs from the date of the loss, the
date the claim is filed, or the date of judgment.336 All interest depends upon a principal
claim; if it does not exist or disappears, the claim for interest is extinguished. Some legal
systems rely on the date of the harmful event or on the date of the occurrence of the
loss, if the dates are different. In contrast, in European Community cases under Article
215(2), the European Court of Justice has consistently held that the obligation to pay
interest arises on the date of the judgment establishing the obligation to make good the
damage.
In the Gritz and Quellmehl cases,337 the European Court of Justice held that, in light
of the principles common to the legal systems of the member states, a claim for interest
on amounts awarded by way of damages is admissible in general. In those cases the Court
ordered that interest at six per cent should be paid as from the date of the judgment, since
the obligation to pay arose on that date. In more recent cases, the Court has applied a rate

334
  ‘Who pays late, pays less’, Digest 50.16.12.1.
335
  In many countries the possibility of awarding interest on damages is provided by statutes, e.g.
France, Code Civil, Art. 1153. The Conseil d’Etat has declared this provision applicable in actions
before the Administrative Courts. See judgment of 21 Mar. 1973, Conseil d’Etat, Soc. CFI Argenson,
Rec. 240.
336
  See A. van Casteren, ‘Article 215(2) and the Question of Interest’, in Ton Heukels and Alison
McDonnell, The Action for Damages in Community Law (1997), 199.
337
  Cases 64, 113/76, 167, 289/78 and 27, 28, 45/79, P. Dumortier Freres SA v. Council [1979] ECR
3091; Case 238/78, Ireks-Arkady GmbH v. Council and Comm’n, [1979] ECR 29 221, 2975.
 Compensation 375

of interest of eight per cent except where the applicant has claimed a lower rate.338 In one
staff case, the Court awarded eight per cent from the date of the administrative complaint
lodged by the applicant.339 In another case, the Court took account of inflation which had
occurred during the eight years since the act which gave rise to the damage.340 The European
Court of Justice underlined that the principle of integral compensation should comprise
the award of interest. Because of the construction of a hypothetical (what would have been
the situation in the absence of the wrongful act), the Court will accept realistic approxima-
tions such as averages and comparisons based on sampling methods customarily used in
economic surveys, provided that the basic facts are sufficiently reliable.

11.8.3  Taxation
Many states exclude compensatory damages from income taxes because they are viewed
as producing no gain; they simply restore the victim to the pre-injury position.341 It
should be noted, however, that if the damages include an amount for lost wages, which
would have been taxable, then taxation may be appropriate. Other theories seek to jus-
tify non-taxability out of compassion for the victim; they consider only the victim and
not the purpose of the recovery. Recoveries for pain and suffering, bodily injury, and
dignitary harm are generally excluded from taxation.

11.9 Conclusions
Compensatory damage awards would be improved and probably greater in amount with
more detailed and better-argued submissions by applicants, with clear reasoning about
why the human rights tribunal should protect the rights of convicted criminals as well as
civil plaintiffs. Applicants have often failed to present detailed claims or legal arguments
to support their demands for compensatory damages. As the burden of cases increases,
international tribunals will increasingly need to rely on the pleadings of litigants before
them. Attorneys representing victims of human rights abuses must be more attentive
to the remedial phase of proceedings to ensure that the outcome affords redress to their
clients. They may refer to the deterrent and sanctioning functions of damage awards,
particularly in light of some of the increasingly serious violations being considered by
the tribunals.
Compensatory damages should be awarded in most cases, although they are not
common in the European system due to the high standard of proof that has been estab-
lished. In the Inter-American system, they are more common and even presumed for
the types of violations that have come before the Court, i.e. loss of life. The amount of
compensation is determined by the ‘American Convention and the applicable principles
of international law’.342 The Court, unlike the European Court of Human Rights, has

338
  See Case C-152/88, Sofrimport v. Commission [1990] ECR I-2477, 2512; see also Mulder and
others v. Council and Comm’n [1992] ECR I-3061, 3135–7.
339
  Case 58/75, Sergy v. Commission [1976] ECR 1139, 1155.
340
  See further van Casteren, supra n. 336.
341
  See D. Cohen-Whelan, ‘From Injury to Income: The Taxation of Punitive Damages “on Account
of ” United States v. Schleier’ (1996) 71 Notre Dame L. Rev. 913; C. Cutler, ‘Taxation of the Proceeds
of Litigation’ (1957) 57 Colum. L. Rev. 470; M. Cochran, ‘Should Personal Injury Damage Awards be
Taxed?’ (1987–8) 38 Case West. Res. L. Rev. 43; E. Yorio, ‘The Taxation of Damges: Tax and Non-Tax
Policy Considerations’ (1977) 62 Cornell L. Rev. 701.
342
  Velásquez-Rodríguez Case (Compensatory Damages), supra n. 99, para. 31.
376 The Substance of Redress

not stated that it has complete discretion in determining the amount of compensa-
tion for actual damages; rather it has stated that it must adhere to international law
in determining the award.343 The Court now consistently repeats that the American
Convention provision applicable to remedies ‘contain[s]‌one of the fundamental prin-
ciples of international law’.
There are serious problems caused by variability of awards in human rights tribunals.
First, fundamental fairness requires that similarly situated parties be treated in a similar
fashion by the legal system. The inability to achieve consistency in awards tends to erode
general confidence in justice and the integrity of the human rights systems. In addition,
highly variable, unpredictable valuations undercut the deterrence function of law. For
the object and purpose of human rights treaties to be achieved, much more attention
should be given to compensatory damages that truly provide redress.

343
  Aloeboetoe Case, supra n. 166, para. 87.
 12
Non-Monetary Remedies

Ubi jus, ibi remedium—Where there is a right, there is a remedy.1 This maxim has long
been part of common law legal systems2 and appears in Roman/Dutch law. The implica-
tion is that courts have an inherent power to devise the appropriate remedy to conclude
cases that come within their jurisdiction. Among the possible remedies are those that
order specific conduct by the wrongdoer, from restitution to negative and mandatory
injunctions.3 These should be the preferred remedies, because damages only substitute
by giving money in the place of a remedy that would specifically undo the wrong;4 in
fact, international law has long viewed restitution as the preferred remedy in the law of
state responsibility5 and it has become part of international human rights law, as well.
Equitable remedial orders developed in common law legal history because the law
courts often did not provide effective redress of legal wrongs.6 The inherent power of
the courts to devise remedies became particularly important in cases of wrongdoing by
government officials. Nearly 300 years ago, in Ashby v. White,7 the English court implied
a damages remedy after the plaintiff claimed that an official had improperly denied him
the right to vote in a parliamentary election. The majority decided that the offence was a
public one and therefore no action should lie, that the case involved a legislative matter
that should be left to Parliament to decide. Moreover, the plaintiff could show no actual
pecuniary loss. Chief Justice Holt dissented, finding that the plaintiff had the right to
vote and that a remedy should be given even though the statute creating the right failed
to specify one:
A right that a man has to give his vote at the election of a person to represent him in Parliament . . . is
a most transcendent thing, and of a high nature . . . The right of voting [is] so great a privilege, that
it is a great injury to deprive the plaintiff of it . . . If the plaintiff has a right, he must of necessity have

1
  Black’s Law Dictionary, (10th edn, Washington, 2014), 1965.
2
  In England, the Chancellor spoke in the name of the King and, on the presentation of a petition or
bill, issued a writ in the name of the King to order the party complained of to appear before the court
to answer the complaint and abide by the order that might be made: Robert N. Leavell, Jean C. Love,
Grant S. Nelson and Candace S. Kovacic-Fleischer, Equitable Remedies, Restitution and Damages, Cases
and Materials, (5th edn, Washington, 1994). The order ran directly in the name of the King, becoming a
direct command to do or refrain from doing certain things. Most of the early Chancery cases concerned
disputes between wealthy and poor, restraining the power of the former: ibid, 4. As part of the com-
mon law it was incorporated into the law of former English colonies. See Paxton’s Case, 1 Quincy 51, 57
(Mass. 1761) (‘[T]‌he Law abhors Right without Remedy’).
3
  An injunction is a remedy in the form of an order directing the defendant to act, or to refrain
from acting in a specified way: D. Dobbs, The Law of Remedies, (2nd edn, Minnesota, 1993), 162–4.
Injunctions that forbid future misconduct are frequently coupled with an award of damages for harm
already done.
4
  See ibid, 210.
5
  Factory at Chorzów Case (Germany v. Poland) (Merits) [1928] PCIJ Series A No. 17; ILC Articles
on State Responsibility (2001).
6
  J. Story, Commentaries on Equity Jurisprudence as Administered in England and America (Boston,
1836), 30–2, 53; W. Holdsworth, A History of English Law, (7th edn, London, 1956), i, 398.
7
  Ashby v. White, 92 Eng. Rep. 126 (K.B. 1703).
378 The Substance of Redress
a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of
it; and indeed it is a vain thing to imagine a right without a remedy.8
Holt also indicated the judicial reasoning linking the right and the remedy: ‘[w]‌here
a man has but one remedy to come at his right, if he loses that he loses his right’.9 On
appeal, Chief Justice Holt’s dissenting opinion was accepted by the House of Lords and
judgment was entered for the plaintiff.10
In a seminal article on public law adjudication in the United States,11 Professor Abe
Chayes observed that many remedies for rights violations are necessarily equitable and
prospective because they do not involve a closed set of events. Specific decrees are partic-
ularly important where the harm may continue or be repeated. US courts have become
‘creator and manager of complex forms of on-going relief ’ due to repetitive violations.12
An order for specific conduct does more than eliminate the present unlawful conditions.
It denies to the wrongdoer the ability to pay damages and continue to do harm. It also
obviates the need for victims to have the will and financial resources to initiate repeated
litigation for declaratory judgments or damages and thus reduces the plaintiff’s risk that
the remedy will turn out to be ineffective.13
In general, then, it may be argued that remedial orders are a better approach than
compensation to individuals. Rather than place money in individual hands, such
non-monetary orders redress the harm and implement broad social benefits that can
effectuate a comprehensive remedy.14 Injunctions are not more intrusive than ordering
governments to pay money and are probably more effective. Finally, deterrence is an
important factor favouring non-monetary remedies. As the US Supreme Court noted,
‘[t]‌he Constitution promises that government will not inflict certain injuries, not that it
must purchase the right to inflict them’.15
Among the various types of public litigation, human rights cases may be consid-
ered particularly appropriate ones for affording non-monetary relief. First, the govern-
ment may not be responsive to less intrusive measures, such as an award of damages.16

8
  92 Eng. Rep. 135–7 (Holt, C.J. dissenting). 9
 Ibid, 136.
10
  Ibid, 138. See also Rowning v. Goodchild, 96 Eng. Rep. 536 (K.B. 1773); Anonymous, 87 Eng.
Rep. 791 (Q.B. 1703); Turner v. Sterling, 86 Eng. Rep. 287, 289 (K.B. 1683); North v. Musgrave, 82
Eng. Rep. 410 (K.B. 1639).
11
  A. Chayes, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harv. L. Rev. 1281, 1292.
12
  Ibid, 1284. In 1984, 600 school districts, prisons in thirty states and some 270 local jails were
under federal judicial orders. Robert F. Nagel, ‘Controlling the Structural Injunction’ (1974) 7 Harv.
J. L. & Pub. Pol’y 395, 396. Frank M. Coffin also contrasts conventional adjudication and institutional
remedial litigation. The predominant areas into which courts have been thrust are public education,
jails, mental institutions, and police departments. The issues involve substantive rights and the means
of compelling a public body to effectuate those rights. Remedies sought may be intended more to affect
the future than the past and their impact is much more widespread: Frank M. Coffin, ‘The Frontier
of Remedies: A Call for Exploration’ (1979) 67 Cal. L. Rev. 983. See also Daan Braveman, Protecting
Constitutional Freedoms: A Role for Federal Courts (Westport, CT, 1989).
13
  P. Gewirtz, ‘Remedies and Resistance’ (1983) 92 Yale L.J. 585, 597–8. In Hutto v. Finney, 437 U.S.
678 (1978), the court issued a comprehensive order to insure against the risk of inadequate compliance,
based on a ‘long and unhappy history’ of non-compliance with prior orders to meet constitutional
standards in the Arkansas prison system. On 1 January 1990, eight states and Puerto Rico were oper-
ating prison systems under court order or consent decree resulting from litigation over unconstitu-
tional conditions: National Prison Project, Status Report: The Courts and Prisons (1990). See also Susan
P. Sturm, ‘A Normative Theory of Public Law Remedies’ (1991) 79 Geo. L.J. 1357.
14
  Christina Whitman argues that preference should be given to equitable remedies because ‘money
judgments often disrupt local government to a greater degree than the returns in the vindication of con-
stitutional rights can justify’: Christina Whitman, ‘Constitutional Torts’ (1980) 79 Mich. L. Rev. 5, 42.
15
  Owen v. City of Independence, 445 U.S. 622 (1980), 650–1.
16
  National courts that issue remedial orders can go beyond what is required to restore the plaintiff’s
rightful position if there is a demonstrated risk that the defendants will not comply with a narrower
 Non-Monetary Remedies 379

Second, it may be impossible to estimate damages because of uncertainty or because of

the unique character of what was lost. Damages are especially inadequate when the vic-
tim can show no economic loss from the violation of her right17 and where the violation
causes irreparable injury. Also, the violations may be ongoing or likely to be repeated,
and repetition is neither legally nor morally acceptable. With damage awards, the gov-
ernment can continue to violate rights as long as it is willing to pay, a result observed in
several member states of the Council of Europe.
In many cases, then, the main remedial decision that has to be taken is whether to
vindicate a right with money or seek to assure its enjoyment through specific orders.
Orders do not allow the wrongful conduct to continue or be repeated. While money is
an acceptable substitute for many recognized interests, it is not adequate to allow the
wrongdoer simply to pay for the injury if the claim is of great importance. While some
legal systems disfavour orders because of their intrusion on freedom of action and the
discretion of the party subject to the order,18 this reluctance comes at the cost of the vic-
tim’s rights. Nonetheless, there are disadvantages to non-monetary awards that must be
recognized, because many injunctions require continuing and costly supervision by the
court, and some injunctions impose costs on third parties.

12.1  State Practice

In current domestic state practice, non-monetary reparations are widely used, because
money as a substitute for the exercise of guaranteed human rights is problematic, lead-
ing many victims and their representatives to seek other remedies. Many legal systems
allow courts to issue specific orders of restitution19 or require acts by the wrongdoer to
repair the harm caused.20 Some of these measures could equally be labelled as restitution,
satisfaction or guarantees of non-repetition. In some Asian countries, acknowledgment
of wrongdoing, coupled with an apology, is particularly important in eliminating the
wrong and guaranteeing non-repetition.21
Other non-monetary orders may call for measures of rehabilitation or punishment of
the wrongdoers.22 In Sebastian M. Hongray v. Union of India23 the Indian Supreme Court
issued a mandamus to the Superintendent of Police directing him to take the judgment
of the court ‘as information of cognizable offense and to commence investigation as

order. See Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (enjoining punitive
isolation of prisoners for longer than thirty days).
17
 Consider Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967) where the black minority was unable
to prove that the outcome of the election would have been different if the authorities had conducted a
racially neutral election in conformity with constitutional requirements. The court ordered another elec-
tion because such practices infect the processes of the law and diminish the interests of all: ibid, 665 (emphasis
added).
18
  The United States Supreme Court has shown concern for the rights of the states in the federal
system and the consequent limitations on its equity power. Like international tribunals, it has relied on
‘the well-established rule that the Government has traditionally been granted the widest latitude in the
dispatch of its own internal affairs’.
19
  E.g. the Expropriated Properties Act of Uganda, Act No. 9 of 1982.
20
  E.g. in Israel, the Civil Wrongs Ordinance, s. 76(1) provides that ‘[c]‌ompensation may be awarded
either alone, or in addition to, or in substitution for, an injunction’: quoted in I. Gilead, ‘Tort Law’ in
I. Zamir and S. Colombo (eds.), The Law of Israel: General Surveys (Jerusalem, 1995).
21
  See E/CN.4/Sub.2/1997, 5.
22
  As discussed in Chapter 4, remedial orders to investigate, prosecute and punish offenders can be
considered as a form of satisfaction or as a guarantee of non-repetition.
23
  Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026.
380 The Substance of Redress

prescribed by the relevant provisions of the Code of Criminal Procedure’.24 The Supreme
Court has also insisted in several cases that provision be made for training and education,
medical care, employment programs, and other related measures of assistance to victims
of official misconduct.25
As the cases from India illustrate, courts in common law countries may order
non-monetary remedies with or without statutory authority. In the United States case
of Bell v. Southwell,26 after almost all African American voters were excluded from an
election, the court ordered a new election because it said it could not be presumed
that the African American candidate who lost would have lost an election untainted
by racial discrimination. Additionally, ‘state-imposed racial discrimination cannot be
tolerated and to eliminate the practice or the temptation toward it, the law must extin-
guish the judgment wrought by such a procedure’.27 In Rizzo v. Goode,28 the United
States Supreme Court directed the drafting of a comprehensive program for dealing with
complaints about illegal and unconstitutional mistreatment by police officers and in
Newman v. Alabama,29 the court held that an order to ensure reasonably adequate food,
clothing, shelter, sanitation, necessary medical attention, and personal safety of prison-
ers is within the sound discretion of the judiciary.
Courts in many countries are increasingly finding lawsuits seeking to remedy viola-
tions of economic, social, and cultural rights justiciable and they are devising innovative
non-monetary remedies while also honouring the respective roles of the judiciary and
the legislature. In Belgium, the Court of Arbitration recognized the right of everyone
to a minimum supply of drinking water, relying on Article 23 of the Constitution.30 In
India, the Supreme Court held that the fundamental right to life contained in Article 21
of the Constitution includes the right to pollution-free water. In a series of cases based
on the right to health, Argentine courts have ordered the government and water service
providers to supply a minimum amount of water (between 50 to 100 litres per person
per day) regardless of the ability to pay.31
The South African Constitutional Court judgment in Minister of Health et al. v.
Treatment Action Campaign32 held that socio-economic rights are clearly justiciable and
that the government’s measures to provide access to health care services for HIV-positive
mothers and their newborn babies fell short of the Constitutionally-required conduct.
The Court determined that the state’s obligation is to choose among a wide range of

24
  See, generally, U. Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court
of India’, in Baxi (ed.), Law and Poverty (Bombay, 1988), 387–415.
25
 In Basu v. State of West Bengal [1997] 2 LRC 1, the finding that the government was liable for two
custodial deaths was accompanied by orders directing that police badges with names be worn by all
arresting and interrogating police officers; that a memorandum of arrest should be served on the family
member of the person arrested; that a member of the family or friend should be informed of the venue of
custody; and that the detainee should be medically examined every forty-eight hours during detention.
See also U. Baxi, in Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of
Gross Violations of Human Rights and Fundamental Freedoms (SIM Special Pub. No.12).
26
  Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967). 27
 Ibid, 663.
28
  Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).
29
  Newman v. Alabama, 559 F.2d 283, rev’d in part on other grounds, 438 U.S. 781 (1978).
30
  Arrêt no. 36/98, 1 April 1998, Commune de Wemmel, Moniteur belge, 24 Apr. 1998.
31
  Menores Comunidad Paynemil s/accion de amparo, Expte, 311/CA-1997. Sala II. Camara de
Apelaciones en lo Civil, Neuquen, 19 May 1997; Valentina Norte Colony, Defensoria de Menores No. 3 c/
Poder Ejecutivo Municipal s/accion de amparo, Expte, 46/99, Acuerdo 5 del Tribunal Superior de Justicia.
Neuquen, 2 March 1999; Quevedo Miguel Angel y otros c/Aguas Cordobesas S.A. Amparo, Cordoba City,
Juez Sustitua de Primera Instancia y 50 Nominacion en lo Civil 7 Comercial de la Ciudad de Cordoba,
8 Apr. 2002.
32
  (2002) 5 SA 721 (CC).
 Non-Monetary Remedies 381

possible measures those that are reasonable in order to implement the constitutional
guarantees. The court itself did not make the choice among alternative public policies,
that being a legislative function. As for the judicial function:
the Constitution contemplates rather a restrained and focused role for the courts, namely, to
require the state to take measures to meet its constitutional obligations and to subject the reasona-
bleness of these measures to evaluation. Such determinations of reasonableness may in fact have
budgetary implications, but are not in themselves directed at rearranging budgets. In this way, the
judicial, legislative and executive functions achieve appropriate constitutional balance.33
The government argued strongly that even if the Constitutional Court found the gov-
ernment’s policy to be unreasonable, its power was limited to making a declaratory judg-
ment to that effect. The court disagreed: ‘Where state policy is challenged as inconsistent
with the Constitution, courts have to consider whether in formulating and implement-
ing such policy the state has given effect to its constitutional obligations’.34 The court
refused to accept that it should make a distinction between declaratory and mandatory
orders, finding that the constitution empowered it to grant ‘appropriate relief ’. In the
event, it found a violation of the Bill of Rights. The court affirmed its ‘wide powers’ to
‘make any order that is just and equitable’.35 Moreover, the power to grant mandatory
relief was held to include the power, where it is appropriate, to exercise some form of
supervisory jurisdiction to ensure that a court’s order is implemented.36 Assessing the
evidence and finding a violation of the state’s constitutional obligations, the court issued
several remedial orders:
(1) The government must devise and implement within its available resources a
comprehensive and coordinated program to realize progressively the rights of
pregnant women and their newborn children to have access to health services to
combat mother-to-child transmission of HIV
(2) The program must include reasonable measures for counselling and testing preg-
nant women for HIV, counselling HIV-positive pregnant women on the options
open to them to reduce the risk of mother-to-child transmission of HIV, and
making appropriate treatment available to them for such purposes
(3) The government without delay must remove restrictions that prevent nevirapine
from being made available for the purpose of reducing the risk of mother-to-child
transmission of HIV at public hospitals and clinics that are not research and
training sites
(4) The government must permit and facilitate the use of nevirapine for the pur-
pose of reducing the risk of mother-to-child transmission of HIV and make it
available for this purpose at hospitals and clinics when the relevant medical staff
considers it is medically indicated
(5) The government must make provision for counsellors based at public hospitals
and clinics to be trained to counsel on the use of nevirapine
(6) The government must take reasonable measures to extend the testing and coun-
selling facilities throughout the public health sector.

33
  Ibid, para. 38. 34
  Ibid, para. 99.
35
  Ibid, para. 101, quoting section 172(1)(b) of the constitution.
36
  The court reviewed the remedial jurisprudence of other states in supporting its judgment, includ-
ing decisions from the United States, Germany, Canada, India, and the United Kingdom.
382 The Substance of Redress

The court made clear that the government could adapt its policy in a manner consist-
ent with the constitution if equally appropriate or better methods of treatment became
available.
Among the most widely accepted orders is the issuance of a writ of habeas corpus.37
The writ of habeas corpus protects individuals against arbitrary and wrongful imprison-
ment or confinement. It has been viewed as the ‘great writ of liberty’.38 A common law
right to habeas corpus exists in many states; in others it is provided by statute or consti-
tutional provision. Many Latin American countries recognize amparo, a broader remedy
than habeas corpus whereby individuals who are deprived of or threatened with depriva-
tion of constitutional rights may seek redress from the judiciary. The Constitution of
Paraguay, for example, provides that any person harmed, or threatened with immediate
harm, as a result of a manifestly unlawful act or omission by an authority or private
individual in regard to constitutional or other legal rights and guarantees may submit
an application for amparo to a judge. The judge is entitled to safeguard the right or
guarantee or immediately rectify the situation in law.39 Habeas corpus and amparo are
particularly important remedies when evidence is in the hands of the state. In some cases
the court may shift the burden of proof to the government in these proceedings.40
Symbolic reparations are also important and have been a significant part of recent
investigatory or judicial responses to widespread violations. In Chile, the govern-
ment established the ‘Memorial Foundation for Disappeared Detainees and Victims
of Political Executions’ in response to a request from the Group of Relatives of
Disappeared Detainees and the Group of Relatives of Victims of Political Executions.41
The Foundation was responsible for the construction of a plaza and a mausoleum in the
general cemetery of the City of Santiago intended to preserve the historical memory and
bury the remains of victims. The plaza, completed in March 1994, contains a marble
plaque engraved with the names of disappeared detainees and victims of political execu-
tions included in the report of the Chilean national truth commission.42
The United Nations Commission on El Salvador recommended symbolic repara-
tions to redress the violations it investigated: the construction of a national monument
bearing the names of all the victims of the conflict; recognition of the good name of
the victims and of the serious crimes of which they were victims; and the institution
of a national holiday in memory of the victims of the conflict and to serve as a symbol
of national reconciliation.
In central and eastern Europe, rehabilitation, including restitution of confiscated
property, lost jobs and pensions and other lost benefits, has also been a focus. In the
Czech Republic, the government instituted widespread rehabilitation of persons unlaw-
fully sentenced and otherwise persecuted under the Communist regime.43 Various crim-
inal provisions were declared illegal on the grounds of inconsistency with the principles
of a democratic society. All judgments pronounced between 25 February 1948 and

37
  See W. Duker, A Constitutional History of Habeas Corpus (Westport, 1980).
38
 Ibid, 3.
39
  Constitution of Paraguay, Art. 133, quoted in Report to the United Nations on Human Rights in
Paraguay, HRI/CORE/1/Add.24.
40
 See Sebastian M. Hongray v. Union of India, supra n. 23.
41
  Supreme Decree 294 of 13 Mar. 1991 of the Ministry of Justice.
42
  The government also instituted programs of rehabilitation and reintegration. It created an autono-
mous National Office for Return to develop programs for the reintegration of exiled Chileans return-
ing to the country. Act No. 18.994, Diario Oficial of 28 Aug. 1990. The Office validated professional
qualifications obtained abroad and helped provide papers for free medical care and housing allowances.
See Act No. 19.128, Diario Oficial of 7 Feb. 1992; Act No. 19.074, Diario Oficial of 28 Aug. 1991.
43
  Laws No. 119/1990 on judicial rehabilitations, as amended by Law No. 47/1991 and 633/1992.
 Non-Monetary Remedies 383

1 January 1990, based on these offences, were annulled directly by virtue of the law. All
persons so sentenced could apply for review and rehabilitation.
The South African redress and reconciliation policies44 included proposals for
‘Restoration of Dignity through Symbolic Reparations’ through local, provincial and
national measures such as:
(a) The erection of tombstones and cenotaphs
(b) Exhumation and reburial
(c) Visits to the graves of victims
(d) Issuing of death certificates for the unknown dead and disappeared
(e) Culturally appropriate ceremonies for the unknown dead and disappeared
(f ) Restoration of the good name of individuals
(g) Monuments, memorials, museums, archives, peace parks, etc.
(h) A National Day of Remembrance and Reconciliation, and
(i) Changes in educational curricula at all levels to teach the true history of South
Africa and an awareness of human rights.
Symbolic measures, rehabilitation, and restoration of reputation are important
aspects of reconciliation and healing when gross and systematic violations have been
committed. They help restore the dignity of the victims and tangibly acknowledge their
suffering, but are usually not enough on their own to fulfil the reparations obligations
of the government.

12.2  International Human Rights Tribunals

Opinion is divided on the ability of international decision-makers to issue non-monetary
remedial orders. Reitzer argues that jurisprudence demonstrates the principle of the
complete freedom of the judge or arbitrator, that there are no rules for reparations.45
Arangio-Ruiz46 posits that satisfaction is ‘closely interrelated and frequently confused
with the guarantees of non-repetition’47 and in serious cases could include ‘demands
of abrogation of discriminatory, racial or segregational legislation, popular consulta-
tions such as free elections or plebiscites, restoration of fundamental rights and free-
doms, etc’.48 Personnaz finds that it is impossible for an international tribunal to annul
a national act but he sees satisfaction as separate from compensation or punishment,
designed to address irreparable injury.49 Moral injury can be repaired symbolically as well
as by money. Personnaz also notes that measures of satisfaction in practice include action
taken against the wrongdoer.
The kind of non-monetary remedies a human rights tribunal might award flows from
the nature of the violation. Orders may be reparative, such as restitution or requiring the
defendant to restore the plaintiff to a pre-existing entitlement. Preventive injunctions

44
 See Commission of Truth and Reconciliation (South Africa) 1995-2002, Promotion of National
Unity and Reconciliation Act No. 34 (1995).
45
  L. Reitzer, La reparation comme conséquence de l’acte illicite en droit international (1938).
46
 Rapporteur, Seventh Report on State Responsibility, UN Doc. A/CN.4/469, 9 May 1995.
47
  Ibid, 11, para. 29. 48
  Ibid, 13, para. 32.
49
  Thus, satisfaction appears ‘a la suite d’un acte sur lequel il est impossible de revenir, d’une offense
irréparable et constitue plutôt une mesure destinée a apaiser le sentiment de l’Etat lésé par ce fait’.
J. Personnaz, La reparation du préjudice en droit international (Paris, 1938), 298.
384 The Substance of Redress

aim to prevent the loss of an entitlement and are used where there is a threat of future
commission of a wrong. Repetitive wrongdoing may require preventive orders. Professor
Owen Fiss has argued that there is a third type of injunction, the structural injunction
that attempts to remodel an existing social or political institution to bring it into con-
formity with legal requirements: for example, restructuring a school system to facilitate
equality of educational opportunity, or restructuring a prison to eliminate cruel and
inhuman punishments.50 Such ongoing violations may involve social conditions, behav-
ioural patterns and organizational dynamics that prevent the wrongdoers from comply-
ing with a general directive to cease violating the law. In such cases, an international
judicial organ may leave it to the individual state concerned, devise a specific affirmative
order, or rely on the international political organs to take action.
In practice, there is nothing unusual about remedial orders issued by international
tribunals. Restitution is often cited as the preferred remedy and called for explicitly.
Human rights bodies sometimes issue other specific orders or recommendations to states
as well. The Human Rights Committee, for example, if it finds a violation on the merits
of a complaint under the Optional Protocol, adds what in its opinion should follow. It
will indicate to the state in question, in a separate conclusion, that it has not only a duty
to provide individual reparation but also to take preventive measures for the future.51
The power to award non-monetary remedies may be an inherent judicial power, but
some treaty provisions implicitly or explicitly provide for it. The explanatory notes to the
Protocol to the African Charter on the Establishment of an African Court on Human
and Peoples’ Rights52 make it clear that its Article 25 ‘ensures the competence of the
Court to pronounce upon the violation of human rights and to order the violation to be
remedied’.53 In its second merits judgment, the African Court found that the defama-
tion laws of Burkina Faso violated the right to freedom of expression and unanimously
ordered the state to amend the laws to remove the penalty of imprisonment and adapt
the legislation to ensure that other sanctions for defamation comply with the require-
ments of necessity and proportionality.54 The Court may also order the payment of com-
pensation to the victim and Article 27 allows the victim to enforce the compensation
part of the judgment in national courts and provides a follow-up mechanism.55
The European and Inter-American Courts have both inherent and treaty-based
power to award non-monetary remedies. In the past, the European Court interpreted
its powers to afford ‘just satisfaction’ narrowly, although the term satisfaction in interna-
tional practice has never been restricted to monetary compensation. The drafting history
of the European Convention indicates only the intention that the Court have no power
to annul directly a national act. Short of that, the Court could indicate that the appropri-
ate redress is for the state itself to perform the annulment.56

50
  Owen Fiss, The Civil Rights Injunction (Bloomington, 1978).
51
  ‘This is now a settled interpretation of its role’: T. Opsahl, ‘The Human Rights Committee’, in
P. Alston, The United Nations and Human Rights: A Critical Appraisal (Oxford, 1992), 427.
52
  OAU, 6–12 Sept. 1995. 53
 Ibid, 7.
54
  African Court of Human and Peoples’ Rights, Affaire Lohé Issa Konaté c. Butrkina Faso, Requête
No. 004/2013 (5 Dec. 2014). The Court also ordered the state to submit a report within a reasonable
time period, not to exceed two years, on the measures taken to comply with the judgment. The issue of
compensation and other reparations for the applicant was reserved for a subsequent phase.
55
 Ibid, 8.
56
  The Court has decided, however, that it is not empowered to order a state to alter its legisla-
tion. See: European Court of Human Rights, Lundevall v. Sweden (2002) Application No. 38629/97,
para. 44. For a discussion of cases concerning reopening of domestic criminal proceedings, suggesting
some shift in the Court’s views, see: Philip Leach, ‘No longer offering fine mantras to a parched child?
The European Court’s developing approach to remedies’, in Andreas Follesdal et al. (eds.) Constituting
 Non-Monetary Remedies 385

Whatever other limitations on redress may have derived from the early framework
and structure of the European system, the entry into force of Protocol 11 arguably
removed them by enhancing the juridical status of the applicant and the purpose of
proceedings. In the Vagrancy cases, the lack of standing of the applicant was viewed as
a sufficient reason for limiting remedies under Article 50 (now 41) and distinguishing
the authority of the European Court from that of other international tribunals. In his
separate opinion, Judge Mosler noted:
Although the duty to make good the damage resulting from an injury which has been established
by the decision of an international court derives from general international law, it was felt neces-
sary to confer expressly upon the Court, by a clause in the European Convention on Human
Rights, jurisdiction to grant satisfaction to the person injured. Since the applicant is not a party to
the proceedings before the Court, the object of those proceedings, strictly speaking, is not the damage suf-
fered by him but the violation of the Convention alleged against the respondent state.57
Protocol 11 now makes the individual an initiating party to the proceedings and a direct
focus or object of the case. The Court therefore could rely upon the inherent powers of
international tribunals referred to by Judge Mosler to afford adequate remedies to the
injured party before it, including in appropriate non-monetary forms.
Until very recently, however, the European Court rejected every request for
non-monetary relief.58 First, in Le Compte, Van Leuven and De Meyere59 the Court held
that it was not empowered under the Convention to direct the Belgian state to annul
the disciplinary sanctions imposed on the three applicants and the criminal sentences
passed on one of them.60 In Campbell and Cosans, Mrs Campbell sought an undertaking
that her children would not be subjected to any form of corporal punishment at public
schools in the United Kingdom. The Court refused the request, stating that its judg-
ments ‘leave to the Contracting State concerned the choice of the means to be utilized
in its domestic legal system for the performance of its obligation under Article 53’.61 The
Court therefore concluded it lacked the power to make the order.62 In Gillow v. United
Kingdom, the applicants sought a judgment directing the government to restore their
residence qualifications in Guernsey. The Court refused to issue the order.63
In some cases, monetary compensation may be able to substitute, at least in part,
for the losses. In Vasilescu v. Romania, Judgment of 22 May 1998, for example, the
101-year-old applicant asked for the return of 327 gold coins, property wrongfully
taken by the government. The Court agreed that return of the coins would be the most

Europe:  The European Court in a National, European and Global Context (Cambridge, 2013), 142,
152–157.
57
  European Court of Human Rights, De Wilde, Ooms and Versyp v. Belgium (the Vagrancy cases) (Art.
50) (1972) Series A No. 14, sep. op. Judge Mosler, para. 3 (emphasis added).
58
  See: Valerio Colandrea, ‘On the Power of the European Court of Human Rights to Order Specific
Non-monetary Measures: Some Remarks in Light of the Assanidze, Broniowski and Sejdovic Cases,
(2007) 7 Human Rights Law Review 396–411.
59
  European Court of Human Rights, Le Compte, Van Leuven and De Meyere v. Belgium (1982) Series
A No. 54.
60
  Ibid, 7, para. 13. There was also a causality problem, in that the sanctions imposed were not seen
as ‘caused’ by the breach of Art. 6(1).
61
  European Court of Human Rights, Campbell and Cosans v. United Kingdom (Art. 50) (1983)
Series A No. 60, 9, para. 16.
62
  Ibid, citing European Court of Human Rights, Marckx v. Belgium (1979) Series A No. 31, 25,
para. 58 and Dudgeon v. United Kingdom (Art. 50) (1983) Series A No. 59, 8, para. 15.
63
  Requests for orders were also submitted in Dudgeon v. United Kingdom, supra n. 62; X. v. United
Kingdom (Art. 50) (1982) Series A No. 55, 4 EHRR 188; F. v. Switzerland (1987) Series A No. 128; and
Demicoli v. Malta (1991) Series A No. 210.
386 The Substance of Redress

appropriate remedy, but accepted the government’s assertion that they could not be
found and awarded pecuniary damages and non-pecuniary damages, in amounts about
one-half of what the victim asked. In other types of cases, compensation is clearly inad-
equate and inappropriate to remedy the harm. In cases against Turkey, applicants have
sought to obtain various types of non-monetary relief from the Court for village burn-
ings, given their widespread and frequent occurrence.64 In Guerra and others v. Italy,65
the applicants sought and received compensation for environmental damage to their
homes. They also sought, however, an order requiring the government to decontaminate
the entire industrial estate, carry out an epidemiological study of the area and the local
population, and undertake an inquiry to identify the possible serious effects on the resi-
dents most exposed to substances believed to be carcinogenic. The Commission agreed
and said a thorough and efficient inquiry should be done and a full accurate report
published, including the harm actually caused to the environment and people’s health.
The Court refused to issue the order, noting ‘that the Convention does not empower it to
accede to such a request. It reiterates that it is for the State to choose the means to be used
in its domestic legal system in order to comply with the provisions of the Convention or
to redress the situation that has given rise to the violation of the Convention’.66
The issue of non-monetary remedies has become more problematic as the European
Court has developed its new jurisprudence relying on Article 46 to recommend indi-
vidual and general measures. In theory, individual measures provide redress to the victim
bringing the case, while general measures are intended to make the modifications neces-
sary to prevent further violations of the same type. In general, the Court considers itself
competent to afford compensation as an individual measure, but general measures are
within the jurisdiction of the Committee of Ministers. The practice direction on just
satisfaction claims issued on 28 March 2007, however, does not mention individual
measures the victim may be offered in order to redress his/her damage, other than com-
pensation as just satisfaction, nor does it discuss general measures.67
Given its powers, the Court could indicate the obligation for the State to take indi-
vidual and general measures in addition to the payment of just satisfaction, even if it
declines to specify the exact measures required. Instead, the Court usually says noth-
ing, from which a state may infer, wrongly, that no measure other than payment of any
compensation specified by the Court is required. This could leave a victim wrongfully
convicted of a crime, for example, with money but also with an unwarranted and unjust
criminal record.68 Indicating additional appropriate redress measures would not only

64
  See e.g. European Court of Human Rights, Akdivar v. Turkey, 1998-II (No. 69), Reports 711;
Mentes v. Turkey (Art. 50) (1998) ECtHR Reports 1998-IV (No. 80) (Judgment of 24 July 1998), 1686
and Selçuk v.Turkey, ECtHR Reports (No. 71) 1998-II 891, (1998) 26 EHRR 477.
65
  European Court of Human Rights, Guerra and others v. Italy, 1998-I (No. 64), ECtHR Reports 210.
66
  Ibid, 230, para. 74, citing European Court of Human Rights, Zanghi v. Italy (1991) Series A No.
194C, Demicoli v. Malta, supra n. 63, and Yagçi and Sargin v. Turkey (1995) Series A No. 319A.
67
  President of the ECtHR, Practice Direction: Just Satisfaction Claims, available at http://www.
echr.coe.int/Documents/PD_satisfaction_claims_ENG.pdf (last visited 31 January 2014), 1, para. 2
[President of the ECtHR, Practice Direction].
68
  Notably, in recent Article 6 cases, the European court has suggested that reopening of proceedings
is ‘the most appropriate form of redress’ finding that ‘by its very nature’ the violation leaves no real choice
on how to put an end to the violation. This may also reflect the growing acceptance of Judge Zupancic’s
view expressed in his separate opinion in Broniowski v. Poland that ‘it would be absurd if the Court were
to afford “just satisfaction to the injured party” and then sub rosa acquiesce to the continuation of the
status quo which the offending state would not be obliged . . . to remedy in its essential aspects’. Gencel
v. Turkey (2003) Application No. 53431/99; Tahir Duran v. Turkey (2004) Application No. 40997/98;
Somoggyi v. Italy; Sejdovic v. Italy (2004) ECtHR 2004-IV 103; Ocalan v. Turkey (2003) Application No.
46221/99; Kounov v. Bulgaria (2006) Application No. 24379/02.
 Non-Monetary Remedies 387

benefit the state and the victim, but would help the Committee of Ministers to supervise
the implementation of the judgment.69 The Court certainly could recommend gen-
eral measures to the Committee of Ministers, such as the appropriateness of apologies,
memorials or rehabilitative measures.
The Court has moved towards such indications, but only in cases where it finds a
systematic practice of violations, leading to a large number of repetitive cases involving
the most serious violations. The Court’s practice in this respect is exemplified by the
2012 judgment in Aslakhanova and Others v. Russia. Referring to the Court’s ‘numerous
previous findings about the lack of proper investigations into the allegations of disap-
pearances’, the Court said it was ‘necessary to determine the consequences which may
be drawn from Article 46 of the Convention for the respondent State’.70 The Court
then reiterated that Article 46 of the Convention, as interpreted in the light of Article 1,
imposes on the respondent state a legal obligation to implement, under the supervision
of the Committee of Ministers, appropriate general and/or individual measures to secure
the right of the applicant which the Court found to be violated.71 Although the Court
repeated that, ‘in principle’, it is not its role to determine what measures of redress may
be appropriate, it added that the Court is nonetheless concerned ‘to facilitate the rapid
and effective suppression of a shortcoming found in the national system of protection of
human rights’.72 This is most important when the accumulation of sufficiently numer-
ous and inter-connected identical breaches are found to constitute not merely isolated
incidents or exceptions but systemic violations. Such breaches reflect a continuing situ-
ation and a practice that is incompatible with the Convention.
In its judgment, the Court identified the particular kinds of remedies the state must
afford in cases concerning deprivations of life and disappearances. Article 2 of the
Convention requires states to conduct an effective investigation capable of leading to
the identification and punishment of those responsible for these violations; an appli-
cant’s victim status cannot be remedied by merely awarding damages. This obligation
persists as long as the fate of the person is unaccounted for. In addition, Article 3 of the
Convention requires the respondent state ‘to exhibit a compassionate and respectful
approach to the anxiety of the relatives of the deceased or disappeared person and to
assist the relatives in obtaining information and uncovering relevant facts’.
The Court found that the situation in the Russian case had to be characterized as
resulting from systemic problems at the national level, for which there is no effective
domestic remedy, affecting core human rights and requiring the prompt implementation

69
  This opinion is shared by Judge Fura-Sandström: ‘Looking at the case at hand, I would make
the following observations. The applicant claimed the amount of 57,408 euro for pecuniary dam-
age in respect of medical fees, loss of earnings, hormone treatment and the cost of the eventual com-
pletion of gender reassignment surgery abroad . . . The applicant further alleged that, even if the legal
gaps in Lithuanian law were eventually filled, there would still be no prospect of completing the gen-
der reassignment surgery in Lithuania within a reasonable time’: Partly Dissenting Opinion of Judge
Fura-Sandström, European Court of Human Rights, L. v. Lithuania (2007) Application No. 27527/03.
She opposed the recommendation made by the Court to the state to pass such legislation. ‘For these
reasons I would have preferred the Court simply to order a payment in respect of pecuniary damage, and
only as a secondary measure to indicate the need to pass new legislation’: ibid, 19.
70
  European Court of Human Rights, Aslakhanova and Others v. Russia (2012) Application No.
2944/06, para. 258.
71
  Ibid, para. 210, citing European Court of Human Rights, Scozzari and Giunta v.  Italy [GC]
(2000), ECtHR 2000-VIII, para. 249; Christine Goodwin v. the United Kingdom [GC] (2002) ECtHR
2002-VI, para. 120; Lukenda v. Slovenia (2005) ECtHR 2005-X, para. 94; S. and Marper v. the United
Kingdom [GC] (2008) Application No. 30562/04, para. 134; and M. and Others v. Bulgaria (2011)
Application No. 41416/08, para. 136, (Judgment of 26 July 2011).
72
  Ibid, para. 211.
388 The Substance of Redress

of comprehensive and complex measures. Given the scope and nature of the problems
involved, the Court deemed that it was not in a position to order the exact general and
individual measures to be implemented by Russia in order to comply with the judgment,
nor was it necessary to set a time limit for the implementation of any such measures.
Nevertheless, the Court felt compelled to provide ‘some guidance’ on certain measures
that must be taken, as a matter of urgency, by the Russian authorities to address the issue
of the systemic failure to investigate disappearances in the Northern Caucasus, in order
to put an end to the continued suffering of the relatives of the disappeared persons,
conducting effective investigations into the cases of abduction, unlawful detention and
disappearance allegedly committed by servicemen, and ensuring that the families of the
victims are awarded adequate redress.73 The Court then proceeded to do what it said it
was not doing and detail a series of measures to be taken on behalf of the families of the
disappeared, which were necessary to develop an effective investigation. This discussion
was completely separate from the Court’s ruling on just satisfaction under Article 41,
wherein the Court awarded significant amounts of pecuniary and non-pecuniary dam-
ages. The case and similar ones represent a welcome advance in the Court’s jurisprudence
in adjudicating cases of gross and systematic violations.
In the African system, apart from restitution, the Commission has issued numer-
ous non-monetary remedial recommendations for detainees, including that persons
detained be permitted access to family members and legal representatives74 and that the
government cease transferring accused persons from one part of the country to another.75
In other types of case, the Commission has directed that a complainant be recognized as
a citizen,76 property rights be restored,77 adequate medical and material care be provided
to persons suffering from mental health problems,78 a press ban be lifted,79 respect for
the principle of non-discrimination be ensured,80 and that national projects be allocated
equitably throughout the country.81
In relation to legislative and administrative measures, the Commission has recom-
mended: abolition of the penalty of lashes;82 amendment of legislation to ensure de jure
protection of freedom of expression, assembly, association and movement;83 adoption

73
  Ibid, paras. 216–221.
74
  See Comm. 275/2003 Article 19 v. The State of Eritrea, 22nd Activity Report of the African
Commission on Human and Peoples’ Rights, 2007, Annex II.
75
  Comm. 266/2003, Kevin Mgwanga Gunme et al. v. Cameroon, 26th Activity Report of the African
Commission on Human and Peoples’ Rights, December 2008—May 2009, Annex 4.
76
 97/93, John K. Modise v. Botswana, 10th Annual Activity Report of the African Commission on
Human and Peoples’ Rights 1996-1997 Annex X.
77
  54/91, 61/91, 98/93, 164/97 à 196/97, Malawi African Association, Amnesty International, Ms
Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit
v. Mauritania and Association Mauritanienne des Droits de l’Homme v. Mauritania, 13th Annual Activity
Report of the African Commission on Human and Peoples’ Rights 1999-2000, Annex V, Addendum;
262/2002, Ivorian Human Rights Movement (MIDH) v. Côte d’Ivoire 26th Activity Report, December
2008—May 2009, Annex 2.
78
 241/2001 Purohit and Moore v. the Gambia, 16th Annual Activity Report of the African
Commission on Human and Peoples’ Rights 2002-2003, Annex VII.
79
  275 / 2003 Article 19 v. The State of Eritrea, 22nd Activity Report of the African Commission on
Human and Peoples’ Rights, 2007, Annex II.
80
 246/2002 Mouvement Ivorien des Droits Humains (MIDH) v. Côte d’Ivoire, 25th Activity Report of
the African Commission on Human and Peoples’ Rights, May-November 2008 Annex IV.
81
  Gunme et al. v. Cameroon, supra n. 75.
82
  Comm. 236/2000 Curtis Francis Doebbler v. Sudan 16th Annual Activity Report of the African
Commission on Human and Peoples’ Rights 2002-2003, Annex VII.
83
  Comm. 228/99 The Law Office of Ghazi Suleiman v. Sudan, 16th Annual Activity Report of the
African Commission on Human and Peoples’ Rights 2002-2003, Annex VII.
 Non-Monetary Remedies 389

of legislation providing a framework for self-regulation by journalists;84 decriminaliza-

tion of offences;85 new laws to conform to the African Charter or other international
obligations;86 and abolition of discriminatory practices.87 The Commission has even
engaged in addressing constitutional reform, recommending broad participation in
conceptualizing and drafting a proposed new Constitution,88 and engaging in construc-
tive dialogue with the complainants to resolve constitutional issues and grievances.89
The Commission has made numerous recommendations with respect to domestic
judicial processes, including reopening and reconsideration of a case;90 acceleration
of pending cases91 and urgently ensuring that court decisions are respected and
implemented.92 The Commission has also recommended the release or speedy fair trial
of detained journalists;93 and that every person facing criminal charges be tried under
the language he/she understands or that interpreters are employed in courts.94 More
broadly, the Commission has called on governments to guarantee the independence of
the tribunals, reform the courts,95 and improve national human rights institutions.96
Like other human rights bodies, the Commission has also called for the investigation
and prosecution of those responsible for human rights violations;97 and for the state to
84
  Comm. 297/2005, Scanlen and Holderness v. Zimbabwe, 26th Activity Report of the African
Commission on Human and Peoples’ Rights, December 2008—May 2009, Annex 3.
85
 Ibid.
86
  See: Comm. 231/99, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, 14th
Annual Activity Report of the African Commission on Human and Peoples’ Rights 2000-2001 Annex
V; and the cases cited supra at nn. 78–80. See also 251/2002 Lawyers for Human Rights v. Swaziland,
18th Annual Activity Report of the African Commission on Human and Peoples’ Rights 2004–2005,
Annex III; Comm. 253/2002 Antoine Bissangou v. Republic of Congo, 21st Activity Report of the African
Commission on Human and Peoples’ Rights, 2006, Annex II; Comm. 281/2003 Marcel Wetsh’okonda
Koso and others v. Democratic Republic of Congo, 26th Activity Report, December 2008—May 2009,
Annex 2; Comm. 373/06, Interights and Another v. Mauritania, 28th Activity Report of the African
Commission on Human and Peoples’ Rights, December 2009–May 2010, Annex II; Comm. 313/05,
Kenneth Good v. Republic of Botswana, 28th Activity Report of the African Commission on Human and
Peoples’ Rights, December 2009–May 2010, Annex IV.
87
 See Gunme et al. v. Cameroon, supra n. 73.
88
  Lawyers for Human Rights v. Swaziland supra n. 84.
89
  Gunme et al. v. Cameroon, supra n. 75.
90
 231/99, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, 14th Annual Activity
Report of the African Commission on Human and Peoples’ Rights 2000-2001 Annex V.
91
 204/97, Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, 14th Annual
Activity Report of the African Commission on Human and Peoples’ Rights 2000–2001 Annex V, and
199/97 Odjouoriby Cossi Paul v. Benin, 17th Annual Activity Report of the African Commission on
Human and Peoples’ Rights 2003–2004 Annex VII.
92
  Comm. 294/2004, Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and
Development (on behalf of Andrew Barclay Meldrum) v. Republic Of Zimbabwe, 26th Activity Report of
the African Commission on Human and Peoples’ Rights, December 2008–May 2009, Annex 3.
93
 Comm. 275 / 2003 Article 19 v. The State of Eritrea, 22nd Activity Report of the African
Commission on Human and Peoples’ Rights, 2007, Annex II.
94
  Gunme et al. v. Cameroon, supra n. 75.
95
  Ibid; Comm. 279/03, 296/05, Sudan Human Rights Organisation & Centre on Housing Rights and
Evictions v. the Sudan 28th Activity Report of the African Commission on Human and Peoples’ Rights,
December 2009-May 2010, Annex V.
96
  Comm. 281/2003 Marcel Wetsh’okonda Koso and others v. Democratic Republic of Congo, 26th
Activity Report of the African Commission on Human and Peoples’ Rights, December 2008–May
2009, Annex 2.
97
  Comm. 204/97, Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, 14th
Annual Activity Report of the African Commission on Human and Peoples’ Rights 2000-2001 Annex V;
Comms. 54/91, 61/91, 98/93, 164/97 à 196/97, Malawi African Association, Amnesty International, Ms
Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit
v. Mauritania and Association Mauritanienne des Droits de l’Homme v. Mauritania, 13th Annual Activity
Report of the African Commission on Human and Peoples’ Rights 1999–2000, Annex V, Addendum;
Comm. 155/96, The Social and Economic Rights Action Center and the Center for Economic and Social
390 The Substance of Redress

take all necessary measures to guarantee the effective protection of human rights98 and
undertake the assessment and eventual elimination of practices that violate the African
Charter.99
Following and expanding on the jurisprudence of the Inter-American system, the
African Commission has recommended extensive remedies for violations of the rights of
indigenous peoples, including restitution and recognition of their ownership of ances-
tral lands, unrestricted access to resources and areas necessary for religious and cultural
rites as well as their economic activities, and payment of royalties as well as employment
in respect of the economic activities of non-indigenous enterprises on their lands.100 In
respect of violations by the government of Sudan in the Darfur region, the Commission
recommended that a National Reconciliation Forum be established, to ‘address the
long-term sources of conflict, equitable allocation of national resources to the various
provinces, including affirmative action for Darfur, resolve issues of land, grazing and
water rights, including destocking of livestock’ and that the government of Sudan desist
from adopting amnesty laws and that pending Peace Agreements be consolidated and
finalized.101
Finally, in relation to redressing violations of the rights of non-nationals, the
Commission has recommended that the state take the following steps: ensure that immi-
gration police, measures and legislation do not discriminate; take measures to ensure
that those in detention are provided with proper medical care; regularly supervise places
of detention; and put in place effective complaints procedures and provide access to
competent authorities for those in detention.102 Safeguards should be put in place to
ensure that individuals are not deported to countries where they might be tortured or
their lives could be at risk. Families and legal representatives must be given access to all
detainees, and human rights training programs should be instituted for law enforcement
agencies and civil servants dealing with non-nationals.103
Inter-American institutions have similarly often directed states to take specific action
to remedy human rights violations. After investigations of human rights abuses in a mem-
ber country, the Inter-American Commission typically recommends that the govern-
ment identify and sanction the wrongdoers, admit the wrongdoing, provide treatment

Rights v. Nigeria, 15th Annual Activity Report of the African Commission on Human and Peoples’
Rights 2001–2002 Annex V and 245/2002 Zimbabwe Human Rights NGO Forum v. Zimbabwe, 21st
Activity Report, 2006, Annex II; 279/03, 296/05, Sudan Human Rights Organisation & Centre on
Housing Rights and Evictions v. the Sudan 28th Activity Report of the African Commission on Human
and Peoples’ Rights, December 2009–May 2010, Annex V.
98
  Comm. 272/03 Association of Victims of Post Electoral Violence & INTERIGHTS v. Cameroon,
27th Activity Report of the African Commission on Human and Peoples’ Rights, June–November
2009, Annex 3.
99
 Comms. 54/91, 61/91, 98/93, 164/97 à 196/97, Malawi African Association, Amnesty
International, Ms Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des
Veuves et Ayants-droit v. Mauritania and Association Mauritanienne des Droits de l’Homme v. Mauritania,
13th Annual Activity Report of the African Commission on Human and Peoples’ Rights 1999–2000,
Annex V, Addendum.
100
 276/2003, 276/2003 Centre for Minority Rights Development (Kenya) and Minority Rights
Group International on behalf of Endorois Welfare Council v. Kenya, 27th Activity Report of the African
Commission on Human and Peoples’ Rights, June-November 2009, Annex 5.
101
  279/03, 296/05, Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v.
the Sudan 28th Activity Report of the African Commission on Human and Peoples’ Rights, December
2009–May 2010, Annex V at para. 229 (f )–(h).
102
  292/2004, 23rd and 24th Activity Report of the African Commission on Human and Peoples’
Rights, May 2007-May 2008, Annex II.
103
 Ibid.
 Non-Monetary Remedies 391

for the injured, and prevent future violations by training and teaching.104 An even greater
range of remedial directions can be found in decisions of the Inter-American Court,
pursuant to Article 63 of the American Convention. The Inter-American Court has
greatly expanded its use of non-monetary orders over time. In the initial Honduran cases
of 1989, the victims asked the Court to order Honduras to put an end to disappearances
in Honduras, investigate and publicly disclose what had happened to the disappeared in
some 150 cases, prosecute and punish those responsible,105 and provide
a public act to honor and dignify the memory of the disappeared. A street, park, elementary
school, high school, or hospital could be named for the victims of disappearances; actions against
death squads and in favor of humanitarian organizations; an end to all forms of pressure against
the families of the disappeared and a public recognition of their honor.106
The Court’s judgment referred back to its decision on the merits, noting that some of
the requested measures would be required as part of the reparation of the consequences
of the violation of rights rather than being part of the indemnity. In particular, it reiter-
ated that its judgment on the merits required Honduras to investigate the cases, prevent
future violations and punish those responsible. Therefore, no order was needed. The
Court also found, like the European Court, that its judgment on the merits is a type of
reparation and constitutes moral satisfaction of significance and importance.
No requests for non-monetary reparations were granted to Velásquez-Rodríguez or
Godínez-Cruz, but the Court did issue an order regarding the mode of payment of the
compensatory damages. In addition to ordering a lump sum payment within ninety days
free of taxes or payment in six monthly instalments, the Court ordered establishment of
a trust fund for the children, created in the Central Bank of Honduras ‘under the most
favourable conditions permitted by Honduran banking practice’. The children were
entitled to receive monthly payments from the fund until the age of twenty-five years,
when the corpus must be distributed.
In the case of Aloeboetoe v. Suriname,107 the victims sought measures other than com-
pensation: an apology from the President of Suriname and the Congress; publication
of the Court’s decision; return of the bodies of the deceased victims to the families; the
naming of a park or square or prominent street after the Saramaca tribe; and investiga-
tion and punishment of the responsible persons. The Court in turn ordered the govern-
ment to reopen and staff the school and health dispensary in the area where the victims’
families lived. The Court did not discuss the other requests, except to note briefly the
continuing obligation of Suriname to inform the families of the location of the bodies of
the victims. The order to reopen the school was particularly far-reaching. Although the
Court called opening the school part of the compensation awarded to the children of the
victims, enabling them to complete their education, the school closure was not a direct
consequence of the violation and the closure was in fact an independent event unrelated

104
  See, e.g., IACHR, Preliminary Observations Of The Inter-American Commission On Human Rights
on its Visit to Honduras, May 15 To 18, 2010, OEA/Ser.L/V/II, Doc. 68, 3 June 2010, para. 126.
105
  There is a vast literature on the duty to investigate and prosecute, much of it stemming from
the impunity and amnesty laws passed in Latin American states after periods of human rights abuses.
See: L. Weschler, A Miracle, A Universe: Settling Accounts with Torturers (New York, 1990); Nino, supra
Chapter  10 n.  40; Diane Orentlichter, ‘Settling Accounts:  The Duty to Prosecute Human Rights
Violations of a Prior Regime’ (1991) 100 Yale L.J. 2537; J. M. Pasqualucci, The Practice and Procedure
of the Inter-American Court of Human Rights, (Cambridge: Cambridge University Press, 2003); Naomi
Roht-Arriaza, ‘Comment, State Responsibility to Investigate and Prosecute Grave Human Rights
Violations in International Law’ (1990) 78 Cal. L. Rev. 449.
106
  Brief of the Commission.
107
  Inter-American Court of Human Rights, Aloeboetoe et al. Case (Reparations) (1993) Series C
No. 15, paras. 9, 20.
392 The Substance of Redress

to the case. Had the state not killed the victims there still would have been no school,
so the order can only be deemed a form of satisfaction to the community as a whole.
As such, the order is somewhat surprising because the Court on the merits had rejected
arguments that the community as a whole had suffered injury from the killings.108
In the El Amparo case, the Court decided to refrain from making an ‘abstract’ pro-
nouncement on the compatibility of the Venezuelan Code of Military Justice109 with
the American Convention and thus refused the Commission’s request to order a revi-
sion of the Code. Investigation and punishment were again referred to as continuing
obligations in the merits judgment. The Commission and the victims argued that it was
essential to go beyond the payment of compensation to conform to the requirements
of Article 63(1) and the earlier judgment, because only in respect of the right to life and
personal integrity was compensation required for the injuries suffered. The state’s brief,
in contrast, asserted that the non-pecuniary reparations were not consistent with ‘either
international case law in general, or with the case law of the Inter-American court in
particular’.110 It claimed that moral damages would cover all satisfaction and that the
judgment and recognition by Venezuela of its responsibility for the violation fully
restored the honour and reputation of the victims and their next of kin. The Court,
consistent with earlier opinions, found it unnecessary to order the investigation and
punishment, deeming it a continuing obligation of the state, which must be discharged
seriously. The Court held Venezuela’s acceptance of international responsibility adequate
reparation for the remaining demands.
In later judgments in disappearances cases, the Court has awarded non-monetary
remedies frequently and expansively in an attempt to restore the victims to their
pre-injury state as fully as possible, including orders for investigation, prosecution and
punishment. In the Neira Alegria case, for the first time, the Court agreed that ‘[a]‌s a
form of moral reparation, the Government has the obligation to do all in its power to
locate and identify the remains of the victims and deliver them to their next of kin’.111
In the Caballero Delgado and Santana case,112 where the Court found Colombia respon-
sible for the detention and disappearances of the two named persons, it found that
‘reparations should consist of the continuation of the judicial proceedings inquiring
into the disappearance of Isidro Caballero-Delgado and Maria del Carmen Santana and
punishment of those responsible in conformance with Colombian domestic law’.113 In
Bamaca Velasquez v. Guatemala,114 the Court ordered that Guatemala not only investi-
gate Bamaca’s disappearance but return his body to his family within six months of the
date of the judgment. Guatemala was also asked to prosecute and punish the perpetra-
tors and to publish the decision in two national newspapers.
In Loayza Tamayo v. Peru,115 the Commission alleged violations of Articles 7 (right to
personal liberty), 5 (right to personal integrity), 8 (judicial guarantees) and 25 (judicial

108
  See ibid, paras. 83–84.
109
  The Military Code provision in question permits the President of the Republic to order that a
military trial not be held when he deems it in the national interest or to order the discontinuance of
military trials when he deems it advisable.
110
  Ibid, para. 51.
111
  Inter-American Court of Human Rights, Neira Alegria et al. Case (Reparations) (1996) Series C
No. 23, para. 69.
112
  Inter-American Court of Human Rights, Cabellero Delgado and Santana Case (Merits) (1996)
Series C No. 22.
113
  Ibid, para. 69.
114
  Inter-American Court of Human Rights, Bámaca Velásquez v. Guatemala (Reparations) (2002)
Series C No. 91 (Judgment of 22 Feb. 2002).
115
  Inter-American Court of Human Rights, Loayza Tamayo (1997) Series C No. 33, para. 46(l).
 Non-Monetary Remedies 393

protection) in relation to Article 1(1) of the Convention, stemming from the illegal dep-
rivation of liberty, torture, cruel, inhuman, and degrading treatment, denial of judicial
guarantees, and double jeopardy of Maria Elena Loayza Tamayo. The Commission asked
the Court to declare that Peru should provide full reparations to the victim for the seri-
ous material and moral damage suffered by her and to order Peru to decree her immedi-
ate release, and pay an indemnity and the costs of the proceeding. The Court held that
Peru violated Articles 7 and 25 by illegally detaining the victim and depriving her of
judicial process. It found cruel, inhuman and degrading treatment in the prison condi-
tions, although it did not find evidence of the rape she had alleged. The Court also found
a violation of Article 8(4) because of the double jeopardy imposed. The Court ordered
Peru to release the applicant from prison within a reasonable time, pay fair compensa-
tion to her and her family, and reimburse the expenses they incurred before the Peruvian
authorities. The order of release took immediate effect. For the other remedies, the Court
asked for details and proof and continued the process.116 As restitution, it ordered Peru to
take the necessary measures to reinstate her in her prior teaching position in the public
sector, with the salary and other benefits equivalent to the amount of her remuneration
for her work in both the public and private sectors at the moment of her detention,
based on their present value at the date of the judgment. It also demanded that the state
provide full retirement benefits taking into account the period of detention and ensure
no adverse consequences from the judgment in the domestic proceeding occurs. The
Court further required, as other non-monetary reparations, that Peru take the neces-
sary internal legal measures to conform its domestic law on terrorism and treason to the
Convention and investigate, identify and sanction those responsible.
The Inter-American Court’s non-monetary awards have demonstrated a particular
concern with restoring the reputation of the victims. Many applicants have been accused
of subversion, terrorism, or other misconduct alleged to justify the actions taken against
them. Suspicions that the victims ‘deserved’ the treatment they received can further harm
them and their families long after the original trauma. In Suárez Rosero v. Ecuador,117 the
applicant, the first to testify in person before the Court, emphasized the importance
of the restoration of his dignity, reputation and rights through an exculpatory official
declaration or judgment. He offered evidence from his therapist of the importance of
vindication and recognition of his dignity. The state asserted that its cooperation during
the reparations phase was itself the recognition as sought by the applicant. The Court
agreed that the judgment in the case was itself a form of reparation and moral satisfaction
of importance to the petitioner, but also ordered Ecuador not to collect the fine levied
on the applicant and to remove his name from both the Register of Criminal Records,
as well as from the Register maintained by the National Council on Narcotic Drugs and
Psychotropic Substances. The Court awarded damages for pecuniary and non-pecuniary
injury as well.
Other specific remedies have been tailored to the needs of the victims. In the Street
Children case (Anstraum Villagrán Morales et al. v. Guatemala),118 the Court ordered
the state to establish a school for street children in the names of the five victims and
to exhume the body of one of the victims and bury it in the cemetery indicated by his

116
  Judge Montiel dissented on the issue of double jeopardy and also objected to the order of release,
viewing it as an annulment of a national judicial decision, something that can only be done by ‘un supe-
rior competente’: dissent of Judge Alejandreo Montiel Arguello, para. 11.
117
  Inter-American Court of Human Rights, Suarez Rosero v. Ecuador (1999) Series C No. 44.
118
 Inter-American Court of Human Rights, Anstraum Villgrán Morales et  al. v. Guatemala
(Reparations) (2001) Series C No. 77.
394 The Substance of Redress

family. The state was also ordered to bring its domestic law into conformity with Article
19 (Rights of the Child) of the Convention within six months.
In sum, the following types of non-monetary awards are commonly ordered: restitu-
tion where possible, for example, property or liberty cases; naming of institutions or
roadways in honour of the victims, as a form of satisfaction; publication of the judg-
ment; provision of governmental services, such as medical care or educational facilities;
and changes in laws to ensure non-repetition of the violation.
A further heading of redress emerged in the Loayza Tomaya case: damage to the ‘life
project’, or the expectations of personal, professional and family development that
are possible under normal conditions. The Court has sought to remedy the damage
that stems from the limitations suffered by the victim of a human rights violation as
they try to establish relationships and enjoy personal, family and social surroundings,
owing to severe injuries of a physical, mental, psychological or emotional nature.
Beyond compensation, the comprehensive reparation of damage to the ‘life pro-
ject’ generally requires measures of rehabilitation and satisfaction, and guarantees of
non-repetition.119 These specific forms of redress are discussed in the following sec-
tions of this chapter.

12.2.1  Rehabilitation
The psychology of victims requires appropriate mechanisms to confront and process
trauma and abuse, facilitating closure rather than repression,120 recognizing that dealing
with grief and anger, as well as rehabilitation of physical injury takes time. Victims may
harbour deep resentments that, if not dealt with, could result in vigilante justice and ret-
ribution. The long-term mental health of individual victims and society as a whole may
be threatened if adequate treatment and rehabilitation is not provided. Serious human
rights violations, especially those attacking physical integrity, can lead to massive trauma
that can be life-long or even multigenerational. Individuals may suffer fear, paranoia,
depression, anxiety, and personality changes. These impacts may be exacerbated if the
victims encounter societal silence and cannot share their experiences. Studies of torture
survivors indicate that few, perhaps fewer than one in ten, recount their experiences
even to their close relatives. Fear of reprisals or reincarceration accounts for some of the
silence, intensifying the sense of isolation.
All victims of serious abuse and their dependents probably need forms of rehabilita-
tion. It can be considered a form of restitution, although it is also crucial to prevent fur-
ther deterioration. Rehabilitation is the process of restoring the individual’s health and
reputation after a serious attack on physical or mental integrity. Such healing requires
acknowledgement of the wrong and reintegration of the individual. Torture and other
violence can result in physical injuries and/or disability, as well as emotional and psycho-
logical consequences. Rehabilitative care may range from needing occupational therapy
and physiotherapy to surgery and wheelchairs.
States and international organizations have thus introduced a variety of non-monetary
measures to respond to these needs, especially in redressing gross and systematic vio-
lations. The Inter-American Court, in the Loayza Tamayo Case, ordered a lump sum

119
  Cf. Inter-American Court of Human Rights, Case of Furlan and Family Members v. Argentina
(Preliminary objections, merits, reparations and costs) (2012) Series C No. 246, para. 285.
120
  Neil J. Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for
Mass Violations of Human Rights’ (1996) 59 Law and Contemp. Probs. 127.
 Non-Monetary Remedies 395

payment which specifically included the cost of the applicant’s future medical treat-
ment and for her two children, who were also affected.121 In the Del Caracazo Case,122
the Court awarded compensation for ‘expenses incurred or to be incurred for medical
treatment’ required by the survivors of a massacre as well as numerous next of kin of the
deceased victims.123 In the Barrios Altos Case, where four survivors of a massacre were
severely injured, the Court ratified a comprehensive agreement reached between the
parties stipulating that the Peruvian government would grant the survivors as well as
the next of kin of the deceased victims free access for life to a range of social and health
services focused on physical rehabilitation and mental health.
The Garcia Lucero v. Chile judgment of 28 August 2013 (Series C, No. 267) , con-
cerned an applicant, aged 79 at the time of judgment, who suffered permanent disability
as a consequence of acts of torture that were outside the Court’s temporal jurisdiction.
The Court was still able to find violations because of the excessive delay by the state in
investigating the detention and torture of Lucero. For this, ‘the State must continue and
conclude, within a reasonable time, the investigation of the said facts’ in an ordinary
court, based on the domestic norms that will allow those responsible to be identified,
prosecuted and punished, as appropriate, ‘taking into account that said facts took place
in the context of a systematic pattern of human rights violations’ (para. 220). Moreover,
‘the State must enable Mr Garcia Lucero to file claims for measures of reparation estab-
lished in the applicable domestic laws’ (para. 222). As for rehabilitation, the temporal
limits on jurisdiction limited what the Court could take into account, but the Court
noted the ‘particularly vulnerable situation’ of Mr Lucero, citing his age (79) and perma-
nent disability as well as uncontested facts about the torture and political imprisonment.
The Court thus urged the State to provide ‘a discretionary sum of money in pounds
sterling that is reasonably adequate to cover the costs of his medical and psychological
treatments in his current place of residence in the United Kingdom’ (para. 233).
The remedies ordered in Juvenile Reeducation Institute v. Paraguay124 exemplify the
case-specific rehabilitation decisions. Based on the findings of mistreatment of those
who had been in the Institute, the Court ordered psychological rehabilitation for the
entire affected population of more than 3,000 victims. Additional medical care, includ-
ing surgery if necessary, was ordered for those children who had suffered burns in several
fires at the facility. Finally, based on the Court’s findings that the case involved children
of extreme poverty, the majority of them pre-trial detainees mixed with adults and with-
out adequate legal representation, the Court ordered the establishment of special edu-
cational and vocational programs for the former detainees. In other cases the Court has
ordered educational benefits125 or scholarships for family members of persons who were
extra-judicially killed or disappeared126
In cases involving massacres of indigenous peoples, the Court has moved to emphasize
culturally-appropriate rehabilitation and the consent of the victims, generally requiring
that states provide medical and psychological treatment through state or private medical

121
  Loayza Tamayo Case, supra n. 115, para. 129(d).
122
  See also Inter-American Court of Human Rights, Blake Case (Reparations) (1999) Series C No. 48.
123
  Del Caracaso Case (Reparations) (2002) Series C No. 95, paras. 86–7.
124
  Inter-American Court of Human Rights, Juvenile Reeducation Institute v. Paraguay (2004) Series
C No. 112.
125
  Inter-American Court of Human Rights, García-Asto v. Peru (2005) Series C No. 137; De la
Cruz-Flores v. Peru (2004) Series C No. 115.
126
  Inter-American Court of Human Rights, Cantoral-Benavides v. Peru (2001) Series C No. 88, para.
80; Gómez-Palomino v. Peru (2005) Series C No. 136; Gómez-Paquiyauri Bros. v. Peru (2004) Series C
No. 110.
396 The Substance of Redress

institutions but, as in Plan de Sánchez, ordering the assistance of experts to provide ‘a spe-
cialized program of psychological and psychiatric treatment’ that takes into account ‘the
special circumstances and needs of each person . . . in order to provide collective, family
and individual treatment’.127 In Fernández-Ortega and Rosendo-Cantú, cases involving
indigenous women living in remote areas where they were subjected to brutal violence,128
the Court demanded that Mexico provide expert state or private medical personnel to
provide the victims with specialized care, as close as possible to where they live. Part of a
trend in its jurisprudence,129 the Court specified that the women’s consent to treatment
programs had to be obtained, based on ‘prior, clear, and sufficient information’.130 If
necessary, Mexico had to provide transportation and interpreter services, as well as cover
other costs directly related to treatments.131 In Rio Negro, where the victims requested
‘culturally appropriate’ psychological care from the state,132 and submitted the testimony
of an expert witness on traditional Mayan healing practices, the Court required that the
victims and the state together design the precise modalities for the health care.

12.2.2  Satisfaction
Both the European Court and the Inter-American Court have reiterated that a judgment
favourable to the victims is itself a form of satisfaction for moral injury.133 At the same
time, the Inter-American Court has recognized a wide range of other non-pecuniary
measures aimed at providing satisfaction. The Court has recognized that dignitary harm
can often only be compensated through symbolic or non-monetary means that provide
satisfaction in addition to, or in lieu of, restitution or compensation. The most common
are: directions to the state to ensure cessation of the violations;134 a full and public dis-
closure of the truth;135 the identification of a deceased or disappeared person’s remains,
and delivery of them to the next of kin;136 as well as the official statements accepting
responsibility and apologizing.137
Beginning in 2001, the Court initiated a practice of requiring commemoration of the
victims by having the government erect plaques, monuments, or other memorials. In the
first such case, Villagrán-Morales v. Guatemala, the Court ordered Guatemala to name a

127
  Inter-American Court of Human Rights, Plan de Sánchez Massacre v. Guatemala (2004) Series C
No. 116, para. 107.
128
  Inter-American Court of Human Rights, Fernández-Ortega et  al. v. Mexico (2010) Series C
No. 215; Rosendo-Cantú v. Mexico (2010) Series C No. 216.
129
  See also Escue-Zapata v. Colombia (2007) Series C No. 165 (requiring the state to relieve the vic-
tims’ bodily and psychological suffering by providing free of charge—with their prior consent and for
the necessary period of time—any necessary medical psychiatric and psychological treatment including
provision of medicines.)
130
  Ibid, para. 251. 131
 Ibid.
132
  Inter-American Court of Human Rights, Río Negro Massacre v.  Guatemala (2012) Series C
No. 250.
133
  Inter-American Court of Human Rights, Mayagna Awas Tingni Community Case (2001) Series C
No. 79, para. 166; Constitutional Court Case (2001) Series C No. 71, para. 122.
134
  See e.g. Loayza Tamayo Case, supra n. 115.
135
  See Inter-American Court of Human Rights, Villagrán Morales et al. Case (Reparations) (2001)
Series C No. 77; Durand and Ugarte Case (Reparations) (2001) Series C No. 89; Cantoral Benavides
Case, supra n. 126; Bámaca Velásquez Case (2001) Series C No. 70; Trujillo Oroza Case (Reparations)
(2002) Series C No. 92; Barrios Altos Case (Reparations) (2001) Series C No. 87, para. 41.
136
  Del Caracazo Case, supra n. 123, para. 123; Neira Alegria et al. Case (Reparations) (1996) Series
C No. 23; Castillo Páez Case (Reparations) (1998) Series C No. 43; Trujillo Oroza Case, supra n. 135;
Cabellero Delgado and Santana Case, supra n. 112.
137
  See e.g. Durand and Ugarte Case, supra n. 135; Bámaca Velásquez v. Guatemala (2002) Series C
No. 91; Barrios Altos Case (Reparations), supra n. 135, para. 44.
 Non-Monetary Remedies 397

school after the five adolescents killed by state security forces.138 The Court also required
the state to install a plaque with the names of the victims on the school building. Two
years later, in Mack Chang v. Guatemala, the Court ordered Guatemala to establish an
annual scholarship in honour of the victim murdered by state agents,139 to name a street or
square in Guatemala City after her, and to place a prominent plaque describing her activi-
ties on behalf of the indigenous at the place where she died or nearby. When the Court
orders such monuments or memorials to be established, it normally indicates that this
is to be done in consultation with the survivors as to the design, content and location.140
The Court appears sometimes to consider memorials both a measure of satisfaction
and a guarantee of non-repetition. Similarly, the Court’s increasingly routine orders
that states find and return remains of victims141 is sometimes listed as a measure of sat-
isfaction and at other times as a measure of rehabilitation of both family members and
communities.142 In Neira-Alegria v. Peru, for example, as a form of ‘moral reparation’
the Court required the state to ‘do all in its power to locate and identify the remains of
the victims and deliver them to their next of kin’.143
As additional measures, the Court may order the state to provide satisfaction ‘by the
execution of acts or works of a public nature or repercussion, which have effects such as
recovering the memory of the victims, re-establishing their reputation, consoling their
next of kin, or transmitting a message of official condemnation of the human rights
violations in question and commitment to the efforts to ensure that they do not happen
again’.144 The Court may require the state to accept responsibility or express regret, issue
an official apology, and, routinely, it orders the government to publish at least part if not
all of the Court’s judgment in the local media and on the government’s official website.

12.2.3 Guarantees of non-repetition
The line between satisfaction and guarantees of non-repetition is not easy to draw;
indeed, all reparations awarded may have some dissuasive effect in deterring future vio-
lations. A decision calling for prosecution and punishment of the perpetrators has con-
siderable precedent in the awards of satisfaction issued by arbitral tribunals for injury
to aliens. To the extent this ensures the perpetrator will not repeat the violation, it can
be considered a guarantee of non-repetition and is frequently indicated as such in judg-
ments of the Inter-American Court.
Changes in underlying law and practice may be required to guarantee non-repetition
and the Inter-American Court sometimes orders that the state adopt or modify its laws
in order to conform to human rights obligations,145 particularly those of the American
138
 See also Inter-American Court of Human Rights, Trujillo-Oroza v.  Boliva, supra n.  135;
Gómez-Paquiyauri Bros. v. Peru (2004) Series C No. 110; Molina-Theissen v. Guatemala (2004) Series
C No. 88.
139
  Inter-American Court of Human Rights, Mack Chang v. Guatemala (2003) Series C No. 101,
paras. 126, 146, 285 (Judgment of 25 Nov. 2003).
140
 Inter-American Court of Human Rights, Ituango Massacres v.  Colombia (2005) Series C
No. 148 (Judgment of 1 July 2006); Moiwana Cmty v. Suriname (2005) Series C No. 124 (Judgment
of 15 June 2005); Nineteen Tradesmen v. Colombia (2004) Series C No. 109 (Judgment of 5 July 2004).
141
  Bámaca-Velásquez v. Guatemala (2002), supra n. 137; Juvenile Reeducation Institute v. Paraguay
(2004) Series C No. 112.
142
  Inter-American Court of Human Rights, Moiwana Cmty v. Suriname (2005) Series C No. 124.
143
  Inter-American Court of Human Rights, Neira-Alegria v. Peru (1996) Series C No. 29.
144
  Villagrán Morales et al. Case, supra n. 135, para. 84.
145
  See e.g. Castillo-Petruzzi v. Peru (1999) Series C No. 52, para. 222; Suárez Rosero Case, supra
n. 117, para. 80; Inter-American Court of Human Rights, Omedo Bustos et al. v. Chile (Last Temptation
of Christ Case) (2001) Series C No. 73 (Judgment of 5 Feb. 2001).
398 The Substance of Redress

Convention.146 In Castillo-Petruzzi v. Peru, the Court held that the exercise of jurisdiction
by military courts over civilians violates the principles of the American Convention and
it ordered Peru to adopt the appropriate measures to amend its laws.147 In Olmedo-Bustos
v. Chile,148 the Court went further in requiring Chile to amend its national constitution
in order to eliminate prior censorship. The Court has also ordered changes in law to pro-
tect the land rights of indigenous and ethnic communities.149 Other orders have required
amendments to legislation and policies to conform to human rights standards on forced
disappearance, due process, voting regulations, and prison conditions.150
In Dos Erres Massacre v. Guatemala, the Court ordered the reform of the Guatemalan
Law on Amparo, Habeas Corpus and Constitutionality, the creation of a webpage for
children who are kidnapped or held illegally, as well as the implementation of human
rights training courses for various state authorities. In another case, the Court directed
the responsible state to ratify and enforce the Inter-American Convention on Forced
Disappearance of Persons.151 If local law is absent on the relevant matter, the Court may
indicate that the state must make criminal certain abuses such as forced disappearance152
and extrajudicial execution.153 It has also required the implementation of other human
rights obligations ratified but not yet implemented by the state.154 These orders are often
accompanied by guidelines and references to relevant international principles and case
law, including the Court’s jurisprudence.
The Court may direct that the state take additional actions to ensure non-repetition
of the violation. In the Mayagna Awas Tingni Case, the Court called on the state to ensure
that no further violations took place, and, in particular, to prevent agents of the state
itself, or third parties acting with its acquiescence or its tolerance, to affect the existence,
value, use or enjoyment of the property located in the geographical area where the mem-
bers of the Community live and carry out their activities.155
Far-reaching measures were ordered in the case of González et al. (‘Cotton Field’)
v. Mexico, given the widespread and repeated violations that were proven. The Court
ordered the state, among other matters, to harmonize its investigative procedures and
prosecution protocols and processes with international standards on the search for
disappeared persons, including the Istanbul Protocol, the United Nations Manual on
the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary
Executions. In addition, the Court ordered the state to create or update a database
of available personal information on disappeared women and girls and all necessary

146
  See e.g. Loayza Tamayo Case, supra n. 115; Suárez Rosero Case, supra n. 117; Trujillo Oroza Case,
supra n. 135.
147
  Castillo-Petruzzi v. Peru, supra n. 145, para. 222.
148
  Olmedo-Bustos, supra n. 145 paras. 97–98.
149
  Mayagna (Sumo) Awas Tingni Cmty v.  Nicaragua (2001) Series C No. 79 (Judgment of 31
Aug. 2001).
150
  See, e.g., Inter-American Court of Human Rights, Herrera-Ulloa v. Costa Rica (2004) Series C
No. 107 (Judgment of 2 July 2004) para.198; Palamara-Iribarne v. Chile (2005) Series C No. 135
(Judgment of 22 Nov. 2005), paras. 256–57; Yatama v. Nicaragua (2005) Series C No. 127, paras.
258–59 (23 June 2005); Montero-Aranguren (Detention Center of Catia) v. Venezuela (2006) Series No.
150, (Judgment of 5 July 2006) paras. 145–46; Hilaire v. Trinidad & Tobago (2002) Series C No. 94,
(Judgment of 21 June 2002), para. 217.
151
 Inter-American Court of Human Rights, Benavides Ceballos Case (1998) Series C No. 77,
paras. 51–2.
152
 See Trujillo Oroza Case, supra n. 135.
153
 See Barrios Altos Case, supra n. 135 at para. 41; Bámaca Velásquez Case, supra n. 137.
154
 See Villagrán Morales et al. Case, supra n. 135, para. 123.
155
  Mayagna Awas Tingni Community Case, supra n. 149, para. 153. See also Hilaire et al. Case, supra
n. 150, paras. 113, 212, 215.
 Non-Monetary Remedies 399

personal information, mainly genetic data and cell samples, of the next of kin of the
disappeared, with their consent or under court order, so that the state could store this
information to help locate the disappeared person. The database should also include the
genetic data and cell samples from the bodies of any unidentified woman or girl found
deprived of life in the state of Chihuahua. In Fernández-Ortega and Rosendo-Cantú,
similarly, the judgments urged a ‘standardized action protocol for the investigation of
sexual abuse’ for both the Mexican state of Guerrero and the federal government based
on the Istanbul Protocol and World Health Organization guidelines.156
Two further cases illustrate the range of non-monetary orders issued by the
Inter-American Court. In Mendoza et  al. v. Argentina, the Court ordered the state
to: adapt its legal framework on juvenile criminal justice to the international standards
indicated in the judgment, and design and implement public policies on the prevention
of juvenile delinquency through effective programs and service that encouraged the inte-
gral development of children and adolescents; ensure that it never again imposed impris-
onment or life imprisonment on those who have committed offences while minors, and
guarantee that the individuals who are currently serving such sentences for offences
committed while underage can obtain a review of their sentences that is adapted to the
standards indicated in the judgment; amend its domestic laws in order to guarantee the
right to appeal a judgment before a higher court, and implement, within a reasonable
time, if it does not exist already, compulsory programs or courses on the principles and
norms for the protection of human rights and the rights of the child, including those
relating to humane treatment and torture, as part of the general and continuing training
of federal prison personnel and that of the province of Mendoza, as well as of judges with
competence over offences committed by children.157
Finally, in López-Álvarez v.  Honduras,158 the merits judgment detailed numerous
abuses, including violations of equality and freedom of expression because of the prison’s
ban on use of the Garifuna language spoken by Afro-descendants within the country.
The Court called for structural remedies to address discrimination in Honduras includ-
ing an order to improve conditions in detention centres, and a ‘training program on
human rights for the officers that work in the penitentiary centres’. Such structural
orders have the potential to bring about broad changes in the societies to which they are
directed, especially if the orders require the participation of the survivors and victims in
designing the programs to comply with the judgment.

12.3  Assessing the Need for Non-Monetary Remedies

With non-monetary remedies there is often a controversy because they focus on future
probabilities rather than evaluating a completed set of events. A prediction of what
is likely to occur suggests imposing a program to contain future consequences.159
Remedies may order specific measures to prevent or end the abuse, including enjoining
particular action or sanctions for repeated abuse. This is particularly appropriate where
harm is threatened that is irreparable (for example, death). Where this is the case, and the

156
  Fernández-Ortega, supra n. 128, para. 260.
157
  Inter-American Court of Human Rights, Case of Mendoza et al. v. Argentina (2013) Series C 260,
operative paragraphs 20–23.
158
  Inter-American Court of Human Rights, López-Álvarez v. Honduras (2006) Series C No. 141
(Judgment of 1 Feb. 2006).
159
  A. Chayes, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harv. L. Rev. 1281.
400 The Substance of Redress

harm is one for which money damages cannot adequately compensate, non-monetary
relief can be used to prevent permanent injury. Moreover, as Tomuschat has noted,
‘moral reparation in the form of apologies or acknowledgement of past wrongs should
never be denied to the victims of grave human rights violations. Even the least affluent
state is able to afford that type of redress . . . ’160
Several factors may determine that non-monetary remedies are warranted:
(1) Is it acceptable to substitute money damages for the invaded interest or are those
interests too fundamental to permit payment in lieu of restitution and changes to
ensure non-repetition of the violation?
(2) Does the court have the administrative capability to supervise compliance or is
there a related political organ capable of follow-up and enforcement, if necessary?
(3) Has the victim been deprived of something that only specific restitution will
remedy?
(4) Would multiple actions have to be brought to stop the wrongdoing or is repeated
violation unlikely?
(5) Can damages be accurately measured?
As the caseload of human rights tribunals continues to rise, the fourth element has
become an important consideration. In the European system, the number of procedural
delay cases stemming from inefficient legal systems suggests that governments have cho-
sen to pay each litigant for delays in their state’s judicial system rather than undertake
the reform the Convention requires. If the Court takes its role seriously, it should either
impose damages on a level that no longer makes it economical for the government to
continue the violation, or it should order the violation to cease. Remedies that fail to
bring the violation to an end undermine the integrity of the system and are an example
that should not be held up to the new member states of the Council of Europe.

12.4 Conclusions
In public law, some interests are so basic that society and the courts think people deserve
to enjoy them free from interference. Monetary compensation that tolerates the wrong
and allows the perpetrator to buy injustice is not appropriate where inalienable rights
are concerned. Performance must be the preferred remedy.161 It contravenes notions of
human rights to reduce them to ‘a series of propositions assuring the payment of money
to the victims’.162
Courts that award damages rather than non-monetary relief may do so because orders
are seen to create potential procedural and substantive burdens. Non-monetary awards
can be difficult to adjudicate, formulate, administer, and enforce. They are also more
invasive of state sovereignty. When deciding whether to order a political body to act,
courts may ask whether it will be difficult or impossible to secure compliance,163 prob-
ably speculating about this more often at the international level where the courts are

160
  Christian Tomuschat, Reparation for Victims of Grave Human Rights Violations, 10 Tul. J. Int’L
& Comp. L. 157, 174 (2002).
161
  D. Louisell and G. Hazard, Cases and Materials on Pleading and Procedure, (4th edn, Mineola,
1979), 109.
162
  O. Fiss, The Civil Rights Injunction (Bloomington, 1978), 75.
163
  See e.g. Giles v. Harris, 189 U.S. 475, 487–8 (1903).
 Non-Monetary Remedies 401

relatively young and the habit of compliance is not yet ingrained. Disobedience may
cause the court to lose prestige, and provide a disincentive to others to accept the court’s
jurisdiction. The risk of non-compliance may make courts reluctant to issue an order,
especially because the wrongdoer has already shown a disregard for the substantive law.
When, however, a court bases its decision exclusively on the likelihood of obedience, it
improperly places the victim’s rights at the mercy of the state’s obduracy.164

164
  Note that the ability of the applicant in Dudgeon supra n. 62, to seek relief was similar to civil
rights declaratory judgment cases in national law. See H. Wilkinson, ‘Anticipatory Vindication of
Federal Constitutional Rights’ (1977) 41 Albany L. Rev. 459.
 13
Punitive or Exemplary Damages

Remedies have a reparative effect, providing restitution or money substitutes for injury
suffered,1 but they also require that the wrongdoer supply the remedy. The community
interest in making whole the injured justifies the remedy, while it is the wrongful nature
of the conduct that supplies the reason for making the wrongdoer pay. Apart from risk
allocation through strict liability regimes, remedies are generally based on fault, a pre-
requisite of liability. Decisions imposing liability and affording remedies thus represent
moral judgment of wrongdoing, a condemnation of the act, and have a retributive as
well as a compensatory purpose. Punishment is not anomalous in civil actions, therefore,
it is inherent in decisions that the conduct in question breached a relevant norm and
requires action to repair resulting injuries.2 Damage awards and other remedies do not
impose an otherwise absent punishment; instead, they increase the severity of punish-
ment already inherent in the judgment. An award of punitive or exemplary damages
makes the admonitory function of reparation more important and express than it would
be if money judgments were limited to compensatory damages. It also provides an incen-
tive for victims who have suffered severe dignitary harm, but little compensatory loss, to
pursue wrongdoers who would otherwise go unsanctioned.
In addition to redressing individual injury and sanctioning wrongdoers, remedies
serve societal needs. Concern for the potential impact of a wrong on a community calls
for a response that will deter the wrongdoer from repeating the injurious act and deter
others from emulating what was done. A judgment condemning wrongful conduct and
affording remedies to the injured is assumed to discourage repetition of the act as well
as to warn others who might be similarly inclined. The linkage of compensation, sanc-
tion and deterrence supplies the reason for taking money from the wrongdoer and for
giving it to the injured party.3 The aim of fulfilling all three functions suggests that the
nature and scope of the remedies should be grounded in the gravity of the offence and
the injury it has caused or may cause. Punitive damage awards warn potential wrongdo-
ers that similar judgments may follow; this knowledge should serve to discourage similar
misconduct.
The compensatory, retributive, and deterrent elements in remedial awards are hard
to measure together. The sum required to make the victim whole may be too severe
or too lenient to deter or admonish the wrongdoer. The allowance of punitive, exem-
plary or aggravated damages is one way partially to separate compensation from sanc-
tion and deterrence. Moral damages can also sanction and deter if they are based on an

1
  Damages generally are supposed to be proportional to harm or loss. Charles T. McCormick, On the
Law of Damages § 20 (St. Paul, 1935), 85–87.
2
  Some view punishment as an expression of solidarity for victims. The root of ‘retribution’ is
‘retribuere’ which conveys the idea of ‘paying back’. Vergeltung in German conveys the same point of
applying to the offender that which he has imposed on the victim. Note that for criminal law, there need
not be a victim: running a red light is an offence even if no one is hit. It may be risk avoidance which is
served by the deterrent function of punitive damages.
3
  Other reasons include the economic security of the injured, who substitutes money damages for
losses, and the general security promoted by discouraging the conduct.
 Punitive or Exemplary Damages 403

assumption that the egregiousness of the wrongdoing can be used to measure the moral
injury. Even some damages traditionally thought of as compensatory in nature are increas-
ingly recognized as having a large punitive element, such as restitutionary damages meas-
ured by the wrongdoer’s gain rather than the victim’s loss. Rulings on whether damages are
proximate or too remote are another means of limiting or stretching compensation to reflect
the degree of wrongdoing. Awards of attorneys’ fees furnish additional reparation and in
some instances are imposed as a sanction. Punitive or exemplary damages thus are only one
of many means to vary the size or nature of the awards in order to sanction and deter.
In many instances, punitive or exemplary damages contain elements of compensation,
as well as deterrence and punishment. The existence of a compensatory element is indicated
by the fact that the nature and degree of harm suffered are often linked to the amount of
punitive damages;4 however, a serious wrong that happens to cause small pecuniary loss may
be under-deterred if the punitive damages are only measured by the level of the compensa-
tory award. Similarly, serious punitive damages based on large compensatory awards may
over-deter. The retributive and deterrent functions may also be separated from each other.
Discussions of punishment often seem to assume that it is coextensive with criminal
justice. Galantery and Luban argue, to the contrary, that a large part of punishment is
not only outside the criminal law but, indeed, the legal system generally.5 Many sanc-
tions for misconduct are imposed by individuals and groups outside the formal legal sys-
tem, and include negative comments, retaliation, shunning, and confrontation. Group
settings with standards governing behaviour, like professional associations, churches,
and schools, often develop regularized codes and procedures to govern punishment.
Withdrawal of professional licences and suspension or termination of employment for
workplace misconduct are only some of the social responses that operate alongside the
official law. The importance of upholding norms through punishing violations indepen-
dently of criminal justice is thus widely accepted.
Punitive or exemplary damages are neither new6 nor limited to a few countries, but
instead are found in legal systems throughout the world.7 According to some, the very
antiquity of such a remedy ‘is something of a prima facie case for its usefulness’.8 In most
common law countries, punitive or exemplary damages may be awarded in cases of
egregious wrongdoing. They are, as their names imply, damages by way of punishment
or deterrence, given entirely without reference to any proved actual loss suffered by the
plaintiff. In a Ugandan case of military authorities abusing civil rights, the court found
that the plaintiff was entitled to both punitive and exemplary damages,9 using the civil

4
 See Kewin v. Massachusetts Mutual Life Ins. Co., 295 N.W. 2d 50, 55 (Mich. 1980) (exemplary
damages are intended to compensate for injury). See also Peisner v. Detroit Free Press, 376 N.W.2d 600
(Mich. 1985).
5
  Marc Galantery & David Luban, ‘Poetic Justice: Punitive Damages And Legal Pluralism’, (1993)
42 Am. U. L. Rev. 1393.
6
  The Code of Hammurabi imposed a payment for theft of an ox, sheep, ass, pig, or goat from a
temple or palace that was thirty times their value. Babylonian laws of restitution in theft cases ranged
from two to thirty times the value of the stolen property. The Twelve Tables in Roman law similarly
called for multiple damages and the Hindu Code of Manu contained a reference to enhanced awards:
A. Kocourek and J. Wigmore, Sources of Ancient and Primitive Law (Boston, 1915), 391, 469. Plato’s
writings also include discussion of increased monetary damages: Plato, Protagoras, 324b; Plato Laws
9.85b and 9.93a.
7
 See Melvin M.  Belli, Sr, ‘Punitive Damages:  Their History, Their Use and Their Worth in
Present-Day Society’ (1980) 49 UMKC L. Rev. 1.
8
  Clarence Morris, ‘Punitive Damages in Tort Cases’ (1931) 44 Harv. L. Rev. 1173, 1206.
9
  Kanike v. Att. General of Uganda, Civil Case No. 196 (1967). See also Kiwanuka v. Att. General
of Uganda, Civil Case No. 159 (1964). Ugandan courts may award exemplary or punitive damages to
victims in cases where the agents of the state have conducted themselves in an oppressive, arbitrary, or
404 The Substance of Redress

tort of trespass to the person. The Indian Supreme Court has awarded exemplary costs in
the disappearance of two persons10 and in custodial death cases.11 It has emphasized that
courts must take into account not only the interest of the applicant and the respondent
but also the interests of the public as a whole with a view to ensuring that public bodies
and officials do not act unlawfully and that they perform their duties properly, especially
where the fundamental rights of a citizen are concerned.12
In the United States, punitive damages are permitted in all but four states13 and
require a showing of some element akin to malice, gross negligence, or reckless disregard
for the injured party.14 Judges may award punitive damages, but more often they result
from a jury trial. Generally speaking, the amount should be proportionate to the com-
pensatory damages and commensurate with the defendant’s acts and wealth.
Punitive or exemplary damages are found outside common law countries,15 as well,
including Brazil,16 Ethiopia,17 and South Africa.18 The Chinese Civil Code does not

unconstitutional manner. Decisions of the High Court show that it considers a number of factors in
determining the nature and amount of compensation payable: actual physical or mental injury; prospec-
tive injury based on the prediction of future aggravation of damage; consequential injury or damage to
third parties, and, in particular, loss of financial and emotional support; and the conduct of the defend-
ant or agents. E. Khiddu-Makubuya, ‘Uganda’ in Seminar on the Right to Restitution, Compensation and
Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, (SIM Special
Pub. No. 12).
10
  Sebastian M. Hongray v. Union of India, AIR (SC) 1026 (1984), 1 SCC 339 (1984); 3 SCC 81;
Saheli v. Commissioner of Police, Delhi, 1990-1 SCC 422, AIR (SC) 513 (1990).
11
  Nilabati Behera v. State of Orissa and others, 2 LRC 99 (1994). The family of a young man found
dead on train tracks after being in police custody established police liability for the death. See also Bhim
Singh v. State of Jammu and Kashmir (1984) Supp. SCC 504 and 4 SCC 677 (1985).
12
  Nilabati Behera, supra n. 11, 114.
13
  See LA. C1V. CODE ANN. art. 3546 (West Supp. 1993) (prohibiting award of punitive dam-
ages); MICH. COMP. LAWS § 600.2911 (1991) (prohibiting recovery of punitive damages in action
for slander and libel, unless defendant fails to publish retraction within reasonable time); N.H. REV.
STAT. ANN. § 507:16 (Supp. 1991) (outlawing recovery of punitive damages in any action, unless
otherwise provided by statute); Abel v. Conover, 104 N.W.2d 684, 689 (Neb. 1960) (interpreting state
constitution, NEB. CONST. of 1875, art. vii, § 5, as preventing punitive damages awards).
14
  See D.R. Dobbs, Law of Remedies: Damages, Equity, Restitution (St. Paul, 1993) § 3.9, 205 (noting
that defendant’s mental state, rather than his or her outward conduct, often justifies award of punitive
damages). The mental state required for an award of punitive damages has been described as malicious,
evil, or displaying wanton misconduct: ibid.
15
  The Philippines courts may award exemplary damages. Art. 2229 of the 1949 Philippine Civil
Code says that ‘exemplary or corrective damages are imposed by way of example or correction for the
public good, in addition to the moral, temperate, liquidated or compensatory damages’. Exemplary
damages may also be imposed, separate and apart from penal fines, as a consequence of civil liability
for all criminal offences whenever the misdeed was committed under ‘one or more aggravating circum-
stances’. Philippine Civil Code, s. 2230. Under Art. 2231 exemplary damages may also be awarded for
gross negligence when the misdeed is not criminal.
16
  The Brazilian Civil Code requires the wrongdoer who injures another’s person or health to pay the
injured party, in addition to his medical costs and loss of earnings, a sum in atonement (multa) equal
to one-half the corresponding penal fine for the particular misdeed. This sum is doubled if the personal
injury results in a mutilation or disfigurement: Brazilian Civil Code, Art. 1538(1). Civil Code, Art.
1538(2) adds that if the disfigured or paralysed victim of an injury is a spinster or a widow of a marriage-
able age, her compensation shall consist of a dowry.
17
  E.g. the Ethiopian Civil Code allows the court to order the defendant to make a payment in
excess of actual damages to either the plaintiff or charity. South Africa also awards exemplary damages
as an accepted principle of Roman-Dutch law: H. Stoll, ‘Consequences of Liability: Remedies’, in
International Encyclopaedia of Comparative Law (The Hague, 1983), xi, 8–114. East African systems
award punitive damages as well as aggravated damages for injury to pride or dignity.
18
  In Roman-Dutch law, the basic purpose of a civil action is to compensate the victim for actual
harm done; however, in the case of an injury to personality or honour, the court may increase the pain
and suffering award ‘in order to punish a defendant for particularly insolent, vindictive or malicious
conduct’: J.C. Van Der Walt, Delict in the Law of South Africa (Durban, 1979), ss. 18, 54.
 Punitive or Exemplary Damages 405

provide punitive damages in name, but it allows the court in a civil case to impose a fine
or warning.19 Norway, Switzerland, and Morocco allow ‘private’ penalties in some cases,
either in a civil action or as an award to the victim in a criminal proceeding. Norway
revised its Law of Damages in 1973 to provide for a private penalty, known as oppreisn-
ing, as a remedy for non-pecuniary harm. ‘Particularly in cases of intentional or grossly
negligent infliction of personal injury, wrongful death, or other interference with per-
sonal rights as well as in connection with certain criminal acts, the wrongdoer can be
adjudicated liable for payment of a private penalty in an amount deemed reasonable by
the court’.20 The Swiss Penal Code, Article 60, similarly authorizes the judge to rule that
a fine be paid directly to the victim, wholly or in part.21
The general requirement of these legal systems is that the conduct of the defendant
be malicious, reckless, oppressive, abusive, evil, wicked, or so gross that some type of
deterrent or punishment is necessary. As the language used may indicate, punitive dam-
ages are not routinely granted; indeed recent studies demonstrate that they are sparingly
awarded22 and they are often reduced on appeal. Strong opposition to punitive damages
also exists within states,23 one judge claiming that punitive damages are awarded in
practice only against ‘(1) really stupid defendants; (2) really mean defendants; (3) really
stupid defendants who could have caused a great deal of harm by their actions but who
actually caused minimal harm’.24 They are seen as particularly objectionable in cases of
systematic or mass violations where the same defendant could be repeatedly punished
for the same course of conduct.25
Although some jurisdictions use the terms interchangeably, punitive damage awards
are usually based on the punishment rationale,26 while exemplary damages focus on
deterrence. Some states reverse the usage, while others use the terms interchangeably.
The punishment rationale supports a requirement that the wrongdoer’s misconduct be

19
  Civil Code of China, Art. 134, 669. 20
 Stoll, supra n. 17, Supp. 8–20.
21
 Ibid, 8–60.
22
  R.A. Brand, ‘Punitive Damages and the Recognition of Judgments’ (1996) XLIII NILR 143, 156,
n. 86. In product liability, where there are nearly 22,000 deaths and 30 million injuries in the USA each
year, there have been only 355 punitive damage awards between 1965–90. In more than one-third of
those cases, the compensatory damages were actually larger than the punitive damages. In almost every
case where punitive damages were awarded, the plaintiff was seriously injured or killed and there was
evidence of knowing misconduct.
23
  The judge in the American case of Fay v.  Parker spoke of punitive damages as ‘a monstrous
heresy . . . an unsightly and an unhealthy excrescence, deforming the symmetry of the body of the
law’: Fay v. Parker 53 N.H. 342, 382 (1873).
24
  TXO Production Corp. v. Alliance Resources Corp., 419 S.E.2d at 887. The United States Uniform
Law Commission issued a draft Model Punitive Damages Act on 6 Feb. 1996 in which it discussed
the concern that awards often bear no relation to deterrence and merely reflect dissatisfaction with a
defendant and a desire to punish without regard to the true harm threatened. The model provides that a
defendant may be liable for punitive damages where the harm was intentional, or of high risk, or it was
certain that harm would result; was malicious, or fraudulent, or constituted a conscious and flagrant
disregard for the rights or interests of others; and an award should be made for the purpose of punish-
ing the defendant for the conduct or deterring the defendant and others from similar conduct in like
circumstances (s. 5).
25
  In asbestos litigation in the USA there are at least 9,000 cases. See Juzwin v. Amtorg Trading Corp.
705 F.Supp. 1953 (D.N.J. 1989).
26
  In England, punitive damages are exceptional but ‘are properly awarded whenever “it is necessary
to teach a wrongdoer that tort does not pay”’: Rookes v. Barnard [1964] AC 1129, 1227. In Canada, also,
the punishment rationale governs, based on retribution for a debt to society. The imposition and meas-
urement of punitive damages are based on the wrongful conduct and are proportionate to the gravity of
the act. Conduct that warrants punitive damages is generally described as ‘vindictive’, ‘reprehensible and
malicious’, or ‘extreme’, that is, conduct that ‘offends the ordinary standards of morality or decent con-
duct in the community in such marked degree that censure by way of damages is . . . warranted’: Vorvis
v. I.C.B.D., 58 DLR 4th 193, 208 (1989) (Can.SC).
406 The Substance of Redress

exceptional. Such a requirement does not fit with the deterrence model that would allow
additional damages even for negligent conduct because it encourages potential defend-
ants to act more carefully. Similarly, the requirement that the punitive damages award
relate to the particular wrong done to the particular victim is consistent with notions
of corrective justice27 but that requirement is not part of the deterrence rationale where
the particular parties serve to achieve some greater social goal. A third term used is
aggravated damages. As previously discussed, aggravated damages, a version of moral
damages, serve a compensatory function in recognizing that the defendant’s misconduct
aggravated the plaintiff’s injuries, especially injury to his or her security, self-esteem, or
reputation.
The courts of various countries enhance damages for egregious government miscon-
duct. In some legal systems, punitive damages can be awarded against individual officials
for flagrantly wrongful acts,28 but government entities cannot be subject to such awards
on the grounds that punitive damages would punish taxpayers who took no part in the
misconduct. Others posit that the deterrent function served by punitive damages is less
necessary in the case of a government entity, because the government is likely to sanction
an offending official even without the award.29 Other legal systems award punitive dam-
ages on the basis that the damages benefit the community and restrain the transgressor.30
Awards of punitive damages may emphasize not only the sanctioning element but
also deterrence: looking back at the conduct of the wrongdoer to see if sanctions are
deserved and in what measure, as well as forward to preventing future harm. The degree
of sanction is proportionate to the gravity of the act deserving of punishment. Punitive
damages may also deter, influencing the behaviour of the particular wrongdoer and
all others who might be tempted to act in the same way in the future, because rational
actors are assumed to weigh the anticipated costs of wrongdoing against the anticipated
prospective benefits. The question is how much punishment is necessary to punish as
well as to reduce or eliminate the harm. A deterrent amount of punitive and exemplary
damages may be less or more than the retributive measure.31 If the wrongdoer achieves an
advantage through inflicting the harm, the gain may be as great or greater than the loss of
the injured; in such an instance the wrongdoer can pay compensatory damages and still
be, or be perceived to be, in a position as good as or better than it was before the com-
mission of the wrong. This is true in many human rights cases where the state may feel

27
  Dobbs, in fact, argues that the function of punitive damages as retribution should be dropped
because there is no agreed method of measurement; because intangible injury is really pain and suffer-
ing under a different label; and the most effective goal for civil litigation is deterrence not punishment.
Therefore, courts should reflect the deterrence objective in assessing damages: D. Dobbs, supra n. 14.
28
  In the USA, the Supreme Court has stated that punitive damages are available against individual
officials for civil rights violations based on 42 U.S.C. § 1983, even though the legislation makes no ref-
erence to the nature and extent of the damages that can be awarded: Carlson v. Green, 446 U.S. (1980)
at 21–2, 1472–3; Smith v. Wate, 75 L.Ed.2d 632 (1983); Carey v. Piphus, 435 U.S. (1987), 257, n. 11.
29
  L. Lurwitz, The State as Defendant: Governmental Accountability and Redress of Individual Grievances
(1982), 453.
30
 See Rashid bin Abdulla v. Major Cartwright, 1 Z.L.R. 407 reprinted in Veitch, supra Chapter 11
n. 25 at 204. The court identified the standard as one of cruelty or great negligence, or an offence of a
grossly unconstitutional nature. See also Minister of Home Affairs v. Allen [1986] 1 Z.L.R. 263 (SC);
Makomboredze v. Minister of State (Security) [1986] 1 Z.L.R. 73 (HC); Granger v. Minister of State
(Security) [1985] 1 Z.L.R. 153 (HC). In general, the courts of Zimbabwe award higher damages in
cases of wrongful arrest and detention, expulsion, and other serious violations of human rights. In
the Makomboredze case, in which the plaintiff was wrongfully deported to Mozambique where he was
kept in a detention camp for twenty months, lost his wife, children, home, and job, the court awarded
$50,000, the equivalent of thirty years of income for the victim.
31
  B. Feldthusen, ‘Punitive Damages in Canada: Can the Coffee Ever Be too Hot?’, in Symposium on
Punitive Damages (1995) 17 Loy.L.A. Int’l & Comp. L.J. 765–861, 793 at 798.
 Punitive or Exemplary Damages 407

it worthwhile to pay compensatory damages to be rid of a political dissident or silence a

critical press. An award of compensatory damages alone can amount to an inexpensive
sale of the option to commit the same wrong or others like it. Disincentives such as addi-
tional awards and non-monetary remedies may be needed to guarantee non-repetition
of the act.
Although punitive or exemplary damages are awarded to punish and deter,32 in prac-
tice they also serve to compensate for losses that are difficult to prove or impossible to
measure or when the rules of damages do not bring sufficient relief. Such awards encour-
age victims to bring public interest actions as ‘private attorneys general’. An incentive
may be especially justified when no criminal prosecution is possible and punishment is
necessary for retributive purposes.33 Society as a whole benefits when victims of human
rights violations are encouraged to bring actions as private attorneys general. An award
of punitive or exemplary damages offers an incentive to the victim who risks bringing the
action, allowing cases to go forward that otherwise would not be pursued.
It also has been suggested that large damage awards are necessary to counterbalance
the likelihood of wrongdoers escaping without accountability34 or at least their expecta-
tion of not being held liable. If only half the cases of wrongdoing are brought and proven
then damages should double to deter adequately. Failure to provide punitive damages
where there is a large likelihood of wrongdoers not being held accountable could lead
victims denied relief to undertake self-help to avoid future injury, for example, from
armed rebellion to departure and requests for asylum. To deter, the optimal magnitude
of damages thus depends upon the wrongdoer’s gain, the victim’s harm, and the prob-
ability of escaping liability. The higher the probability of escaping condemnation, the
higher the total award should be; and the larger should be the ratio of the punitive to the
compensatory component in the total award. This makes punitive damages particularly
important in cases of economically or politically powerful actors.
The main objection raised to punitive damages is that they are criminal or
quasi-criminal in nature and have no place in a civil action, the object of which is to
restore the victim to the position he would have been in had the wrong not occurred. In
this regard, some argue that punitive damages violate the principle of nullum crimine sine
lege, by establishing criminal penalties with a lower burden of proof than is required by
criminal law.35 In response, it may be noted that civil fines are common in most legal sys-
tems and are not subject to the requirements of criminal procedure. In addition, because
the stigma of a civil damage award is not as serious as that of a criminal conviction,

32
 The United States Restatement Second of Torts, s. 908 provides:
(1) Punitive damages are damages, other than compensatory or nominal damages, awarded
against a person to punish him for his outrageous conduct and to deter him and others like
him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s
evil motive or his reckless indifference to the rights of others. In assessing punitive damages,
the trier of fact can properly consider the character of the defendant’s act, the nature and
extent of the harm to the plaintiff that the defendant caused or intended to cause and the
wealth of the defendant.
Punitive damages have also been described as private fines levied by civil juries to punish reprehensi-
ble conduct and to deter its future occurrence: Gertz v. Robert Welch, Inc., 418 U.S. 323, 350; 94 S.Ct.
2997, 3012, 41 L.Ed.2d 789 (1974).
33
  S. Freifield, ‘The Rationale of Punitive Damages’ (1935) 1 Ohio State L.J. 5, 6–9.
34
  Darryl Biggar, ‘A Model of Punitive Damages in Tort’ (1995) 15 Int’l Rev. L. & Econ. 1.
35
  B.S. Markesinis, A Comparative Introduction to the German Law of Torts, (3rd edn, Oxford 1994),
90; Michael Tilbury and Harold Luntz, ‘Punitive Damages in Australia’, in Symposium on Punitive
Damages, supra n. 31, 771.
408 The Substance of Redress

lower standards of proof may be appropriate.36 Critics assert that even if punishment is an
appropriate goal of the civil law that is no reason why the victim should receive the windfall.
The injury is the moral outrage of society.37 Some systems remedy this by removing all or
a portion of the award from the injured party.38 It may also be noted there is no sharp line
between punitive and compensatory damages. The latter may be sought for purposes of
retribution39 and punitive damages may be claimed in order to compensate for harm that is
not recoverable, such as attorney’s fees in many jurisdictions, thus providing an incentive for
victims and their lawyers to pursue the matter.
Punishment reinforces norms and this function is seen as increasingly important in
human rights law to avoid impunity and repetitious violations; the law has thus come to
emphasize criminal prosecution and other sanctions such as lustration in cases of gross or
systematic violations. Punishing the offender through adequate punitive damages similarly
makes a statement that the law guaranteeing human rights is serious and cannot be avoided
solely by compensating the victims.
As the next section discusses, in many instances punitive damages may be the only practi-
cal method of exercising social control over economically and politically powerful institu-
tions, because criminal penalties are no substitute. In human rights law, the most important
reason that criminal penalties fail is that even with the development of international crimi-
nal law, states are not criminally liable.

13.1  Enterprise Liability

When the state is the defendant, punitive damages may provoke objection because the
underlying claim is based on ‘enterprise liability’, with damages assessed against the state as
a whole and enforced against the public treasury, where they are said to fall on the ‘innocent’
who have had no direct involvement in the misconduct.40 Punishment is founded in con-
ceptions of fairness or just deserts,41 demanding that elements of fairness be kept in mind
in imposing sanctions. In the case of governmental enterprise liability, some view damages
based on vicarious liability as an ‘unfair’ basis for punishment because no one should be held
to account for another’s wrongdoing. On the other hand, enterprise liability is often based
on fault, on failure to take action to prevent the wrong or the subsequent condoning of the
wrongful acts of agents. Where the principal is at fault, enterprise liability is clearly appropri-
ate and punitive damages may be necessary.
The aim of deterrence also suggests that punitive damages may be appropriate in an
enterprise context. In the corporate world, courts have stressed that losses to sharehold-
ers occasioned by punitive damages may be useful to encourage shareholders to take an
active role in overseeing corporate activity and in choosing corporate officers and policy.42

36
  Symposium on Punitive Damages, supra n. 31, 760.
37
  See J. Ingram, ‘Punitive Damages Should be Abolished’ (1988) 17 Capital U.L.Rev. 205.
38
 Markesinis, supra n. 35, 691. Nine states in the USA have enacted statutes that provide that a
portion of any punitive award goes to the state (from 20% in New York to 75% in Iowa and Georgia).
Another recently developed idea is that the punitive element of the award goes to charity.
39
  See, e.g., Randall P. Bezanson et al., Libel Law and the Press: Myth And Reality 79 (New York, 1987)
(referring to a survey of libel plaintiffs; 29.4% gave punishment and vengeance as reasons for suing).
40
  This is also true of compensatory damages, but as between the public and the victim, justice
requires compensating the victim for actual losses.
41
 Gary Schwartz, ‘Deterrence and Punishment in the Common Law of Punitive
Damages: A Comment’ (1982) 56 S. Cal. L. Rev. 133.
42
  See e.g. Martin v. Johns-Manville Corp. 469 A.2d 655, 666–7 (Pa. 1983); Wangen v. Ford Motor
Co., 294 N.W.2d 437, 453–4 (Wis. 1980).
 Punitive or Exemplary Damages 409

Similarly, on the basis of deterrence, the law may impose liability for wrongs committed
by state agents because the state employer is in a position to control the activities of the
employee. The state has the capacity; and is likely to punish wrongdoing by agents if the state
will have to pay for any damage caused. If states are likely to punish, then punitive damages
may have a role to play, especially when compensatory damages are likely to be inconse-
quential. Non-punishment could even amount to condoning or ratifying the wrong.
More generally, punitive damages may be needed and appropriate to ensure citizen
scrutiny of government if, as some argue, imposing such liability will encourage greater
care in selecting, training, and electing officials. It is worth recalling that punitive dam-
ages originated in cases of outrageous abuses of authority by government officers.43 In
the first case in English common law awarding punitive damages, Woods and the King’s
messengers ransacked Wilkes’ house because of a ‘libellous’ pamphlet he had published.
The instructions to the jury specifically authorized damages that would punish the
defendant and deter future misconduct. The judge found the common law allowed the
possibility of punitive damages:
I still continue of the same mind, that a jury have it in their power to give damages for more than
the injury received. Damages are designed not only as a satisfaction to the injured person, but
likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a
proof of the detestation of the jury to the action itself.44
Another early judgment, Huckle v. Money,45 awarded exemplary damages in order to
fine the Crown for false imprisonment. The award of £300 was the equivalent of nearly
two years’ salary for the journeyman printer taken into custody in the course of a raid
on a newspaper. He was held in custody for only about six hours and was treated ‘very
civilly’. The rationale is worth quoting at length:
[T]‌the personal injury done to [the plaintiff] was very small, so that if the jury had been confined
by their oath to consider the mere personal injury only, perhaps 20 pounds damages would have
been thought sufficient; but the small injury done to the plaintiff, or the inconsiderableness of his
station and rank in life did not appear to the jury in that striking light in which the great point of
law touching the liberty of the subject appeared to them at the trial; they saw a magistrate over all
the King’s subjects, exercising arbitrary power, violating Magna Charta, and attempting to destroy
the liberty of the kingdom, by insisting upon the legality of this general warrant before them; they
heard the King’s Counsel, and saw the solicitor of the Treasury endeavouring to support and main-
tain the legality of the warrant in a tyrannical and severe manner. These are the ideas which struck
the jury on the trial and I think they have done right in giving exemplary damages.
More recently, in Rookes v. Barnard,46 Lord Devlin’s opinion concluded that only
three categories of cases exist ‘in which an award of exemplary damages can serve a useful
purpose in vindicating the strength of the law and thus affording a practical justifica-
tion for admitting into the civil [law] a principle which ought logically to belong to the
criminal’.47 The first of these are cases in which there is ‘oppressive, arbitrary or uncon-
stitutional action by servants of the government’. There are general guidelines for such
an exceptional award: (1) the plaintiff must be the victim of the punishable behaviour;
(2) the amounts of the awards are limited; and (3) the means of the parties are relevant
in the assessment. The House of Lords confirmed this analysis in Broome v. Cassell &
Co.48 As these decisions reflect, compensatory remedies may not suffice to provide in full

43
  Wilkes v. Woods, 98 Eng.Rep. 489 (C.P. 1763). 44
 Ibid.
45
  Huckle v. Money, 95 Eng.Rep. 2 Wils. K.B. 206, 95 Eng. Rep. 768 (C.P. 1763).
46
  Rookes v. Barnard [1964] A.C. 1129. 47
 Ibid, 1226.
48
  Broome v. Cassell & Co. [1972] A.C. 1027.
410 The Substance of Redress

the needed redress for human rights violations, because they derive from a private law
system that aims only to remedy the wrongdoer’s unlawful conduct committed against
one victim. Human rights procedures, in contrast, are also compliance mechanisms that
aim to fulfil the public policy of upholding the constitutional or treaty regime and the
community interest in respect for human rights. Punitive damages allow expression of
moral outrage in response to illegal conduct and send a signal that outrageous violations
may carry a high price, a valuable mechanism at least until the establishment of the inter-
national criminal court where perpetrators can be brought to justice.
It may be particularly important to consider punitive damages in cases of systematic
wrongdoing where a deliberate course of conduct is involved, although these are precisely
the cases where public funds may be inadequate to provide even compensatory damages
to each victim.49 Patterns or practices of wrongdoing and the wealth of the wrongdoer are
relevant to awards of punitive or exemplary damages because the objective is to make the
violation too costly to repeat.50 In some cases, an enhanced award against the state could
encourage a civil indemnification or criminal action against the perpetrators, in order to
limit assessment of damages against ‘innocent’ taxpayers. The state may in fact be obliged
to take action against the wrongdoer as part of its reparations obligation.

13.2  Awards of Punitive Damages in Human Rights Cases

U.N. treaty bodies that indicate measures of redress have not discussed punitive dam-
ages; the issue has arisen almost exclusively in the regional courts. These courts have
emphasized the remedial or compensatory purpose of reparations, but there seems to
be some shift towards considering exemplary or aggravated damages, if not punitive
measures. Individual judges are increasingly discussing the issue or pointing to a puni-
tive element in awards.51
In the European Court of Human Rights, applicants first argued for an award of exem-
plary damages in the case of Silver v. United Kingdom, citing Rookes v. Barnard.52 They
admitted that the European Court is not bound by precedents in domestic law relating
to the award of damages but argued in favour of them when it is a question of govern-
ment misconduct. The Court denied the request without discussion. More recently, in
the series of cases brought against Turkey, the applicants have regularly included requests
for punitive and aggravated damages on the basis that the acts complained of were egre-
gious and deliberate violations of the most fundamental rights, including life, freedom
from torture and cruel, inhuman, and degrading treatment, and home and private life.53

49
  Contrast Canada (generally cannot punish for course of conduct) and the USA (awards are given
for a general course of conduct). See Ontario Law Reform Commission, Report on Exemplary Damages
(1991), 14–15.
50
  TXO Production Corp. v. Alliance Resources Corp., 113 S.Ct. 2711 (1993).
51
 See the partly dissenting opinion of Judge Matscher in European Court of Human Rights,
Gaygusuz v. Austria (1996) ECtHR 1996-IV, 23 EHRR 364 (commenting that an award of 200,000
Austrian shillings had a punitive element because the maximum amount the applicant could have
received based on legislation in force was 80,000 shillings). See also the partly dissenting opinion of
Judges Lorenzen and Vajic in Ouranio Toxo and others v. Greece (2005) ECtHR 2005-X, 45 EHRR 8.
52
  [1964] A.C. 1129 at 1226.
53
  See e.g. European Court of Human Rights, Selçuk and Asker v.  Turkey (1998) 71 Reports of
Judgments and Decisions 1988-II, 891 (Judgment of 24 Apr. 1998), para. 119. The Court found
violations of Arts. 3 and 8 due to the burning of the applicants’ homes. Each applicant sought £10,000
in punitive damages and £10,000 in aggravated damages. The Court denied each claim without com-
ment. In Aydin v. Turkey (1997) Application No. 23178/94 (Judgment of 27 Sept. 1997) a case of
 Punitive or Exemplary Damages 411

The Court has usually rejected the claims without comment.54 The Practice Direction
on Just Satisfaction Claims issued in 2007 repeats that
the purpose of the Court’s award in respect of damage is to compensate the applicant for the actual
harmful consequences of a violation. It is not intended to punish the Contracting State responsi-
ble. The Court has therefore, until now, considered it inappropriate to accept claims for damages
with labels such as ‘punitive’, ‘aggravated’, or ‘exemplary’.55
While expressing opposition to punitive damages, the European Court suggested in
the Guiso-Gallisay v. Italy case that it has a concern with deterrence, stating that Article
41 awards must be ‘a serious and effective means of dissuasion with regard to the rep-
etition of unlawful conduct of the same type, without however assuming a punitive
function’.56 Yet, in the Dacia SRL v. Moldova case, it held, in response to the applicants, that
[t]‌he Court must proceed on the assumption that the Government will comply with its judg-
ment in good faith. For that reason it cannot accept the applicant company’s claim that it should
be awarded daily and monthly damages to be paid by the Government for the period between
the adoption of the present judgment and its full enforcement. Instead, the Court will apply its
standard approach.”57
In the Trevalec v. Belgium case, Judge Pinto de Albuquerque interpreted the award
of 50,000 euros for non-pecuniary damages in addition to the sums awarded at the
national level, as punitive damages, adding that the European Court was right to make
such an award, given that the just satisfaction under Article 41, per se, has a punitive ele-
ment. In the Oferta Pius SRL v. Moldova case, the amount of the just satisfaction seems
to have been increased because of aggravated circumstances.58
The interstate case of Cyprus v. Turkey59 brought lengthy discussion of punitive or
exemplary damages. The applicant state noted that it had returned to the Court for
just satisfaction only after ‘it had become obvious that Turkey was unwilling to solve
the issue by political means (i.e. through the adoption of general and specific meas-
ures) and enforce the judgment on the merits. The Court noted ‘that general interna-
tional law does, in principle, recognise the obligation of the applicant Government in
an inter-State dispute to act without undue delay in order to uphold legal certainty and

rape and other mistreatment of a detainee, the applicant asked for £30,000 to be paid to a charitable
institution in Turkey by way of aggravated damages for the practice of ill treatment and intimidation as
well as £30,000 in punitive damages. In Mentes and others v. Turkey (Art. 50) (1998) Application No.
23186/94 (Judgment of 24 July 1998) each applicant claimed £30,000 in moral damages, £15,000 in
punitive damages, and £20,000 in aggravated damages because they were the victims of an administra-
tive practice. They submitted that the award should reflect the character of the violations and the need
for deterrence. The Court explicitly rejected the claims for punitive and aggravated damages, but agreed
with an award for non-pecuniary damage, ‘bearing in mind the seriousness of the violations’: para. 20.
See also Akdivar and others v. Turkey (Art. 50) (1998) Reports 1998-II (Judgment of 1 Apr. 1998), para.
38 and Tekin v. Turkey (1998) (2001) 31 EHRR 95 (Judgment of 9 June 1998) (treatment in police
custody and conditions of confinement a violation of Article 3; claim of £25,000 aggravated damages
rejected, but £10,000 awarded in moral damages).
54
 European Court of Human Rights, Lustig-Prean and Beckett v.  The United Kingdom (1999)
Application Nos. 31417/96 & 32377/96 (Judgment of 27 September 1999), para. 22–23; İkincisoy
v. Turkey (2004) Application No. 26144/95 (Judgment of 27 July 2004) para. 149.
55
  President of the ECtHR, Practice Direction, 2, para. 9 [emphasis added].
56
  Guiso-Gallisay v. Italy (2009) Application No. 58858/00, para. 85.
57
  European Court of Human Rights, Dacia S.R.L. v. Moldova (2009) Application No. 3052/04,
para. 57.
58
 European Court of Human Rights, Oferta Pius SRL v.  Moldova (Just Satisfaction) (2008)
Application No. 14385/04 (Judgment of 12 February 2008).
59
  European Court of Human Rights, Cyprus v. Turkey (Just Satisfaction) [GC] (2014) Application
No. 25781/94 (Judgment of 12 May 2014).
412 The Substance of Redress

not to cause disproportionate harm to the legitimate interests of the respondent State’.
The Court thus considered ‘undoubtedly relevant’ the supervisory proceedings before
the Committee of Ministers between 2001 and 2010 in assessing the substance of the
applicant Government’s just satisfaction claim.
The Court awarded 60,000,000 euros to Cyprus for two sets of (not completely
identified) injured parties. Nine of the judges in a short concurring opinion said that the
judgment ‘heralds a new era in the enforcement of human rights’ and ‘marks an impor-
tant step in ensuring respect for the rule of law in Europe’.60 The concurrence of Judge
Pinto De Albuquerque, joined by Judge Vučinić asserts unequivocally that the Court
‘has not only acknowledged the applicability of Article 41 of the European Convention
on Human Rights (“the Convention”) to inter-State applications and established criteria
for the assessment of the time-limit for these just satisfaction claims, but has awarded
punitive damages to the claimant State’. The judges asserted that the Court was doing
‘nothing new’ in punishing the respondent state ‘for its unlawful actions and omissions
and their harmful consequences’.
According to the judges:
the practice of the Court shows that punitive damages have been applied in seven types of cases.61
Firstly, the Court has ordered compensation without any claim for just satisfaction being lodged by
the applicant at all. On the basis of the ‘absolute character’ of the violated right,62 the ‘particularly
serious character of the violations’,63 the ‘gravity of the violations’,64 or the ‘fundamental impor-
tance of that right’,65 the Court is ready to order compensation for violations of Articles 3 and 5
without any claim being made for specific damages. In other cases the applicant asks the Court
to be compensated but does not specify the amount, and the Court orders what it finds to be fair
in the particular case.66 There are also cases where the applicant makes a claim for just satisfaction
specifying a particular amount for non-pecuniary damage, but where the Court awards a higher
amount.67 When the Court awards compensation in an amount higher than the alleged damage
or even independently of any allegation of damage, the nature of the just satisfaction is no longer
compensatory but punitive . . . . Secondly, the Court has in some cases established a ‘symbolic’

60
  Joint concurring opinion of Judges Zupančič, Gyulumyan, David Thόr Björgvinsson, Nicolaou,
Sajό, Lazarova Trajkovska, Power-Forde, Vučinić and Pinto de Albuquerque.
61
  See European Court of Human Rights, Trévalec v. Belgium (Just Satisfaction) (2013) Application
No. 30812/07, (Judgment of 25 June 2013). As is stated therein, paragraph 9 of the Court’s Practice
Direction of 28 March 2007 is no longer up to date.
62
  European Court of Human Rights, Chember v. Russia (2008) Application No. 7188/03, (Judgment
of 3 July 2008), para. 77 (10,000 euros); X. v. Croatia (2008) Application No. 11223/04 (Judgment of
17 July 2008), para. 63 (8,000 euros); Igor Ivanov v. Russia (2007) Application No. 34000/02 (Judgment of
7 June 2007), para. 7 (5,000 euros); Mayzit v. Russia (2005) Application No. 63378/00 (Judgment of 20
January 2005) paras. 87–88 (3,000 euros); and Nazarenko v. Ukraine (2003) Application No. 39483/98
(Judgment of 29 April 2003), para.172 (2,000 euros).
63
 European Court of Human Rights, Bursuc v.  Romania (2004) Application No. 42066/98
(Judgment of 12 October 2004), para. 124 (10,000 euros).
64
  European Court of Human Rights, Gorodnitchev v. Russia (2007) Application No. 52058/99
(Judgment of 24 May 2007), para. 143 (10,000 euros).
65
  European Court of Human Rights, Rusu v. Austria (2008) Application No. 34082/02 (Judgment
of 2 October 2008), para. 62 (3,000 euros); Crabtree v. the Czech Republic (2010) Application No.
41116/04 (Judgment of 25 Feb. 2010), para. 60 (2,000 euros); and Khudyakova v.  Russia (2009)
Application No. 13476/04 (Judgment of 8 Jan. 2009), para. 107 (5,000 euros).
66
 E.g. European Court of Human Rights, Celik and Yildiz v.  Turkey (2005) Application No.
51479/99 (Judgment of 10 Nov. 2005), paras. 30–31; Davtian v. Georgia (2006) Application No.
73241/01 (Judgment of 27 July 2006), paras. 70, 27.
67
  E.g. European Court of Human Rights, Stradovnik v. Slovenia (2006) Application No. 24784/02
(Judgment of 13 April 2006), paras. 23–25, where the Court awarded 6,400 euros for the excessive
length of the proceedings, when the applicant had asked for 5,000 euros.
 Punitive or Exemplary Damages 413
or ‘token indemnity’,68 with the obvious purpose of blaming and shaming the respondent State,
thus making the punishment an example for other States. Thirdly, the Court has also awarded just
satisfaction in cases where the applicant complained about the domestic law without indicating
any personal specific damage other than the distress caused by the existence of the law itself.69 It is
clear that the just satisfaction award is then an exemplary punishment of the respondent State for
having legislated in a way incompatible with the Convention. Fourthly, the Court has ordered just
satisfaction for a ‘potential violation’ of the Convention.70 Here again the purpose of just satisfac-
tion is to censure and punish the respondent State’s conduct rather than to compensate for damage
which has not yet occurred. Fifthly, the Court has even not excluded the possibility that the appli-
cant suffered, as a result of the ‘potential effects of the violation found’, a loss of real opportunities
of which account must be taken, ‘notwithstanding the fact that the prospects of realisation would
have been questionable’.71 In these particular cases, just satisfaction does not even remedy a virtual
harm done to the applicant, since it is doubtful that it would ever materialise. It is the fault-based
conduct of the respondent State that the Court wants to punish. Sixthly, the Court sometimes
even awards compensation in spite of the lack of supporting documents and contradictions in the
statements made by the applicants regarding the losses claimed.72 When no evidence of the alleged
damage is produced, the award of damages lies entirely at the discretion of the Court. In these
circumstances of total lack of evidence and discretionary award of damages, just satisfaction has
an inherent element of punishment, since it does not remedy a proven damage, which remains
speculative, but instead punishes the respondent State’s wrongful conduct. Seventhly, in cases of
general interest, the Court determines just satisfaction taking into account its exemplary effect.73
Citing precedents from other courts, arbitral tribunals, and diplomatic practice, the
judges nonetheless assert that the European Court has been at the forefront of an inter-
national trend, using just satisfaction to prevent further violations of human rights and
punish wrongdoing governments. They see the award of punitive or exemplary dam-
ages as essential in ‘at least’ three circumstances: (1) gross violations of human rights,
especially when there are multiple violations at the same time, repeated violations over
a significant period of time, or a single continuing violation over a significant period of
time; (2) prolonged, deliberate non-compliance with a judgment of the Court delivered
with regard to the recalcitrant party; and (3) the severe curtailment, or threat thereof,
of the applicant’s human rights with the purpose of avoiding, impairing or restrict-
ing his or her access to the Court as well as the Court’s access to the applicant.74 The

68
  E.g. European Court of Human Rights, Engel and Others v. the Netherlands (Article 50) (1976)
Series A No. 22 (Judgment of 23 November 1976), para. 10 (100 Dutch guilders), and Vaney v. France
(2004) Application No. 53946/00 (Judgment of 30 Nov. 2004), para. 57 (one euro).
69
  E.g. European Court of Human Rights, S.L. v. Austria (2003) Application No. 45330/99 ECtHR
2003-I, para. 52 (extracts), the Court made an award for non-pecuniary damage, even though the
impugned provision of the Austrian Criminal Code had already been repealed and the applicant had
therefore ‘achieved in part the objective of his application’.
70
  E.g. European Court of Human Rights, Mokrani v. France (2003) Application No. 52206/99
(Judgment of 15 July 2003), para. 43; Gürbüz v. Turkey (2005) Application No. 26050/04 (Judgment
of 10 Nov. 2005), para. 75, (see the critical opinion of Judges Caflisch and Türmen).
71
  European Court of Human Rights, Sporrong and Lönnroth v. Sweden (Article 50) (1984) Series
A No. 88 (Judgment of 18 December 1984) para. 25; Bönisch v. Austria (Article 50) (1986) Series A No.
103 (Judgment of 2 June 1986), para. 11; Sara Lind Eggertsdóttir v. Iceland (2007) Application No.
31930/04 (Judgment of 5 July 2007), para. 59.
72
  E.g. European Court of Human Rights, Barberà, Messegué and Jabardo v. Spain (Article 50) (1994)
Series A No. 285-C (Judgment of 13 June 1994), paras. 18–20, despite the fact that the decisions of the
Spanish courts subsequent to the principal judgment had already afforded the applicants reparation for
non-pecuniary damage.
73
 E.g. European Court of Human Rights, Xenides-Arestis v.  Turkey (Just Satisfaction) (2006)
Application No. 46347/99 (Judgment of 7 December 2006); Ananyev and Others v. Russia (2012)
Application Nos. 42525/07 and 60800/08 (Judgment of 10 January 2012).
74
  The gravity of some tactics used to silence the applicant, like directly or indirectly threatening his
life or that of his loved ones or initiating arbitrary criminal proceedings against the applicant, may call for
414 The Substance of Redress

rationale is found both in causality between the wrongful conduct and the harm, and
in the intention or recklessness (gross negligence) of the wrongdoing state. The gravity
of such breaches engages the interests of all Contracting Parties to the Convention, the
Council of Europe as an institution and Europe as a whole. Therefore, ‘punitive damages
are an appropriate and necessary instrument for fulfilling the Court’s mission to uphold
human rights in Europe and ensuring the observance of the engagements undertaken by
the Contracting Parties in the Convention and the Protocols thereto’. No other judges
supported this view.
In 2000, the Parliamentary Assembly of the Council of Europe considered the intro-
duction of a system of fines or astreintes to be imposed on states that persistently fail
to execute judgments of the European Court. Such fines could be imposed on a daily,
weekly or monthly basis, under Article 46.75 The Parliamentary Assembly reiterated this
opinion several times76 as part of its effort to introduce more effective measures in the
face of non-compliance with Court judgments.77 Notably, Article 260 (2) of the Treaty
on the Functioning of the European Union (TFEU)78 provides for imposing financial
sanctions on member states that do not implement judgments of the EU Court of Justice
and the following paragraph provides the same possibility where there is a state failure to
transpose Directives. As the Council of Europe Committee of Ministers is overburdened
by more and more repetitive cases arriving because some states fail to implement a judg-
ment, exemplary damages may be appropriate.79 One proposal would have an exemplary
amount paid by the state to a Human Rights Trust Fund. Even if just satisfaction is lim-
ited by the text of Article 41, as interpreted by the Court, Article 46 may give the Court
the implied competence to condemn the state to pay exemplary damages when the state
refuses to abide by a judgment.
In the Inter-American system, in the Velásquez-Rodríguez and Godínez-Cruz cases,
the Commission specifically requested punitive damages in the amount of 2,422,000
Honduran lempiras ‘because the case involved extremely serious violations of human
rights’.80 The Court rejected the claim, finding that the expression ‘fair compensation’
used in Article 63(1) is compensatory in nature and not punitive. More broadly and
incorrectly, the Court added, ‘this principle is not applicable in international law at

punitive damages. The principle was established in European Court of Human Rights, Oferta Plus SRL
v. Moldova (Just Satisfaction) (2008) Application No. 14385/04 (Judgment of 12 Feb. 2008), para. 76.
75
  In a Report on Execution of Judgments of the European Court, the Assembly rapporteur Erik
Jurgens advised that astreintes would be a useful measure to avoid having recourse to sanctions and
suspension or withdrawal of membership. Council of Europe (Parliamentary Assembly) (PACE),
Execution of Judgments of the European Court of Human Rights, Doc. 8808, para. 94.
76
  PACE, Implementation of Decisions of the European Court of Human Rights, Recommendation
1546 (2002), available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta02/
EREC1546.htm (last visited 31 January 2014); PACE, The Future of the Strasbourg Court and
Enforcement of ECHR Standards: Reflections on the Interlaken Process, Doc. AS/Jur (2010) 06, 21
January 2010); in this last document (3, para. 10), Mrs Herta Däubler-Gmelin noted once more: ‘And
what about the introduction of the system of ‘astreintes’ (a fine for delay in performance of a legal obliga-
tion) to be imposed on states that persistently fail to comply with Court judgments’.
77
  PACE, Draft Protocol No. 15 amending the Convention for the Protection of Human Rights and
Fundamental Freedoms, Doc. 13154, 28 March 2013, 4–5, para. 3.
78
  The consolidated version of the TFEU can be found in OJ C 115/47 (9 May 2008).
79
  Albert Dawson and Dudley Dawson v. Irish Brokers Association, Irish Supreme Court, Decision of
6 November 1998, 8: [W]‌hile aggravated damages are distinct, they are still meant to compensate the
plaintiff and so they should be regarded as a sub-head of compensatory damages awarded to the plaintiff.
On the other hand, exemplary (or punitive) damages are a separate category. They are not compensa-
tory at all.
80
  Inter-American Court of Human Rights, Velásquez-Rodríguez Case (Compensatory Damages)
(1990) Series C No. 7, para. 37.
 Punitive or Exemplary Damages 415

this time’.81 In the 2003 decision in Myrna Mack Chang v. Guatamala,82 however, the
Court began shifting toward recognition that full reparation in some cases involves not
only compensation but punishment. The judgment found that the victim was deliber-
ately murdered as a consequence of a military intelligence operation planned and care-
fully prepared by the high command of the Presidential General Staff. The victim was
selected because of her work documenting the abuse of indigenous communities in
Guatemala. The government then proceeded to cover up the violation, obstruct the
judicial investigation, and attack the investigating police. Judges, prosecutors, attorneys,
the next of kin, and witnesses were also subject to harassment and threats. The govern-
ment acknowledged its responsibility and sought to avoid a full finding of facts on the
merits. Both the Commission and family objected and reiterated requests for the Court
to render judgment on the merits with findings of fact and rulings on the law. The Court
decided to take into account, in addition to and alongside the acquiescence of the state,
the testimony and expert opinions taken at public hearings and the body of evidence
supplied in the case. The Court deemed that the material before it established aggravated
violations and that rendering a judgment would constitute a form of reparation and be
‘a way to avoid recidivism of facts such as those suffered by Myrna Mack Chang and her
next of kin’. The Court found a pattern of extra-legal executions fostered and tolerated
by the state.
In assessing remedies, the Court began by considering that:
[i]‌nternational case law has repeatedly established that the judgment constitutes per se a form of
reparation.83 Nevertheless, given the grave circumstances of the instant case, the intensity of suffer-
ing caused by the respective facts to the victim and her next of kin, the alterations to the conditions
of existence of the next of kin and the other non-material or non-pecuniary consequences suffered
by the latter, the Court deems that it must order payment of a compensation for non-pecuniary
damages, in fairness.’
In setting the compensation for non-pecuniary damage, the Court took into account
that Myrna Mack Chang was extra-legally executed in circumstances of extreme vio-
lence, for which reason it was evident that she felt corporal pain and suffering before
her death, and this was aggravated by the climate of harassment at the time. The Court
pointed out that non-pecuniary damage inflicted on the victim was also evident, as it
is part of human nature that every person subject to aggression such as that committed
against Myrna Mack Chang experiences deep moral suffering. The compensation set by
the Court for the damage suffered by Myrna Mack Chang up to the moment of her death
was given in full to her daughter.
In the case of the next of kin, the Court said that it was reasonable to conclude
that the affliction suffered by the victim extends to the closest members of the fam-
ily, especially to those who were in close emotional contact with her. No evidence was
deemed required to reach this conclusion. In addition, some of the next of kin of Myrna
Mack Chang were themselves victims of various violations due to threats, harassment,
and intimidation. The need of the daughter of the victim, Lucrecia Hernández Mack, to
receive psychological treatment for the damage caused by the violations committed by
the state was also proven and the Court set compensation of US$10,000 as the amount

81
  Ibid, para. 38.
82
  Inter-American Court of Human Rights, Myrna Mack Chang Case (2003) Series C No. 101.
83
  Cf. Inter-American Court of Human Rights, Bulacio Case (2003) Series C No. 100, para. 96; Juan
Humberto Sánchez Case (2003) Series C No. 99, para. 172; and ‘Five Pensioners’ Case (2003) Series C
No. 98, para. 180.
416 The Substance of Redress

to cover future medical expenses. In sum, the Court set the value of compensation for
non-pecuniary damage to be paid to the next of kin of the victim at US$350,000.
The Court then turned to the ‘other injurious effects of the facts, which are not
financial or patrimonial in nature’, and which could be redressed by means of acts of the
public authorities. In many respects, these addressed guarantees of non-repetition; and
included investigation and punishment of those responsible, remembrance of the victim
and consolation for her relatives; and official reproval of the human rights violations
that occurred and undertaking a commitment that acts such as those of the instant case
would happen no more.
The Court recognized that the impunity of those responsible was partial, as one of
the direct perpetrators has been tried and punished. Nevertheless, after more than thir-
teen years, the criminal proceeding was ongoing and pending a decision on an appeal
for annulment. The Court called this ‘a situation of grave impunity that constitutes an
infringement of the aforementioned duty of the State, that is injurious to the next of
kin of the victim, and that fosters chronic recidivism of the human rights violations
involved’. The Court held that the state must effectively investigate the facts in the
instant case, so as to identify, try, and punish all the direct perpetrators and accessories,
and the other persons responsible for the extra-legal execution of Myrna Mack Chang,
and for the cover-up of the extra-legal execution and of the other facts in the instant case,
aside from the person who has already been punished for these facts. The outcome of the
proceeding had to be made known to the public, for Guatemalan society to know the
truth. The Court also found that the state had to ensure that the domestic proceeding to
investigate and punish those responsible for the facts in this case attained its due effects
and, specifically, that it had to abstain from resorting to legal concepts such as amnesty,
extinguishment, and the establishment of measures designed to eliminate responsibility.
To comply with this obligation, the state had also to remove all de facto and legal mecha-
nisms and obstacles that maintained impunity; provide sufficient security measures to
the judicial authorities, prosecutors, witnesses, legal operators, and to the next of kin of
Myrna Mack Chang; and use all means available to it so as to expedite the proceeding.
To acknowledge responsibility by the state, to provide full reparation for the victims,
and to act as guarantees of non-repetition, the Court deemed that the state must carry
out a public act of acknowledgement of its responsibility regarding the facts, and make
amends to the memory of Myrna Mack Chang and to her next of kin, in the presence of
the highest authorities of the state. This act had to be published in the media.
At that same act, taking into account the specifics of the case, the state had also
publicly to honour the memory of José Mérida Escobar, the police investigator who was
murdered in connection with the case. Finally, the state was directed to publish, within
three months of notification of the judgment, at least once, in the official gazette, Diario
Oficial, and in another national-circulation daily, operative paragraphs 1 to 12 and the
proven facts contained in the judgment.
Several judges concurred in the opinion and discussed the issue of reparations at
length. Judge Cançado-Trindade adopted the notion of crime of state to describe the
aggravated responsibility identified in the judgment, while acknowledging that this
concept is rejected by many scholars and the International Law Commission. In his
view, the nature of the offence made a link between reparations and combating impu-
nity, with the former then taking on elements of compensation and punishment. In
his view, exemplary or dissuasive reparations are consistent with the idea of aggravated
responsibility and ensure non-repetition of the offences. He found that this aspect of
punitive damages was consistent with the reparatory function of the Court, but not
in the sense of monetary compensation (which he viewed as entailing a risk of the
 Punitive or Exemplary Damages 417

‘commercialization of justice’). As such, he viewed the various forms of non-monetary

reparations awarded in this case as being both compensatory and punitive, because they
seek to ensure non-repetition as well as repair the harm caused. The measures he referred
to included those preserving remembrance of the violations and requiring specific acts of
the government, such as reopening schools, creating foundations to assist the beneficiar-
ies, naming a school after the victims, and providing health services. Thus, in his view,
punitive damages have long been awarded in the Inter-American system. This approach
probably claims too much, because some of the measures have clearly been intended as
satisfaction, but to the extent that all guarantees of non-repetition are intended to deter
based on past conduct, they could be seen as containing an element of condemnation or
punishment as well as reparation.
The opinion of Sergio Garcia Ramirez also discussed the notion of aggravated respon-
sibility, along with its impact on reparations. Taking the analogy of aggravating factors in
criminal justice, he noted that the facts in this case indicated that the government did not
commit an isolated crime, but used the state apparatus to deliberately violate the most
basic rights of the individual in order to terminate her lawful work and deter other indi-
viduals from similarly revealing the government’s misconduct. The government then
engaged in severe obstruction of justice. In his view, these actions must be taken into
account in deciding the case and they may affect the reparations decided by the Court.
‘[I]‌t is perfectly possible that it influences acts of non-pecuniary compensation, such as
publication of the judgment, expressions of guilt and requirement of apology in official
declarations, and commemoration of the memory of the victim’. He rejected the idea of
punitive damages in monetary terms because ‘it corresponds more to the idea of a fine
than to that of the reparation of damage and, in any case, it would be payable by the
Treasury, which implies an additional burden for the taxpayer and also a reduction in the
resources that should go towards social programs’.
The views of these judges explain more fully what is implicit in the Court’s judgment.
The idea of ‘aggravated’ violations is now accepted in the Inter-American Court and can
be the avenue for various new forms of non-pecuniary remedies.
The European Court has a stronger textual basis for awarding punitive damages, as
there is clear precedent for punitive damages in the arbitral decisions on state responsibil-
ity for injury to aliens. The term ‘satisfaction’ has a broader meaning than is reflected in
the judgments of the European Court. The Inter-American Court, for its part, will have
more difficulty finding a basis in the language of Article 63 which allows it to: (1) rule
that the injured party be ensured the enjoyment of the right or freedom that was vio-
lated; (2) rule that the consequences of the measure or situation that constituted the
breach be remedied; and (3) rule that fair compensation be paid to the injured party. The
Court would have to determine it has inherent power to develop the remedies necessary
to fulfil the object and purpose of the system. As it has already expanded its powers in
various ways, this is not impossible, although it is unlikely. In the Inter-American sys-
tem, the few sanctions taken for human rights violations have been decided by political
organs of the Organization of American States.84

84
  See e.g. Resolution II of the XVII Meeting of Consultation of Ministers of Foreign Affairs, which
addressed human rights violations by the Somoza regime of Nicaragua and which called for ‘immediate
and definitive replacement of the Somoza regime’ and urged member states to take steps to ‘facilitate an
enduring and peaceful solution of the Nicaraguan problem’ on that basis: OAS Doc. OEA/Ser.F/II.17,
Doc. 40/79, rev. 2 at 1–2 (1979).
418 The Substance of Redress

In the EU, while punitive damages may not be required by EU directives, it seems
clear that they may be acceptable in some instances. In the Von Colson and Harz cases,85
the ECJ was called on to consider whether the damages as sanctions laid down in German
legislation purporting to implement the 1976 Equal Treatment Directive complied with
the requirements of Article 6 of that Directive.86 The German law confined damages
in cases of discriminatory hiring to the loss incurred as a result of reliance on a belief
that there would be no discrimination, an amount that was found to be travel expenses
of DM7.20 in the Von Colson case and DM2.31 in Harz. The German courts referred
several questions concerning the adequacy of their remedies to the European Court. The
Court replied that Article 6 of the Directive requires member states ‘to adopt measures
which are sufficiently effective to achieve the objective of the directive and to ensure
that those measures may in fact be relied on before the national courts by the persons
concerned’.87 Access to judicial process in the Court’s view, required access to ‘effec-
tive judicial protection’ such as provisions requiring adequate financial compensation,
backed up where necessary by a system of fines or offering a post to the person subject
to discrimination. The choice was left to the state, provided an appropriate system of
sanctions was imposed. This system of sanctions had to be sufficient ‘to guarantee real
and effective judicial protection. Moreover, it must also have a real deterrent effect on
the employer. It follows that where a Member State chooses to penalize the breach of a
prohibition of discrimination by the award of compensation, that compensation must
in any event be adequate in relation to the damage sustained’.88
Administrative tribunals have awarded punitive damages in rare cases. In Bluske
v. WIPO,89 the International Labour Organization Administrative Tribunal ordered the
organization to pay the complainant 10,000 Swiss francs by way of penalty for each
month of delay in discharging its obligation to decide on the applicant’s reinstatement.
International human rights litigation in United States courts has resulted in awards
of substantial punitive damages. In Filartiga v. Pena-Irala,90 an action brought under
the United States Alien Tort Claims Act, the judge awarded punitive damages against a
Paraguayan torturer. A magistrate first recommended that such damages be denied on
the ground that they are not recoverable under the Paraguayan Civil Code, noting that
‘Paraguayan law, in determining the intensity and duration of the suffering, and the
consequent “moral” damages, takes into account the heinous nature of the tort. The
magistrate found that Paraguayan moral damages are not designed to punish, however,
but to compensate for the greater pain caused by the atrocious nature of the act’.91 The
District Court overruled the magistrate, finding that damage awards must be based
on international law, not Paraguayan or United States law. It held that because of the
non-prosecution of Pena, ‘the objective of the international law making torture punish-
able as a crime can only be vindicated by imposing punitive damages’.92 In determining
the amount of the damages, the court found it appropriate to consider the extent of

85
  Case 14/83, Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] E.C.R. 1891; Case
79/83, Harz v. Deutsche Tradax GmbH [1984] E.C.R. 1921. See J. Steiner, ‘EEC Directives: A New
Route to Enforcement?’ (1985) 101 Law Q. Rev. 491; A. Arnull, ‘Sanctioning Discrimination’ (1984) 9
Eur.L.Rev. 267; D. Curtin, ‘Effective Sanctions and the Equal Treatment Directive: The Von Colson and
Harz Cases’ (1985) 22 Common Market L.Rev. 505.
86
  Christopher McCrudden, ‘The Effectiveness of European Equality Law: National Mechanisms
for Enforcing Gender Equality Law in the Light of European Requirements’ (1993) 13 Oxford J. Legal
Studies 320, 342–4.
87
  Ibid, para. 23. 88
 Ibid.
89
  Bluske v. WIPO (1994) ILOAT Judgment No. 1362 of 13 July 1994.
90
  Filartiga v. Pena-Irala, 577 F.Supp. 860 (1980). 91
 Ibid, 863. 92
 Ibid.
 Punitive or Exemplary Damages 419

Pena’s assets and held that the burden was on him to show his modest means if he wished
that fact to be considered in mitigation. The nature of the acts, characterized as ‘the ulti-
mate in human cruelty and brutality’93 was important. The court pointed out that chief
among its considerations was ‘the fact that this case concerns not a local tort but a wrong
as to which the world has seen fit to speak. Punitive damages are designed not merely
to teach a defendant not to repeat his conduct but to deter others from following his
example’.94 The court held that it must make clear ‘the depth of the international revul-
sion against torture and measure the award in accordance with the enormity of the
offense’. The court concluded that it was essential and proper to grant the remedy of
punitive damages in order to give effect to the manifest objectives of the international
prohibition against torture.95 In another Alien Tort case involving a Guatemalan mili-
tary official,96 the plaintiffs analogized punitive damages to moral damages in civil law.
The declaration of the plaintiff’s expert stated:
[M]‌oral damages under Guatemalan law do partake of a ‘punitive dimension’, as that concept
is applied in the United States. ‘Moral’ damages take into consideration the heinousness of the
crime and whether it was intentional or accidental. The more heinous the tort, the larger the
damage award. Further, ‘moral’ damage awards also consider the relative economic strength of
the tortfeasor’s liability in order to have a substantial economic impact, if he is a person with
extensive resources. Thus, in practice, the determination of the amount of ‘moral’ damages under
[Guatemalan law] does go beyond strict compensation to the victim.
The United States Torture Victim Protection Act (TVPA), passed to implement the
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, provides that an individual who subjects another to torture
or summary execution ‘shall, in a civil action, be liable for damages’.97 No definition of
damages is provided either in the statute or the legislative history; however, Filartiga is
mentioned with approval in the legislative history. In the Guatemalan case, the court
considered whether the TVPA permits punitive damages and held that it does.

13.3 Conclusions
Many claims of human rights violations brought to international tribunals are based on
laws enacted in good faith but in error about the obligations imposed by the relevant
human rights instruments. Other violations are due to acts of state agents not author-
ized by law. In such cases a declaration of the wrong together with compensatory and
moral damages will likely suffice to serve the compensatory, remedial, and retributive
functions of remedies. Deliberate and egregious violations are different. In individual
cases, where a single dissident may be arbitrarily arrested or killed, or certain mem-
bers of a particular religious minority may become targets of repression, high awards
of moral damages could substitute for an award of punitive damages, particularly if the
punitive and deterrent functions of the award are articulated. It may also be appropri-
ate, however, to identify punitive or exemplary damages as such where the conduct
clearly warrants a severe response. In particular, where there is clear evidence of a pattern
of gross and systematic violations deliberately committed by the government, interna-
tional tribunals concerned about impunity must consider enhancing awards or looking
to non-monetary remedies. It is important that governments not continue to violate

93
 Ibid. 94
 Ibid. 95
  Ibid, at 864.
96
  Xuncax v. Gramajo, 886 F.Supp. 162 (D. Ct Mass.1995). 97
 Section 2(a).
420 The Substance of Redress

human rights after paying nominal or low compensatory damages to victims. The cred-
ibility and effectiveness of international human rights protections requires that the more
severe violations be treated more severely. This need not result in a windfall to applicants,
if other tribunals follow the present practice of the Inter-American Court in establishing
trust funds for victims, especially if the funds could be extended to provide redress for
those not involved in filing the complaint but who suffered similar violations.
Most human rights tribunals have either a textual or inherent basis for enhancing
damage awards to deter and punish wrongdoing. Fundamentally the question of puni-
tive or exemplary damages is one of utility.98 Several justifications can be given for their
use:  punishment; deterrence; preservation of the peace; inducement for private law
enforcement; compensation for otherwise uncompensated losses; and payment of costs
and fees. In cases of consistent non-prosecution of individual perpetrators, monetary
awards may be indicated in order to express disapproval of the actions of the govern-
ment, and to repair the full dignitary losses sustained by private individuals. The purpose
is to reprove a state for its conduct and deter it from similar actions in the future.

98
  S. Daniels and J. Martin, ‘Myth and Reality in Punitive Damages’ (1990) 75 Minn. L. Rev. 1.
 14
Costs and Fees

A lack of financial resources can be a major hindrance to recourse to national and inter-
national rights mechanisms. Despite the obvious need for legal aid of many applicants,
no issue divided international tribunals in their early jurisprudence as much as the issue
of awards of costs and attorneys’ fees. The European Court of Human Rights began by
nearly always awarding all or part of them to successful applicants, while the Inter-American
Court of Human Rights, until 1998, granted local costs but did not award attorneys’ fees
for proceedings before it or the IACHR. UN human rights treaty bodies that recommend
measures of redress almost never mention them. Administrative tribunals are also split, with
some awarding costs and fees while others deny them or hide them in large damage awards.
In state practice, there is considerable difference in the treatment of fees and costs
from one state to another. The English rule is that prevailing parties recover fees as a mat-
ter of course from the losing party. This is followed in most common law countries and in
Western Europe. The rule in the USA is that each side pays its own costs and fees unless
a court is authorized by statute or recognized equitable exception to shift payment of the
fees to the opposing party.1 Japan follows the same rule as the USA.
Two reasons are given for not awarding fees and costs to the prevailing party. First,
fee-shifting could discourage the poor from bringing lawsuits out of fear of having to pay
the other side’s fees. Secondly, and probably more important, fee-shifting would impose
too great a burden on judicial administration due to the inherent difficulty in computing
fees.2 Unfortunately, the vast majority of human rights cases are brought by the poor,
who cannot afford legal counsel to challenge wrongdoing. As a result, domestic law often
allows the recovery of legal costs in the public interest. In federal civil rights litigation in
the USA, the Civil Rights Attorney’s Fees Awards Act3 allows reasonable attorney’s fees to
ensure ‘effective access to the judicial process’ for those seeking vindication of civil rights.
In national legal systems, fees are often awarded and the amount is usually calculated
on the basis of the number of hours reasonably expended during the litigation, multi-
plied by a reasonable hourly rate. Other factors may be considered, such as the novelty
and difficulty of the legal questions; skills required to perform the legal work properly;
opportunity costs; customary fees; the fixed or contingent nature of the attorney-client
agreement; time limitations imposed by the court or rules; the amount of money or
importance of interests involved in the case; the experience, reputation and ability of the
attorneys; the undesirability of the case (i.e. whether the attorneys took risks in accepting
the case); and awards in similar cases.

1
  Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 1 L.Ed. 613 (1796). More than 100 American fed-
eral statutes now authorize courts to award attorneys’ fees: ‘Federal Statutes Authorizing the Award
of Attorney’s Fees’ (1986) 9 Attorney Fee Award Rep. 5. Equitable exceptions exist to award fees to the
prevailing party in bad faith lawsuits and vexatious or oppressive litigation. See Kansas City Southern
R. Co. v. Guardian Trust Co., 281 U.S. 11, 50 S.Ct. 194, 74 L.Ed. 659 (1930). Fees are also awarded
plaintiffs in class actions where the plaintiff has preserved or generated a common fund for the benefit of
the class and in shareholders’ derivative suits where the defendant is perceived to benefit from the suit.
2
  See e.g. Fleischmann Distilling Corp. v.  Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18
L.Ed.2d 475 (1967).
3
  42 U.S.C. § 1988 (1988).
422 The Substance of Redress

Attorneys who bring human rights cases need to be paid because fee awards encour-
age them to represent victims who are often indigent, social outcasts, or marginalized.
Some attorneys put themselves at risk pursuing human rights cases, as has been docu-
mented by the Centre for the Independence of Lawyers and Judges4 and the United
Nations Special Rapporteur on the Independence of Judges and Lawyers.5 Without
financial recompense, attorneys in repressive states have little incentive to provide ser-
vices for those most in need. Like all professionals, lawyers are economically motivated
actors, at least in part; they will wage socially beneficial ‘private attorney general’ actions
if the costs are not too great.
There is also an argument based in restitution for an award of attorneys’ fees.6
Restitution encompasses both claims for return of specific items and claims for compen-
sation grounded in notions of unjust enrichment,7 the latter being particularly appli-
cable when a case has broad remedial impact on a defined group or society as a whole.
If legal aid, or the amount the petitioner can pay, fails to cover the reasonable value of
the attorneys’ time, then those who benefit from any changes in the law or practice
that result from the lawsuit will be profiting at the attorneys’ expense, which calls for
the application of the equitable principle that persons who are unjustly enriched must
make restitution. When a state violates human rights, everyone within the territory and
subject to the jurisdiction of the state is a potential victim and benefits when the law or
practice changes. The theory of restitution suggests that all should share in the costs of
the litigation. Society generally benefits from assessing human rights awards from the
public treasury because the benefits received are usually more valuable than the amount
of taxes paid from which the damages are drawn.8 It may be countered that the law of
restitution disfavours forced exchanges, even exchanges that leave the parties better off.9
A basic principle of restitution is that a person who receives a benefit voluntarily con-
ferred in the absence of mistake, coercion, request, or emergency is not unjustly enriched
and has no obligation to pay. The law of restitution would presume that uncomplain-
ing citizens, who may or may not have been victims of similar human rights violations,
have no obligation to pay for the benefits they receive from a decision against the state
brought by the victim who does come forward. It is nonetheless possible to assert that
attorneys’ fees and costs should be awarded according to the law of restitution, when the
following conditions are met:10

4
  See, e.g., Center for the Independence of Judges and Lawyers of the International Commission
of Jurists, Attacks on Justice:  The Harassment and Persecution of Judges and Lawyers 1990–1991
(Geneva, 1992).
5
  The United Nations Commission on Human Rights appointed the Special Rapporteur by Res.
1994/41, endorsed by the Economic and Social Council in Decision 1994/251. The Special Rapporteur
has filed annual reports since 1995. See Report of the Special Rapporteur on the Independence of Judges and
Lawyers, E/CN.4/1995/39, E/CN.4/1996/37 (1996), E/CN.4/1997/32 (1997), E/CN.4/1998/39
(1998), E/CN.4/1999/60 (1999), E/CN.4/2000/61 (2000), E/CN.4/2001/65 (2001), E/CN.4/
2002/72 (2002), E/CN.4/2003/65, and Add. 1 (2003), E/CN.4/2004/60 (2004) and Add. 1.
6
  Charles Silver, ‘A Restitutionary Theory of Attorneys’ Fees in Class Actions’ (1991) 76 Cornell
L. Rev. 656.
7
  Douglas Laycock, ‘The Scope and Significance of Restitution’ (1989) 67 Tex.L.R. 1277, 1279.
8
  See e.g. Richard Epstein, Takings: Private Property and the Power of Prominent Domain (Cambridge,
1985), ch. 1.
9
  See George E. Palmer, Law of Restitution (Boston, 1978), ii, 10.1 (noting ‘judicial disapproval
of unsolicited intervention . . . where the intervener expects compensation’); Restatement (Second) of
Restitution 2, at 34 (Tenth Draft No. 1, 1983): ‘no one should be empowered to thrust a benefit on
another and by that means become his creditor’.
10
  Adapted from Silver, supra n. 6.
 Costs and Fees 423

(1) It is impracticable or impossible to bring an action on behalf of all victims or

potential victims. Most courts ‘start with the premise that one should not be
compensated for intervening in the affairs of another without request’.11 Where
possible, therefore, an attorney should contract for services with those who will
benefit from the litigation. In human rights litigation, however, there are legal
barriers to actions for multiple victims or potential victims; for example, in the
European system only actual victims may file applications and ‘class actions’ are
almost unknown in human rights tribunals. In these cases, a denial of compensa-
tion will not encourage attorneys to bargain with potential clients because, by
assumption, bargaining cannot occur.
(2) As a result of the successful human rights action, other victims and potential
victims enjoy benefits they would not otherwise receive. ‘There can be no unjust
enrichment unless there is enrichment first. The law of restitution generates no
obligations to support lost causes. It requires people to pay compensation only
when benefits actually are received’.12
(3) Other victims and potential victims either voluntarily accept the benefits of the
litigation or have no opportunity to decline them. Lawyers who represent human
rights victims confer benefits involuntarily, in that they only seek to assist their
clients. They cannot restrict access to the benefits they help produce. All other
victims and potential victims as a consequence may enjoy the benefits of the
action.
(4) Other victims and potential victims are better off receiving the benefits of the
litigation and paying attorneys’ fees and costs than doing without the benefits
entirely.
Restitution of costs and fees is based on justice as reciprocity or fair return, imposing a
duty on those who benefit from another’s efforts to offer something of value in return.13
Because attorneys help produce the gains, albeit intangible in many cases, that victims
and potential victims of human rights violations enjoy, justice obligates the payment of
reasonable fees in return. As one commentator explains, ‘[t]‌he concept of justice as reci-
procity has long informed the law of restitution. It explains why people who confer ben-
efits on others can sometimes secure compensation, even when recipients are themselves
innocent of wrongdoing’.14 There also may be a problem of the ‘free-riders’ who benefit
from the cessation of the violation but are unwilling to take the risk of litigation them-
selves. Victims who are unwilling to step forward to complain of human rights violations
nonetheless enjoy the benefits when the breach is remedied. In addition, lawyers often
are discouraged from litigating human rights cases because the victims’ claims are small
and the costs of identifying, locating, and contacting witnesses and acquiring evidence
are prohibitive. Attorneys cannot contract with potential group members who have yet
to be victimized, although such individuals may be numerous. Nor is it equitable to
insist that non-governmental human rights organizations who represent victims assume

11
 Palmer, supra n. 9, 360–1.
12
 Silver, supra n. 6, 676. Note that this view supports a denial of compensation for hours spent on
unsuccessful claims, because time spent on unsuccessful claims that are unrelated to a winning claim
confer no benefits.
13
  See, e.g., John Rawls, A Theory of Justice (Cambridge, 1971), 112; H.L.A. Hart, ‘Are There Any
Natural Rights?’ (1955) 64 Phil. Rev. 175.
14
 Silver, supra n. 6, 667.
424 The Substance of Redress

the burden of the costs and fees. Such organizations are not-for-profit, must engage in
constant fundraising and are often short of resources.
In the European system, costs and fees fall within the provisions of Article 41 mean-
ing that they are afforded ‘if necessary’. The Court nearly always finds them so at least in
part. Indeed, legal aid was introduced into the European system because it was felt that
the inability of applicants to pursue their claims due to financial hardship would under-
mine the integrity of the system.15 Legal aid is provided according to need and is paid out
of the Council of Europe’s budget. The amounts provided are not high and normally are
awarded per case, whatever the gravity of the violation or the complexity of the matter.
The European Court of Human Rights dealt with the issue of costs and fees at some
length in its plenary decision in Sunday Times v. United Kingdom,16 after the applicants
filed an unquantified claim for costs and expenses incurred in both the domestic litiga-
tion and proceedings before the European Commission and Court. In holding that
there had been a breach of Article 10 of the European Convention due to an injunction
granted against the Sunday Times in accordance with the English law of contempt of
court,17 the Court reserved the issue of costs and expenses as a remedy under Article
41 (then Article 50). In the separate proceeding, the applicants referred to English
law, where the litigant must bear his own costs unless the court otherwise orders.18 The
European Court reviewed the evidence and arguments submitted and it concurred with
the Commission’s view that the Convention would be the basis of any judgment for a
claim in respect of costs. The Court agreed with the government that ‘the injured party
is not entitled to his costs as of right because ‘just satisfaction’ is to be afforded ‘if neces-
sary’ and the matter falls to be determined by the Court at its discretion, having regard to
what is equitable’.19 In the Sunday Times case, the applicants claimed: £15,809.36 for the
costs of litigation in England; £24,760.53 for proceedings before the Commission and
Court; and an additional amount for the just satisfaction proceedings. In respect of the
entire amount it asked for 10 per cent per annum interest. The Commission supported
the applicant’s claim. The government argued in the alternative that: (1) just satisfac-
tion did not require the award of any costs, citing previous cases where the Court had
held that the decision alone amounted to just satisfaction; (2) the parties had reached
an agreement that precluded the award and that in any event the costs were not neces-
sarily incurred; (3) no amounts should be recovered for claims that were rejected by the
Commission and the Court; and (4) any amounts the Court did decide to award should
not exceed the rates payable under the Commission’s legal aid programme.
The Court distinguished, as it had previously, between damage caused by a violation
of the Convention and costs necessarily incurred by the applicant. It noted that even in
those cases where it had found that the decision itself was just satisfaction for the injury
suffered, ‘the Court’s general practice has been to accept claims in respect of the [costs
necessarily incurred by the applicant] . . . In fact, it is difficult to imagine that the find-
ing of a violation could of itself constitute just satisfaction as regards costs’.20 The Court

15
  See Andrew S. Butler, ‘Legal Aid Before Human Rights Treaty Monitoring Bodies’ (2000) 49
I.C.L.Q. 360.
16
  European Court of Human Rights, Sunday Times v. United Kingdom (Article 50) (1980) Series
A No. 38, (1981) 3 EHRR 317.
17
  European Court of Human Rights, Sunday Times v.  United Kingdom (Merits) (1979) Series
A No. 30.
18
  Sunday Times (Article 50), supra n. 16, 7. As a general rule, English courts will order the unsuccess-
ful party to pay his opponent the latter’s costs, ‘although the actual amount recoverable will be assessed
by the court and will very rarely cover the full expenditure’: ibid.
19
 Ibid, 9. 20
 Ibid, 10.
 Costs and Fees 425

does not explain why this is the case, when such a finding is deemed adequate for moral
damages, although perhaps it views out-of-pocket expenses as a category of pecuniary
loss that is the direct consequence of the violation and must be reimbursed. The govern-
ment argued that an award of costs should be denied because in its view the litigation
was ‘welcomed’ by the applicants as a means of testing the law. The Court rejected this
contention on the basis that there was no other means of challenging the law, apart from
violating it and running the risk of sanctions for contempt of court. The Court explicitly
referred to the practice of member states in finding that test cases could be appropriate
ones for the award of costs. Significantly, the government’s assertion that it was in the
process of changing its law was not deemed sufficient to bar an award of attorneys’ fees,
the Court finding it ‘not relevant’ to the claim because the contracting states ‘are in
any event under an obligation to adjust their domestic law to the requirements of the
Convention’.
The Court applied the test of necessity in deciding to award costs for the domestic
litigation. It found that the costs in England were incurred by the applicants in assert-
ing their freedom of expression, a right guaranteed by the Convention. In addition, the
Court pointed out, the domestic proceeding was a pre-condition to any submission of
the matter to the European Commission. Nonetheless, the Court denied the costs of the
domestic litigation because of an agreement between the government and the applicants
that each would bear its own costs of litigation.
As for expenses incurred before the Strasbourg institutions, the Court asked whether
the costs: (1) were actually incurred; (2) were necessarily incurred; and (3) are reasonable
as to quantum.21 It has applied this standard in all subsequent cases.
The government asserted that the applicant’s three counsel were unnecessary in view
of the Commission’s role in the case. The Commission and the Court agreed with the
applicants, however, on the need for representation, noting that the applicants were not
formal parties to the proceedings and the Commission’s role was not to represent them
but to assist the court ‘in the capacity of defender of the public interest’.22 This important
distinction between the interests of the applicants and the interests of the Commission
has been referred to by the Inter-American Court in its decisions, but the latter court
initially failed to draw the appropriate conclusion about the necessity of compensated
applicant representation during most stages of the proceedings.
The European Court reduced somewhat the amount claimed in Sunday Times, from
£12,000 to £10,000, on the basis that not all the applicant’s counsel were necessary at
the hearings. On the other hand, the Court deferred to the Commission on the neces-
sity of attendance of the advisers and the applicants at hearings before the Commission,
awarding the full amount claimed. It also allowed the travel expenses of the applicants to
attend the Court hearings, finding their presence ‘of value’, but it rejected their costs for
attending the delivery of the Court’s judgment, finding it unnecessary.
Other claims included the cost of:
(1) Expert opinions on the contempt laws of eight countries. Although these laws
were included as part of the applicant’s submissions, the Court found the opin-
ions unnecessary;

21
  Sunday Times (Article 50), supra n. 16, 12 citing European Court of Human Rights, Neumeiser
v. Austria (Article 50) (1974) Series A No. 17, 209, para. 43 and König v. Germany (Article 50) (1980)
Series A No. 36, 18–19, paras. 24–6.
22
  Ibid, para. 30 quoting Lawless v. Ireland (1960) Series A No. 1.
426 The Substance of Redress

(2) Copies of the book Thalidomide: My Fight. The Court found that the book gave
some background information, but was not necessary to the presentation of the case;
(3) Fee for applicant’s adviser: £7,500;
(4) Translation expenses: £26.84;
(5) Typing: £231.62;
(6) Air freighting and shipment of documents: £70.02;
(7) Telephone calls: £250.
The last five were all found necessary. It is worth noting that the government did not
contest them. In subsequent cases, the Court has allowed claims for translation expenses,
travel to Strasbourg for lawyers and applicants, expert opinions, and subsistence expenses
in Strasbourg. The Court has rejected claims for training and education, such as registra-
tion in a course on procedures followed by the Strasbourg institutions.23 Consultancy
fees are often denied as well.
A major issue on the ‘necessity’ of incurring costs and fees relates to unsuccessful
pleas. In the Sunday Times case, the government contended that the applicants should
be denied costs incurred in advancing submissions rejected by the Court. The applicants
replied that they had to assert their case to the best of their ability and that evaluation by
hindsight was the wrong approach.24 The Court agreed:
The Court cannot accept the Government’s contention, even on the assumption that there is
a satisfactory method of surmounting the difficulties of calculation which it involves. In its
above-mentioned Neumeister judgment . . . the Court drew no distinction between costs referable
to successful pleas on Article 5 para. 3 and costs referable to unsuccessful pleas on article 5(4) and
6(1). Whilst it is in the interests of a proper and expeditious administration of justice that the
Convention institutions be not burdened with pleas unrelated or extraneous to the case in hand,
the submissions now in question cannot be so described.25
The Court added, importantly and correctly, that ‘a lawyer has a duty to present his cli-
ent’s case as fully and ably as he can and it can never be predicted with certainty what
weight a tribunal may attach to this or that plea, provided that it is not manifestly otiose
or invalid’.26 Subsequently, in Eckle v. Germany,27 the government also sought to have the
fees reduced because three issues were not won by the applicants. As in the Sunday Times
case, the Court denied this contention, noting that the three issues were not rejected as
manifestly ill-founded, but continued to the admissibility stage where they were rejected
after a preliminary inquiry into the merits. The examination called for the lawyer’s par-
ticipation and hence costs could be awarded.
As the Court’s caseload has grown, it has failed to adhere to these precedents.
Increasingly it has been discounting fees and costs when it rejects one or more of the
applicant’s claims on the merits. The result is likely to create a conservative bar that is
unwilling to assert new claims or innovative arguments, leading to a static interpretation
of the Convention. Olsson v. Sweden28 indicates the shift in the Court’s approach to fees
for claims decided against the applicant. In Olsson II,29 the applicants asked SEK1,800
per hour for 625 hours work as well as travel and translation expenses. The government

23
  In European Court of Human Rights, Sporrong & Lönrroth v. Sweden (Article 50) (1982) Series
A No. 88, the SEK1,000 enrolment fees was objected to by the government as not being attributable to
a particular case. The Court agreed and denied the award.
24
  Sunday Times, supra n. 16, 14. 25
 Ibid. 26
 Ibid.
27
  European Court of Human Rights, Eckle v. Germany (Article 50) (1983) Series A No. 65.
28
  European Court of Human Rights, Olsson v. Sweden (Olsson I ) (1988) Series A No. 130A.
29
  European Court of Human Rights, Olsson v. Sweden (Olsson II) (1992) Series A No. 250A.
 Costs and Fees 427

protested that the applicants could have used Swedish legal aid in their domestic proceed-
ings. The government also asserted that ‘the way in which the lawyer for the applicants
conducted the proceedings before the Commission should be taken into consideration’.30
It is not clear what this means, although it may be a reference to dilatory tactics. The gov-
ernment further argued that the amount of time claimed was unnecessary and the rate
of the fee was too high. The Court rejected the first contention, holding that there is no
obligation on applicants to apply for legal aid. The domestic amounts were approved, but
in regard to the Strasbourg proceedings, the Court effectively reversed its holding in the
Sunday Times case. In Olsson II, it limited costs and fees: ‘bearing in mind that the appli-
cants have succeeded only on the points mentioned . . . and making an assessment on an
equitable basis, the Court considers that the applicants should be awarded under this head
50,000 kroner’ from which it deducted legal aid received from the Council of Europe.
The SEK50,000 represented less than five per cent of the requested fees of SEK1,269,000.
The issue of the reasonableness of the quantum of fees claimed has been repeatedly
raised in cases before the European Court. In König v. Germany,31 relied on extensively in
the Sunday Times case, the Court held that the applicant was entitled to reimbursement
of sums expended in exercising such national remedies as were intended to expedite the
proceedings against him. Concerning expenses at Strasbourg, the government argued
that the Court should adopt a uniform European rule and suggested the scale established
by the Commission for free legal aid. The Commission disagreed, noting that the result
would be that those applicants coming from countries where justice is less expensive
would thereby obtain full indemnification while others would have to pay sometimes
considerable amounts themselves.
In König, as in Sunday Times and Eckle v. Germany, the Court stated that it is not
bound by domestic scales or standards for lawyers’ fees. The government noted that the
fees charged by the lawyers for König were nearly double normal fees according to the
scales in force in Germany. The Court nonetheless found them reasonable. In the Sunday
Times case the government objected that the costs, especially the lawyers’ fees, exceeded
those normally awarded in English courts. The Court held it is not bound by domestic
scales or standards on quantum and found all the amounts claimed were reasonable.32
The Court does review amounts and shows some scepticism about high fee claims. In
Eckle, the Court noted that the attorney-client agreement to pay higher fees than that
provided in the German scale was presented to the European Court some five years after
the final national decision. While expressing that it had ‘no cause to believe that it is
confronted with a bogus document drafted solely for the purposes of the proceedings
pending before it since the judgment of 15 July 1982’, the Court accepted the suggestion
of the Commission that only DM1,500 be awarded out of a claimed DM10,866.50.
In Silver and others, the applicants’ attorneys submitted a bill of £17,093.63 for costs
and expenses in Strasbourg. They had primary responsibility for the conduct of the seven
joined applications before the Commission and Court. The government argued that an
excessive number of hours was billed at an excessive rate (£40 per hour). The Court
expressed its concern over high fees, quoting its opinion from Young, James and Webster:33
high costs of litigation may themselves constitute a serious impediment to the effective protection
of human rights. It would be wrong for the Court to give encouragement to such a situation in its

30
  Ibid, para. 112. 31
  Konig v. Germany, supra n. 21, 15.
32
  Sunday Times, supra n. 16 (citing Konig v. Germany, supra n. 21, 18–19, paras. 22–3).
33
  European Court of Human Rights, Silver v. United Kingdom (Article 50) (1983) Series A No. 67,
9, para. 18.
428 The Substance of Redress
decisions awarding costs under Article 50. It is important that applicants should not encounter
undue financial difficulties in bringing complaints under the Convention and the Court consid-
ers that it may expect that lawyers in Contracting States will cooperate to this end in the fixing of
their fees.
The Court accepted the applicant’s figures on the number of hours (294) for the seven
cases over seven years, but lowered the fee to £35 pounds per hour. Two lawyers who
claimed fees for appearance before the Court (‘brief fees’) in the amount of £16,250 saw
these reduced to £3,000.
The Court’s approach raises concern that individuals will be unable to obtain
representation if the fees are substantially below those that attorneys can recover by
taking other kinds of cases in their domestic legal systems. Of course, individuals
who bring cases to the European system can be provided with legal aid; however,
‘compared with the amounts offered by way of legal aid in many national systems
the money offered in respect of fees are meagre, if not derisory, and it may be asked
whether this operates to discourage lawyers from bringing cases to Strasbourg’.34
While some claim that ‘in many cases lawyers are not motivated by the prospect
of financial gain when they agree to appear in proceedings before the Court’,35 the
possibility of recovering fees can be important to the ability of clients to obtain rep-
resentation. At present, the prestige of appearing in Strasbourg still appears to be an
incentive to many advocates to take cases despite the limited recovery possible. In the
long term, however, failure to compensate attorneys adequately may diminish the
quality and quantity of legal services available to applicants by discouraging better
lawyers from taking human rights cases.
In the spate of cases brought in the 1990s against Turkey, the Turkish government
has consistently objected to the involvement of British lawyers because of their higher
fees. It has insisted that their appointment had the effect of inflating expenses for travel,
communication, interpretation and translation.36 The Court has rejected this argu-
ment, generally awarding the fees in full at a rate of compensation varying from £100
per hour for one UK lawyer to £25 per hour for Turkish counsel. While the lawyers
have usually received the full amount claimed, the Court has not awarded costs or
fees in most cases to participating Turkish non-governmental organizations, such as
the Kurdish Human Rights Project or Association37 and the Kurdistan Human Rights
Group.38
Another prong of the text is that the applicant must be legally obliged to pay the
costs in order to have them awarded.39 In the case of X. v. United Kingdom,40 the Court
granted attorneys’ fees even though the attorney had not pursued the recovery of his
fees from the client because of the client’s poverty. The Court rejected the government’s
argument that the legal fees were not actually incurred, holding that the decision of the
attorney not to bill the client did not affect the existence of a civil debt and therefore

34
  D.J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights
(London, 1995), 665.
35
 Ibid.
36
  European Court of Human Rights, Mentes v. Turkey (1997) ECtHR Reports 1997-VIII 2693
(Judgment of 28 Nov. 1997), para. 106.
37
  European Court of Human Rights, Aydin v.  Turkey (1997) 1997-VI (No. 50)  Reports 1866
(Judgment of 28 Nov. 1997).
38
 European Court of Human Rights, Kurt v.  Turkey (1998) 1998-III (No. 74)  Reports 1152
(Judgment of 25 May 1998).
39
  European Court of Human Rights, Öztürk v. Germany (Article 50) (1984) Series A No. 85.
40
  European Court of Human Rights, X. v. United Kingdom (Article 50) (1982) Series A No. 55, 17–18.
 Costs and Fees 429

should not affect the award of fees. In another case, the Court rightly rejected the claim
of a non-governmental organization that requested an award of fees for filing a brief
amicus curiae. In Dudgeon v. United Kingdom,41 on the other hand, fees were awarded to
a non-governmental organization that actually represented the applicant.
In all cases, the award of costs and expenses depends on the finding of a violation;
once it is found, the judges have agreed that an award under this heading should be
made; indeed, they have said that ‘it is difficult to imagine that the finding of a violation
could of itself constitute just satisfaction as regards costs’.42 Nonetheless, the applicant
must submit a request for reimbursement and the European Court will not do so absent
such a request. The request must be accompanied by evidence such as bills and invoices.
The evidence should also demonstrate a clear connection between the expenditures and
the proceedings.
The Inter-American system initially did not follow the approach of the European
Court despite the greater poverty in most of the Western hemisphere and the fact that one
of the consequences of a violation is the need for legal representation. In its early practice,
the Court considered the victims’ attorneys to be serving as part of the Commission’s
delegation rather than as representing the victim. The Inter-American Commission only
recently developed a program of legal aid, which remains underfunded, and victims
typically rely on non-governmental organizations or private attorneys to bring cases to
the Commission.
In each of its early cases, the Court found a basis to deny costs and attorneys’ fees.43 In
Aloeboetoe v. Suriname,44 the Court for the first time agreed with the government’s argu-
ment that the Commission was working with outside attorneys, who performed work
that the Commission should be doing. The Court further found that the US$250 per
hour fee for services ‘bears no relationship to prevailing conditions in the Inter-American
system’.45 According to the Court, the Convention assigns responsibility to the Court
and the Commission, whose costs are financed out of the budget of the Organization
of American States. The Court viewed the Commission as ‘preferring’ to contract its
work elsewhere, and found, in consequence, that ‘the Commission cannot demand that
expenses incurred as a result of its own internal work structure be reimbursed through
the assessment of costs’. The Court failed entirely to see the separate interests of the
Commission and the victim.
The Court thereafter began awarding the costs incurred for domestic proceed-
ings only. In El Amparo v.  Venezuela, the Court was persuaded by the Venezuelan
argument that adequate proof of the costs was lacking and that the sum claimed was

41
  European Court of Human Rights, Dudgeon v. United Kingdom (Article 50) (1983) Series A No. 59.
42
  Sunday Times, supra n. 16, para. 16.
43
 In Velásquez-Rodríguez v. Honduras and Godínez-Cruz v. Honduras, the Court refused to award
costs and fees because they had not been pleaded:  Inter-American Court of Human Rights,
Velásquez-Rodríguez (Compensatory Damages) (1989) Series C No. 7, para.193; Godínez-Cruz Case
(Compensatory Damages) (1989) Series C No. 8, para. 202, citing Art. 45(1) of the Court’s rules of
procedure. This decision was repeated during the damages phase of the case. See Velásquez-Rodríguez
(Compensatory Damages) supra in this note, paras. 41–2, where the family sought reimbursement of
costs of the investigation to locate the disappeared. The Court noted that the costs were neither pleaded
nor proven opportunely.
44
  Inter-American Court of Human Rights, Aloeboetoe et al. Case (Reparations) (1993) Series C No.
15. These costs included a visit to Suriname by the attorney representing the victim, a visit to the interior
of the country by part of the non-governmental organization involved, the appointment of research
assistants to prepare the three hearings for the case before the Commission and the initial memorandum
to the Court, and the hiring of an associate professor to take over the law course of the victims’ attorney.
45
  Inter-American Court of Human Rights, Aloeboetoe et al. Case (Merits) (1991) Series C No. 11.
430 The Substance of Redress

disproportionate. Instead of the US$240,000 requested, the Court awarded US$2,000

to each of the families and each of the survivors for the costs incurred regarding actions
taken within the country. In subsequent disappearances cases, the Inter-American Court
has generally ordered the state to pay the expenses borne by the families in investigating
the whereabouts of the victims and in processing the case at the domestic level, based on
equity in the absence of proof as to the amount.46
The Court’s approach to costs and attorneys’ fees was a major disappointment and
justifiably criticized, but litigants did not assist the Court with evidence and arguments.47
It also seems that the claims for costs made in the El Amparo case were excessive; it is hard
to avoid the suspicion that they constituted an effort to receive attorneys’ fees for work
done at the Commission and the Court, as well as in internal proceedings.
Intense criticism of the Court’s judgments on costs and fees and a change in the
composition of the Court may have been responsible for a change in the Rules of Court
allowing direct victim representation at the reparations phase, which in turn led the
Court to begin awarding costs and fees for the international proceedings as well as those
in the domestic remedies. With its 1998 reparations judgment in Garrido Baigorria
v. Argentina,48 and thereafter in the reparations judgments in Suarez Rosero v. Ecuador,
Castillo Paez v. Peru and Loayza Tamayo v. Peru, the Court awarded attorneys’ fees and
costs for proceedings before the international institutions. Suarez Rosero was the first case
where the Court awarded the claimed costs and fees in full, amounting to US$6,804.80
for the merits phase and US$3,635.65 for the reparations phase of the case. The Court
referred to the jurisprudence of the European Court in deciding that costs should
be awarded on an equitable basis and paid if reasonable in quantum and sufficiently
linked to the decision.49 The Court almost never awards the full amount claimed and
requires proof of expenditures. Most awards under this heading fall in the US$10,000 to
US$25,000 range, but can be as low as US$2.000 or as much as US$168,000.50 Many of
the higher awards have been made in cases concerning large numbers of victims, includ-
ing indigenous communities.51
The Inter-American Court’s current approach52 is that costs and expenses are
included in the concept of reparation, ‘because the activities deployed by the victims in
order to obtain justice, at both the internal and the international level, entail disburse-
ments that must be compensated when the international responsibility of the State has
been declared in a judgment’.53 The Court will thus ‘make a prudent assessment of their

46
  Inter-American Court of Human Rights, Caballero Delgado and Santana (1996) Series C No. 22,
paras. 71–2; Aloeboetoe, supra n. 45, 94–5.
47
  In Inter-American Court of Human Rights, Neira Alegria et al. Case (1996) Series C No. 22, no
documentary proof was submitted and the amounts claimed were based on estimates. The Court con-
sidered it ‘fair’ nonetheless to award US$2,000 to each as compensation for the expenses they incurred
in their various representations to the national authorities.
48
  The Court awarded attorneys’ fees of US$20,000 and costs of US$45,000.
49
  The Court cited European Court of Human Rights, Brincat v. Italy (1992) Series A No. 249A.
50
  Inter-American Court of Human Rights, Myrna Mack Chang v.  Guatemala (2003) Series C
No. 101.
51
  See, e.g.: Inter-American Court of Human Rights, Constitutional Court v. Peru (2001) Series C
No. 71 ($85,000); Plan de Sanchez Massacre v. Guatemala (2004) Series C No. 116 ($55,000); Castro
Castro Prison v.  Peru (2006) Series C No. 160 ($90,000); Saramaka v.  Suriname (2008) Series C
No. 185 ($90,000).
52
 See Inter-American Court of Human Rights, Case of Garrido and Baigorria v.  Argentina
(Reparations and costs) Series C No. 39 (Judgment of 27 August 1998), para. 39, and Case of Luna
López (2013) Series C No. 269, para. 258.
53
  Inter-American Court of Human Rights, Gutierrez and Family v.  Argentina (2013) Series C
No. 271, para. 191; Memoli v. Argentina (2013) Series C No. 265, para. 222.
 Costs and Fees 431

scope, which includes the expenses generated before the authorities of the domestic
jurisdiction, as well as those arising during the proceedings before the inter-American
system, taking into account the circumstances of the specific case and the nature of the
international jurisdiction for the protection of human rights. This assessment may be
made based on the principle of equity and take into account the expenses indicated by
the parties, provided that their quantum is reasonable’.54
The Court requires that the claims for costs and expenses of the victims or their repre-
sentatives, and the supporting evidence, be presented to the Court at the first procedural
moment, that is, in the pleadings and motions brief, without prejudice to the filing of
supplementary claims related to new costs and expenses incurred in proceedings before
the Court.55 The Court also insists that it is not sufficient merely to forward probative
documents, but rather the parties must submit arguments that relate the evidence to the
fact that it is considered to represent, and, in the case of alleged expenses, must prove the
expenditures and justify them.56
The convergence of the Inter-American and European Courts on awards of fees and
costs is welcome. Victims need their own attorneys before international tribunals; indeed,
this may be required for due process.57 Procedures before such bodies have not been cre-
ated for the sole benefit of the states, but in order to allow for the exercise of important
individual rights. If the victims and their families are unable to recover costs and fees, the
goal of restitutio in integrum is defeated because the victims suffer unrecovered losses as
a direct consequence of the violation. Those who suffer human rights violations will be
vindicated only if they have access to legal assistance and that assistance will only come if
it is compensated. To ensure restitutio in integrum, international tribunals must liberalize
their views on attorneys’ fees and costs. The victims deserve and are entitled to their own
representation. Where the state has caused the wrong, it should pay for the procedures
necessary to achieve a remedy. It is costly to finance complex litigation and victims of
human rights violations can rarely afford to hire attorneys or pay the amounts necessary
to prove the wrongdoing. CEJIL, a prominent NGO that has litigated numerous cases,
estimated the costs of litigating a case in the Inter-American system in 2006 at $113,000;
not including the costs incurred at the domestic level.58 Lawyers are understandably
reluctant to shoulder these burdens and it will become worse if fees and costs are not
reimbursed. Similarly, single litigants can rarely if ever spend as much money on law-
suits as all victims or potential victims would if they could act in their collective interest.
Without fee shifting, victims will often be unable to sue, undermining the effectiveness
of the systems designed to protect human rights.

54
  See Inter-American Court of Human Rights, Case of Garrido and Baigorria (Reparations and
costs), supra n. 52, para. 82, and Case of the Constitutional Tribunal (Camba Campos et al.) (2013) Series
C No. 268, para. 316.
55
  Cf. Case of Chaparro Álvarez and Lapo Íñiguez (2007) Series C No. 170, para. 275, and Case of
Gudiel Álvarez et al. (‘Diario Militar’) v. Guatemala (Merits, reparations and costs) (2012) Series C
No. 253 (Judgment of 20 November 2012), para. 380.
56
  Cf. Case of Chaparro Álvarez and Lapo Íñiguez, supra n. 55, para. 277, and Case of Gudiel Álvarez
et al. (‘Diario Militar’) v. Guatemala, supra n. 55, para. 380.
57
  See American Convention on Human Rights (entered into force 18 July 1978) OAS Treaty Series
No. 36, 1144 UNTS 123, Art. 8.
58
  The estimate was based on a typical case of a single violation, one victim, easily located witnesses
and relatively uncontested evidence. CEJIL, The Urgent Need for a Legal Aid Fund in the Inter-American
System for the Promotion and Protection of Human Rights (Washington, 2006), 23.
 15
Conclusions

One of the most important legal developments of the modern era—both nationally and
internationally—has been the opening of avenues of complaint for private citizens against
oppressive action by government agents and agencies and the affording of remedies when
violations are found. The right of access to judicial remedies is widely guaranteed in inter-
national human rights treaties and can be considered as part of the corpus of the customary
international law of human rights. In regional and global institutions, most human rights
procedures open to individuals undertake fact-finding, determine whether or not the state
has violated a right guaranteed in the relevant instrument and, if a breach is found, recom-
mend that the state remedy the violation. The recommendations may be general or may
detail the action required of the state. The regional courts additionally may issue binding
decisions that afford compensation for the wrongs that have been committed and direct
that the state afford non-monetary remedies. Remedies not only provide redress for the
individual victim, but they serve the community interest in sanctioning the perpetrator
and deterring future violations by the same or other wrongdoers. They thus serve the rule
of law at all levels of society. While the international criminal court may provide an addi-
tional forum for sanctioning the most egregious breaches of human rights law, it does not
eliminate the need for civil remedies to redress the harm caused to the victims.
The nature and scope of remedies is generally consistent throughout the world. The
notion of remedial justice, of wiping out the consequences of the wrong, is a general prin-
ciple of law on which there is broad consensus. Remedies begin with a declaration that a
wrong has been done or is about to be done. The wrongdoer is expected to conform to
the interpretation of the law and decision on the facts, adjusting his actions accordingly.
More broadly, legal systems require restitution of the victims’ legal and material situation to
what it was before the wrong was done. Damages for harm that is incapable of restitution
include: indemnification of material losses such as lost wages and earning capacity; medical,
legal, funeral and incidental expenses; and loss of property. Non-pecuniary damages are
awarded for pain and suffering, fear, humiliation, and other dignitary harms. Where neces-
sary, national and some international courts may order specific non-monetary remedies,
especially to guarantee non-repetition of the acts that constituted the wrong. Deterring
future violations is thus part of the structure of the law of remedies. Punitive or exemplary
damages reinforce the deterrence and enhance the sanctioning element of remedies.
In general, protection of human rights differs from state responsibility for injury to
aliens and from private tort actions. Traditional state responsibility involved inter-state
claims where the state itself was deemed injured. Diplomacy and the respective inter-
ests and power of states often played a role in the type and scope of claims presented,
as well as the outcome of the process. In human rights law, individuals directly seek to
ensure respect for the rights they are guaranteed, including making whole the harm that
has been inflicted on them. The actions they bring are generally retrospective in assess-
ing acts already performed. States parties and/or supervisory organs established by the
relevant treaties have a broader interest in upholding the international rule of law and
prospectively returning the breaching state to compliance with the international norm.
Individual victims are, of course, also interested in future performance, in ensuring that
 Conclusions 433

the breach is not repeated, but they more often focus on what has been done rather than
on future possibilities.
In some cases, applicants are more concerned to know the truth, such as the wherea-
bouts of the disappeared victim, than they are about receiving monetary compensation.
An award of financial compensation, which does not require remedial action as well,
may signal to a government that it is permitted to violate human rights, provided it has
sufficient tax revenues or other resources to pay for the resulting harm. Non-pecuniary
measures serve to reinforce the validity of the obligation breached, forcing the respon-
sible state to acknowledge responsibility. They also provide a measure of satisfaction to
persons injured by the state and serve to send a message to society that the violations will
not be tolerated or repeated.
Compensatory damages should repair all the proximate direct and indirect conse-
quences of the harm caused by the violation. Moreover, with a dual focus on the suffering
of the victim and wrongfulness of government conduct, it seems that moral damages
may partially substitute for punitive damages. Presumed damages for violations of intan-
gible interests, which so often happens in human rights cases, must be awarded. The
object must be to undo what has been done; to halt the wrongful conduct and prevent
its reoccurrence.
With the development of a more coherent law of remedies, it is also necessary to turn
attention to issues of compliance with the remedies indicated by human rights bod-
ies. All international tribunals have expressed concern over ensuring that their views,
decisions, and judgments are made effective and that remedies are afforded to the vic-
tims. UN treaty bodies have established follow-up procedures based on their rules of
procedure1 or treaty provisions.2 Following a decision on the merits of a communication,
the committee involved will urge the state party concerned to provide information on
the steps taken to give effect to the decision within a particular length of time, usually
between three and six months. Based on this information, the committee will adopt
interim reports every session, in which it may qualify the state response as ‘satisfactory’
or ‘unsatisfactory’ or indicate the need to continue a dialogue with the state party.
The UN Human Rights Committee has asserted its implied powers to ensure compli-
ance with its decisions, relying on Article 5(1) of the First Optional Protocol, which calls
on it to ‘consider’ cases. According to the Committee ‘the word “consider” in Article 5,
paragraph 1 of the Optional Protocol need not be taken as meaning consideration of a
case only until the adoption of a final decision, but consideration in the sense of engag-
ing in those tasks deemed necessary to ensure implementation of the provisions of the
Covenant’. It has thus instituted a follow-up procedure to ensure that its recommenda-
tions are followed, calling on states to provide information within ninety days about
the measures taken in connection with the Committee’s views. Indeed, Committee
members have emphasized the close link between good faith fulfilment of the treaty
obligations contained in Article 2(3) of the Covenant and compliance with the views
concerning remedies when a violation has been found in an individual case. In this sense,
the Committee views cannot be seen as mere recommendations and some domestic
courts have implemented them accordingly. In at least one instance, a matter returned

1
  Human Rights Committee, rules 101 and 103; Committee against Torture, rules 112 and 114;
CERD, rule 95.
2
  UN General Assembly, Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination Against Women (adopted 6 October 1999, entered into force 22 December 2000) UNTS
2131, 83, Article 7; UN General Assembly, Optional Protocol to the International Covenant on
Economic Social and Cultural Rights (adopted 5 March 2009), A/RES/63/117, Article 9.
434 Conclusions

to the Committee when the applicant asserted that the remedy provided by the state,
commuting a death sentence to life imprisonment, was inadequate because the original
application concerned the denial of a fair trial. On the new application, the Committee
found a violation of Article 10 and noted ‘with utmost concern the non-compliance of
the state party with the Committee’s recommendation’ of release continued in its earlier
views. The Human Rights Committee has carried out only one onsite follow-up mission
to a state that indicated it was having difficulties in compliance with a large number of
communications decided against it and was also concerned about the length of time the
proceedings were taking.
The aim of follow-up procedures is to monitor and encourage compliance with the
decisions of the treaty bodies, to ensure the credibility and the effectiveness of the com-
plaint procedures. On the positive side, the Human Rights Committee has reported
close to two dozen legislative amendments in various countries in response to the recom-
mendations it has made; on the negative side, there are a large number of states that have
failed to comply and afford the remedies recommended.3 Various reasons are cited from
lack of understanding of the obligations; unwillingness to comply; the non-binding
nature of the committees’ views; divergent interpretations of provisions; lack of commit-
tee follow-up, and lack of capacity. The treaty bodies continue to seek ways to overcome
these hurdles to compliance.
One mode of strengthening compliance would be with regard to awards of compen-
sation; although the Human Rights Committee, CERD and CEDAW have indicated
to states in numerous cases that compensation is due, they do not quantify amounts.
The secretariat has reported that generally, if compensation is provided by the state, the
Committees have considered compliance to be satisfactory without any examination of
the quantum provided the victims.4 This seems unlikely to result in adequate redress for
the victims. Indeed, during a 2011 meeting of an inter-committee working group on
follow-up to individual complaints, a number of experts were of the opinion that treaty
bodies should try to develop better dispositive parts of their decisions on individual
communications, to assist states in adopting an appropriate remedy. In the end, how-
ever, no agreement was reached on suggestions to have a detailed and more specific rem-
edy section in decisions, or to include general recommendations as part of the remedy.5
At the regional level, the first two articles of the American Convention include the
duty to ‘respect the rights and freedoms’ enumerated in the Convention and ‘to adopt
such legislation or other measures as may be necessary to give effect to those rights or
freedoms’. The Commission has interpreted these obligations as imposing a duty on
states to comply with Commission recommendations. In its 1997 Annual Report, the
Commission explicitly urged states to ‘comply with the recommendations made by the
Commission in its reports on individual cases and to abide by the requests of provisional
measures’.6 The Commission said:
The Inter-American Court has indicated that States parties to the American Convention have the
obligation to adopt the recommendations issued by the Commission in its reports on individual

3
  ‘Follow-up procedures on individual complaints: Note by the Secretariat, UN Doc. HRI/ICM/
WGFU/2011/3, para. 25.
4
  Ibid, para. 10.
5
  ‘Report of the Inter-Committee Meeting working group on follow-up to concluding observations,
decisions on individual complaints and inquiries’ UN Doc. HRI/ICM/2011/3; HRI/MC/2011/2,
para. 51.
6
  Inter-American Commission on Human Rights, Annual Report of the IACHR 1997, at Ch. VII,
para. 12, OEA/Ser.L/V/II.98 doc. 6 rev. (1998).
 Conclusions 435
cases, in the light of the principle of good faith. This obligation extends to the member states in
general, provided that, pursuant to the OAS Charter, the Commission remains one of the main
organs of the Organization with the function of promoting the observance and defense of human
rights in the hemisphere. Accordingly, the Commission urges the member States, whether they
are parties to the American Convention or not, to fulfill their international obligations by follow-
ing the recommendations issued in the reports on individual cases and abiding by the requests of
provisional measures.7
The Commission invited states ‘to adopt legal mechanisms for the execution of the
recommendations of the Commission in the domestic sphere’8 and some states have
done so.9 The Commission began a practice of reporting on compliance with its rec-
ommendations in individual cases in its Annual Report for 2001. Most of the results
show partial compliance with a few showing full compliance. Administration of justice
appears to be the most problematic area for states.
The orders of the African Commission on Human and Peoples’ Rights are wide rang-
ing in scope, but commentators argue that the impact of the measures has been minimal
due to a lack of political will on the part of states as well as the lack of a serious follow-up
mechanism within the Commission.10 The Commission often asks states to report
on compliance, but they rarely do. Nigeria did submit a report in 2007, on the Legal
Resources Foundation case,11 but failed to mention any measures taken to comply with
the Commission’s recommendations. In Lawyers for Human Rights v. Swaziland,12 the
Commission requested a report on measures taken to implement the Commission’s deci-
sion within six months. When the Swazi government failed to report to the Commission
in accordance with this directive, the Commission issued an unusual public rebuke in its
2012 Resolution on the Human Rights Situation in the Kingdom of Swaziland, express-
ing its alarm at the failure of the Swazi authorities to implement the Commission’s
decision in the case. The Resolution again called upon the Kingdom of Swaziland to
implement the decision of the African Commission and to submit a report on the status
of implementation as well as implement the recommendations of the promotional visit.
The lack of compliance by states parties and the Commission’s reluctance to press fur-
ther are cause for concern, but the Commission is no doubt aware of the sad fate of the
Southern African Development Community’s court, which was suspended after issuing
a strong judgment against Zimbabwe.
In 2006, the African Commission adopted a Resolution on the Importance of the
Implementation of the Recommendations of the African Commission on Human and
Peoples’ Rights by States Parties, requesting states to ‘indicate the measures taken and/

7
 Ibid. 8
  Ibid, para. 13.
9
  Colombia, in law 288/96, established a mechanism to require the government to pay dam-
ages resulting from human rights violations found by the UN’s International Committee on Civil
and Political Rights and/or the institutions of the Inter-American system. Peru’s Law No. 23506 on
amparo as well as that on habeas recognizes the binding nature of the IACHR measures. Article 15 of
the Honduran Constitution proclaims the validity and mandatory execution of international judicial
decisions. In Costa Rica, the headquarters agreement between it and the Inter-American Court pro-
vides that decisions of the Court or its president have the same effect as judgments handed down by
the domestic judiciary upon their transmission to the domestic administrative and judicial authorities.
10
  In order to address the latter situation, the Commission suggested in Legal Resources Foundation
v. Zambia, Purohit and Moore v. the Gambia and Interights et al. (on behalf of Mariette Sonjaleen Bosch)
v. Botswana, that states parties provide information on compliance with its recommendations in their
periodic state party reports.
11
  African Commission on Human and Peoples’ Rights, Legal Resources Foundation v.  Zambia,
Comm. No. 211/98 (2001).
12
  African Commission on Human and Peoples’ Rights, Lawyers of Human Rights v.  Swaziland
(2005) 37th Ordinary Session, 27 April—11 May 2005, Banjul, Gambia.
436 Conclusions

or the obstacles in implementing the recommendations of the African Commission

within a maximum period of ninety (90) days starting from the date of notification of
the recommendations’. There has been little positive response from governments and the
Commission has failed to submit at every session of the Executive Council a report on
the situation of the compliance with its recommendations by the state parties (annexed
to its Annual Activity Report) as required by the 2006 Resolution. In Institute for Human
Rights and Development in Africa v. Republic of Angola, the Commission simply requested
that the government of Angola report back at ‘a later stage’, rather than the more usual six
months. The lack of compliance and follow-up in relation to the Commission’s decisions
risks undermining its credibility and further action needs to be taken.
Within Europe, it is relatively easy to demonstrate the past effectiveness of the
European Convention and Court judgments:13 Austria, for example, has modified
its Code of Criminal Procedure;14 Belgium has amended its Penal Code, its laws on
vagrancy and its Civil Code;15 Germany has modified its Code of Criminal Procedure
regarding pre-trial detention, given legal recognition to transsexuals, and taken action
to expedite criminal and civil proceedings;16 The Netherlands has modified its Code
of Military Justice and the law on detention of mental patients;17 Ireland created a sys-
tem of legal aid;18 Sweden introduced rules on expropriation and legislation on build-
ing permits;19 Switzerland amended its Military Penal Code and completely reviewed
its judicial organization and criminal procedure applicable to the army;20 France has
strengthened the protection for privacy of telephone communications.21 According to
Thomas Buergenthal, ‘the decisions of the European Court are routinely complied with
by European governments. As a matter of fact, the system has been so effective in the
last decade that the Court has for all practical purposes become Western Europe’s con-
stitutional court. Its case law and practice resembles that of the United States Supreme
Court’.22
Article 46(2) of the Convention empowers the political Committee of Ministers
to ensure the enforcement of judgments of the European Court of Human Rights. To
do so, the Committee has adopted rules specifying that as soon as a judgment of the
Court has been transmitted, it shall be inscribed on the Committee’s agenda. The state
concerned must then inform the Committee what steps it has taken to comply with
the judgment. If the state has not taken the requisite action, the case is automatically
placed on the Committee’s agenda for consideration by it six months forward. When

13
  The Committee of Ministers maintains a record of the general and individual measures taken
in response to judgments of the European Court. The links are found at http://www.coe.int/t/dghl/
monitoring/execution/Documents/MGindex_en.asp.
14
  See European Court of Human Rights, Neumeister v. Austria (1968) Application No. 1936/63;
Stogmuller (1969) Series A No. 9; Matznetter v. Austria (1969) Application No. 2178/64; Ringeisen
v. Austria (1971) 1 EHRR 455; and Bonisch (1985) Series A No. 92.
15
  European Court of Human Rights, De Wilde, Ooms and Versyp (Vagrancy cases) (1971) Series A No.
12 and Marckx (1979) Series A No. 31 (discrimination between legitimate and illegitimate children).
16
  See e.g. European Court of Human Rights, Luedicke, Belkacem and Koc (1978) Series A No. 29
(interpreters’ fees).
17
  European Court of Human Rights, Engel and others v. The Netherlands (1976) Series A No. 22
(military penal code) and Winterwerp v. The Netherlands (1979) Series A No. 33 (mentally ill).
18
  European Court of Human Rights, Airey v. Ireland (1979) Series A No. 32.
19
  European Court of Human Rights, Sporrong and Lonnroth v. Sweden (1985) Series A No. 88.
20
  Eggs v. Switerland, Committee of Ministers, Res. D.H. (79) 7 of 19 Oct. 1979.
21
  European Court of Human Rights, Kruslin v. France (1990) Series A No. 176A; Huvig v. France
(1990) Series A No. 176B.
22
 T. Buergenthal, ‘International Human Rights Law and Institutions:  Accomplishments and
Prospects’ (1988) 63 Wash. L. Rev. 1.
 Conclusions 437

the state informs the Committee that it has paid a sum awarded in just satisfaction,23
the Committee adopts a resolution indicating that it has satisfied itself that the sum was
awarded and that it has exercised its mandate in the case.24
If the Court’s judgment finds that certain national laws or practices are in conflict
with the Convention, compliance usually takes more time, because the domestic leg-
islative process can be lengthy.25 When amendments or new legislation is adopted, the
Committee may be unable on its own to determine whether the legislative measures in
fact fully comply with the Convention and the Court’s earlier judgment.26 Article 46(3),
amended by Protocol 14, attempts to cure this problem by allowing the Committee by a
two-thirds vote to refer the matter to the Court for a ruling on the question of interpre-
tation of the judgment, but it is not clear if the Court will review new legislation under
this provision.
The current European institutions have demonstrated an unwillingness to put pres-
sure on recalcitrant states that refuse to implement judgments. Of the 69,900 cases
pending at the beginning of 2014, 34,000 were repetitive cases, meaning the states
involved had not addressed the underlying problem.27 Nearly half of these cases concern
just three states: Italy; Russia; and the Ukraine. Turkey was responsible for another 13.6
per cent. Clearly, the Court and Committee of Ministers have failed to obtain the neces-
sary cooperation from these states and more action needs to be taken in ways that do not
further disadvantage applicants or restrict their access to the Court.
The Committee is facing difficulties in ensuring states’ compliance with judgments.
It has reported an increase in cases having ‘important’ execution issues and has taken
some actions in response. It amended its rules in 2006 after the adoption of Protocol No.
14 to give priority to judgments revealing an underlying systemic problem. It also pro-
vided that documents submitted by a party, the applicant, NGOs, or national human
rights institutions should in principle be made public. Rules 10 and 11 determine when
a case may be referred to the European Court for interpretation of a judgment or for
infringement proceedings.

23
  Payments made after the deadlines set are the exception and there is a high level of compliance
with monetary awards. In 2012, 1,363 payments were carried out within the deadline; 254 were late,
and there was no information about 976. The previous year, 1,511 were on time, 300 were late, and
1,301 lacked information. Taken together, over the two-year period, 2,874 payments were made in a
timely manner, 554 were late, and facts for 2,077 were unknown. For 2013, the figures are similar: 1142
payments within the deadline; 191 were outside; and 938 had no information. Most of those late were
in cases from Italy and Turkey.
24
  Committee of Ministers, Res. D.H. (85) 14, 28 June 1985 concerning the judgments of the
European Court of Human Rights of 10 February 1983 and 24 October 1983 in the Albert and Le
Compte cases, Council of Europe, Collection of Resolutions Adopted by the Committee of Ministers in
Application of Articles 32 and 54 of the European Convention on Human Rights 1984–85 [hereinafter
cited as Committee of Ministers Resolutions] (1086), 38–9. See also Res. D.H. (2000) 105 concerning
the judgments of the European Court of Human Rights of 18 December 1996 and 28 July 1998 in the
case of Loizidou v. Turkey.
25
  See, e.g., Committee of Ministers, Final Res. D.H. (89) 31 (concerning the judgments of the
European Court of Human Rights of 21 February 1984 and 23 October 1984 in the Öztürk Case,
Committee of Ministers Resolutions, 86–7 (Supp. 1988–9)). Some countries do respond quickly. After
Autronic AG v. Switerland, Res. (91) 26 of 18 Oct. 1991, the government amended an ordinance retro-
actively to 22 May 1990, the day following delivery of the judgment. Following Sorensen and Rasmussen
[GC] 11 January 2006, on freedom of association, the Danish government tabled a bill less than a
month after publication of the judgment; it came into force on 29 April 2006.
26
  On this subject, see A.H. Robertson and J.G. Merrills, A Study of the European Convention of
Human Rights (Manchester, 1993), 340–1; Committee of Ministers Res. D.H. (82) 2, 24 June
1982, concerning the judgment of the European Court of Human Rights of 24 October 1979 in the
Winterwerp Case, Committee of Ministers Resolutions 1959–1983, 128–9 (1984).
27
  European Court of Human Rights, Annual Report 2014, Foreword.
438 Conclusions

In 2013, 114 cases in 27 states ‘were the object of a more detailed examination with a
view to assist execution’. For enhanced supervision, main case groupings included cases con-
cerned with domestic remedies including restitution or compensation of confiscated prop-
erties (Albania, Romania); failure to execute final judicial decisions (Azerbaijan, Bosnia and
Herzegovina, Russia, Serbia, Ukraine); excessive length of proceedings (Belgium, Bulgaria,
Greece, Italy, Moldova, Poland, Portugal, Romania, Ukraine), lack of investigation of
war crimes or excessive use of force by police (Croatia, Georgia, Romania, Russia, Turkey,
Ukraine, United Kingdom). The countries with the most cases in enhanced supervision are
also those with the highest number of pending and repetitive cases: Russia, Turkey, Bulgaria,
Italy and Ukraine.
In some instances there is a visible backlash by several states that have challenged the
authority of the Court’s judgments with regard either to just satisfaction or to specific meas-
ures required by the judgments. Given these problems, and the increased caseload of the
Court, the Committee is also facing a growing backlog, with the result that not all cases are
receiving the necessary attention. States also sometimes wear down the Committee through
lengthy delays. In the case of Pauwels v. Belgium, the Committee waited thirteen years for
a legislative reform that was not enacted, in the end adopting a final resolution relying
on evidence that the national courts would avoid any new violations.28 Because of such
delays in the adoption of general measures, the Committee has been emphasizing the need
to adopt interim remedial measures, including dissemination of the judgment. It has also
employed stronger language against states. In regard to seven judgments against Austria
issued between 1997 and 2002, the Committee said that it ‘deplored’ the time that had
passed without legislative change but noted that ‘in the interim, domestic courts’ compli-
ance with the European Court’s judgments had been ensured by the latter’s wide publication
and dissemination and their direct effect in Austrian law’.29
The ultimate sanction available to the Council of Europe would be expulsion of the
state under the Statute, Article 8. It has never been seriously considered since the mili-
tary coup in Greece in the late 1960s. In the case of Ilaşcu and others v. Moldova and the
Russian Federation,30 the Committee’s fourth interim resolution recalled this possibil-
ity, however, reminding the state that ‘the obligation to abide by the judgments of the
Court is unconditional and is a requirement for membership of the Council of Europe’.
The Committee further declared its ‘resolve to ensure, with all means available to the
Organisation, the compliance by the Russian Federation with its obligations under this
judgment’. The resolution then called upon the authorities of the member states ‘to take
such action as they deem appropriate to this end’.31 The Finnish Delegation on behalf
of the European Union and with the support of 14 other countries issued a statement
recalling the requirement to execute the judgment, lamented the effect of this failure to
execute judgment on the credibility of the Council of Europe and the European Court
of Human Rights and called for the Committee’s resolution to be drawn to the attention
of the UN and OSCE.
The Inter-American Court does not close a case until there has been full compliance
with all remedial orders and awards32 although neither the American Convention, nor

28
  See Res. D.H. (2001) 67 of 26 June 2001. 29
  Res. D.H. (2006) 2 of 22 Feb. 2006.
30
 European Court of Human Rights, Ilaşcu and Others v.  Moldova and Russia [GC] (2004)
Application No. 48787/99.
31
  Res. D.H. (2006) 26 of 10 May 2006.
32
  On 6 September 1996, the Court ordered the Velásquez-Rodríguez and Godínez-Cruz cases closed
after it found that the government had complied with the reparations orders. Velásquez-Rodríguez Case,
Inter-Am.Ct.H.R. Order of 10 Sept. 1996, reprinted in Annual Report of the Inter-American Court of
 Conclusions 439

the Court’s statute and rules of procedure indicate a specific procedure that should be
followed to ensure compliance with the Court’s judgments. The Court has generally
used a written procedure, which consists in having the responsible state present reports
as requested by the Court. The Court also issues orders or sends communications to
the responsible state to express its concern in relation to aspects of the judgment for
which compliance remains pending, to urge the state to comply, and to request detailed
information on the measures taken to comply with specific orders of reparation. Such
communications may provide instructions for compliance and clarify aspects relating
to the execution and implementation of reparations measures when there is a dispute
between the parties. In some instances, the Court holds hearings33 and has even made
on-site visits to discuss compliance.
In Baena-Ricardo,34 Panama challenged the competence of the court to monitor com-
pliance with its decisions. The Court rejected the challenge, noting that the Convention
itself in Article 67 requires states parties to comply promptly and fully. In addition, Article
68(1) stipulates that states parties undertake to comply with judgments. According to
the Court, these provisions correspond to the basic principle of pacta sunt servanda and
mean that the obligation to repair is completely regulated by international law and may
not be modified by provisions of domestic law. The Court added that Article 63(1),
incorporates ‘one of the fundamental principles of the law of the international respon-
sibility of states’, which grants it a wide margin of discretion to determine the measures
necessary to repair all consequences of the violation.35 States in turn must ensure that the
rights guaranteed are effective in practice. The Court emphasized:
‘When it has determined the international responsibility of the State for violation of the American
Convention, the Court proceeds to order measures designed to remedy this violation. Its juris-
diction includes the authority to administer justice; it is not restricted to stating the law, but also
encompasses monitoring compliance with what has been decided. It is therefore necessary to
establish and implement mechanisms or procedures for monitoring compliance with the judicial
decisions, an activity that is inherent in the jurisdictional function. Monitoring compliance with
judgments is one of the elements that comprises jurisdiction. To maintain otherwise would mean
affirming that the judgments delivered by the Court are merely declaratory and not effective’.36
In other words, without compliance, the raison d’être for the functioning of the Court
would be imperilled.
As to other legal grounds for the Court to monitor compliance, the Court finds
this power derived from taking together Articles 33, 62, and 65 of the Convention. In
this respect, the Court contrasts its powers with those contained in Article 46 of the
European Convention on Human Rights, concerning the role of the Committee of
Ministers. The Court noted that the drafters of the American Convention chose not to
follow the European model but instead provide in Article 65 that the Court must indi-
cate the cases in which a state has not complied with its judgments, with the pertinent
recommendations of the Court. The Convention thus establishes the legal grounds for
the Court to supervise compliance.

Human Rights (1996), OAS/ser.L/V/III.35, doc. 4 (1997) at 209: Godínez-Cruz Case, Annual Report
(1996), supra, 213.
33
  In the El Amparo Case, in its order of 20 November 2000, the Court indicated that ‘it considered it
necessary’ to convene the parties to a public hearing on compliance with the judgment. Inter-American
Court of Human Rights, El Amparo Case (1996) Series C No. 28.
34
  Inter-American Court of Human Rights, Baena-Ricardo et al. v. Panama (2001) Series C No. 72.
35
  Ibid, para. 65. 36
  Ibid, para. 72.
440 Conclusions

A quantitative study of remedies in the Inter-American system found total com-

pliance in thirty-six per cent of cases, partial compliance in fourteen per cent and
non-compliance in fifty per cent.37 As in the European system, the highest level of com-
pliance was in fulfilling orders of monetary compensation, followed by symbolic meas-
ures like memorials. As might be expected, the least level of compliance came in regard
to orders of investigation, prosecution, and punishment,38 followed by legal reforms.
The negotiation process that leads to friendly settlements also seems to produce more
compliance. The general average time period for compliance is about a year and eight
months for Court judgments and two years seven months for merits determinations of
the Commission. Unlike the situation in Europe, where a few recalcitrant governments
appear unwilling to comply, the lower level of compliance in the Inter-American system
may be more attributable to the very comprehensive nature of the remedies that are
sometimes ordered. In many cases, the Court requires the investigation and prosecution
of all the intellectual and material authors of crimes that implicate high-ranking military
officials and powerful political figures, making it difficult for governments to comply.39
Even where the situation is less threatening, local prosecutorial and judicial authorities
often have limited investigative capacity, resources, and the will to prosecute sensitive
cases from the past. Without strengthening domestic structures, orders to investigate
and prosecute will likely have limited impact.
During 2013, the world community marked the sixty-fifth anniversary of the adop-
tion of the Inter-American Declaration of the Rights and Duties of Man, the Genocide
Convention, and the Universal Declaration of Human Rights. The development of
human rights law during this period has been remarkable. It is a reflection of how far the
law has progressed that the issue of remedies for international human rights violations
is now current. At the outset, there were no complaint mechanisms, no procedures, and
little law to restrain a state from abusing those within its power. The law has developed,
procedures have proliferated, and individuals may now seek to hold accountable those
who commit human rights violations. The development of a consistent and coherent law
of remedies is part of the process of enhancing the effectiveness of human rights law in
looking to the future. Much has been accomplished, but the work is far from complete.

37
 Fernando Basch et  al., ‘The Effectiveness of the Inter-American System of Human Rights
Protection:  A  Quantitative Approach to its Functioning and Compliance with its Decisions’, Sur,
v. 7(12) June 2010, 9–35.
38
  Of the fifty-four judgments that have demanded investigation and prosecution, only one has been
deemed fulfilled: Castillo-Páez v. Peru. See Inter-American Court of Human Rights, Castillo-Páez v. Peru
(2009) Series C No. 43 (Order on Supervision of Compliance with Judgments).
39
  See e.g., Inter-American Court of Human Rights, Carpio-Nicolle v. Guatemala (2009) Series C
No. 117 (Judgment of 6 July 2009) (Order on Provisional Measures) available at http://www.corteidh.
or.cr/medidas.cfm.
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Guidance Note of the Secretary-General on the United Nations Approach to Transitional Justice,
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Fundacion Ideas para la Paz, Siguiendo el Conflicto, Hechos y Ancilisis, Bogota, No. 50, June 2007
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Cambridge, MA, Harvard Law School Human Rights Program, 1997
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Human Rights Watch Policy Paper on the Interrelationship between the Sierra Leone Special Court
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IDEA, Reconciliation after Violent Conflict, A Handbook, Stockholm, 2003
International Center for Transitional Justice (Hirst, M.), Too Much Friendship, Too Little Truth,
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UN SECURITY COUNCIL
Resolutions
Security Council Resolution No. 827 Establishing the ICTY, UN Doc. S/RES/827, Adopted 25
May 1993
Security Council Resolution No. 955 Establishing the ICTR, UN Doc. S/RES/955, Adopted
8 November 1994
Security Council Resolution No. 1272 on the Situation in East Timor, UN Doc. S/RES/1272,
Adopted 25 October 1999
Security Council Resolution No. 1315, Requesting the Secretary-General to Negotiate an Agreement
with the Government of Sierra Leone to Create an Independent Special Court, UN Doc.
S/RES/1315, Adopted 14 August 2000
Security Council Resolution No. 1325 on Women, Peace and Security, UN Doc. S/RES/1325,
Adopted 31 October 2000
Security Council Resolution No. 1593 on Referral of the Situation in Darfur to the ICC, UN Doc.
S/RES/1593, Adopted 31 March 2005
Security Council Resolution No. 1769 on the Establishment of UNAMID, UN Doc. S/RES/1769,
Adopted 31 July 2007
Security Council Resolution No. 1888 on Sexual Violence and Armed Conflict, UN Doc.
S/RES/1888, Adopted 30 September 2009
Security Council Resolution No. 1969 on the Situation in Timor-Leste, UN Doc. S/RES/1969,
Adopted 24 February 2011
 Index
Access to justice deprivation of liberty╇ 151–152
see also Exhaustion of domestic remedies; evolution of law╇ 6
Standing injury to property╇ 152–156
African Charter on Human and Peoples’ interest on awards╇ 156
Rights╇72 overview╇142–146
business-related abuses╇ 57–58 satisfaction╇156–162
ECHR╇68 state responsibility╇ 35
European Union Charter of Fundamental US corporate defendants╇ 56–57
Rights╇70 wrongful death╇ 146–151
Inter-American system╇ 72 American Convention on Human Rights╇ 66,
international humanitarian law╇ 82 71, 72, 112, 224, 228, 296,€431
international standards╇ 96–100 American Declaration of the Rights and Duties
key obligation╇ 17–18 of Man╇ 20, 66, 71, 72,€209
UN declarations and non-treaty texts╇ 75 Amparo╇ 195
Act of state╇ 56 Anzilotti, D.╇ 33,€34,€35
Actio popularis╇ 249,€256 Apartheid╇ 117, 118, 263, 264, 267, 273,€275
Actuaries╇ 337,€363 Apology
Administrative reparations programs╇ 122–125 historical injustices╇ 268, 275
Administrative tribunals╇ 49, 142, 175–178, temporal jurisdiction╇ 268–270
418,€421 Arbitral claims see Alien claims
Advisory opinions╇ 163, 296,€297 Argentina╇ 97, 98, 104, 110, 117, 122, 124,
Affirmative action╇ 78, 79, 263, 267, 276,€390 125, 135,€371
African Charter on Human and Peoples Arguable claim╇ 16, 17, 68, 94, 109,€241
Rights╇ 66, 72, 73, 164, 232, 233,€237 Aristotle╇ 19
African Court on Human and Peoples’ Armed conflicts
Rights╇ 233, 237, 384,€459 international humanitarian law╇ 82
African system reparation following
declaratory judgments╇ 297 Ethiopia/Eritrea arbitration╇ 187–190
exhaustion of domestic remedies╇ 93–94 lump sum settlements╇ 180–183
impact of new legal mechanisms╇ 435–436 overview╇178–180
independent judiciary╇ 101 UNCC╇183–187
jurisdiction and competence╇ 232–238 Attachment╇ 330,€345
non-monetary awards Australia╇ 263, 302,€303
scope of awards╇ 384, 388–390 Austria╇ 353,€436
state practice╇ 380–383
presentation of claims Bassiouni, Cherif╇74
continuing violations╇ 262 Bilateral investment treaties (BITs)╇ 53
historical injustices╇ 264, 271–272 Borchard, E.M.╇ 36, 37, 82, 142, 157, 158,
overview╇259–260 161,€179
regional treaties╇ 72–73 Botswana╇ 265, 287,€303
right to truth╇ 114–115, 116 Breaches of obligation╇ 13–14
standing to make collective claims╇ 249 Buergenthal, Thomas╇ 7, 228, 296,€436
‘victims’╇247 Business enterprises
Aggravated damages╇ 320, 402, 406, 410,
411,€414 Calebresi, Guido╇22
Albania╇ 124, 125, 159,€438 Cambodia╇ 121
Alexandria, library╇ 298,€299 Canada╇ 27, 73, 260, 263, 269, 272, 302, 381,
Alien claims 405,€410
468 Index
Cançado-Trindade, Antonio  20, 230, 416 evidence and presumed harm  355–363
Causality evolution of law  3–6
precondition of resulting harm  14–15 following armed conflict
presentation of claims  279–280 Ethiopia/Eritrea arbitration  187–190
state responsibility  39–40 lump sum settlements  180–183
Cessation UNCC 183–187
International Court of Justice (ICJ)  167 historical injustices  269–270
state responsibility  38 inflationary discounting  371–374
UN declarations and non-treaty texts  75 interest on awards  374–375
Character  151, 293, 294, 354, 358 International Court of Justice
Chayes, A.  378, 399 (ICJ) 164–166
Chile  113, 124, 125 international humanitarian law  83
China  29 international practice
Civil law  27, 285, 317, 347, 370, 371, ECtHR 321–326
408, 419 Inter-American system  326–330
Class action  57, 126, 136, 182, 243, 264, non-pecuniary damages
356, 423 equitable nature of awards  350–354
Colonialism  78, 79, 263, 265, 266, 271–273 nature of injury  348–350
Committee of Ministers  206–207, 210–214, overview 346–348
217–220, 229, 250, 287, 289, 308, 343, overview 315–316
364, 386–387, 412, 436–439 part of restorative justice  26
Committee on Conventions and pecuniary damages
Recommendations  204, 265 meaning and scope  330
Committee on Economic, Social and Cultural valuation 331–346
Rights  80, 98, 99, 102, 103, 105, 106, procedural violations  364–369
188, 219 purpose 433
Committee on Migrant Workers  102 purpose of remedies  19–20
Committee on the Elimination of state practice  316–321
Discrimination against Women  81, state responsibility  41
199, 202 taxation 375
Committee on the Elimination of Racial UN declarations and non-treaty texts  76
Discrimination  202, 203, 303, 306, 347 Compensatory justice  5, 13, 23, 24, 29,
Committee on the Right to Reparation for 91, 287
Victims of Armed Conflict  249 Competence see Jurisdiction and competence
Committee on the Rights of Persons with Complaints procedures  2, 69, 93, 191, 390
Disabilities  202 Condemnation  14, 20–21, 417
Committee on the Rights of the Child  80, Continuing violations  79, 130, 217, 261–262
98, 106 Convention on the Elimination of All Forms of
Commodification  29 Discrimination against Women  63, 65
Common law  27, 33, 137, 139, 276, 285, 302, Convention on the Rights of the Child  45,
380, 403, 404, 409, 421 54, 64, 65
Communities Costa Rica  273, 435
benefits from historical injustices  275 Costs and fees
dignitary harm  14–15 EU system  424–429
standing to make collective claims  249–254 impediment to access to justice  98–99
Compensation Inter-American system  429–431
see also Non-monetary awards; Reparation restitutionary arguments  422–424
administrative reparations state practice  421–422
programs 122–125 Courts see International courts
conclusions 375–376 Criminal law see International criminal law
distribution of awards  369–371 Cultural property  298–301
European Social Charter  69 Customary law see State practice
 Index 469
Damages Dignitary harm
aggravated damages  320, 402, 406, 410, moral damages  319–320
411, 414 precondition to claim  14–15
hedonic damages  76, 331, 348 Disappearances  73, 84, 107–115, 118, 132,
nominal damages  140, 189, 320, 356, 136, 193, 201, 235, 245, 253, 326, 334,
363, 407 352, 387–392, 430
non-pecuniary damages Domestic jurisdiction  50, 431
equitable nature of awards  350–354 Domestic remedies see Exhaustion of domestic
nature of injury  348–350 remedies; International standards
overview 346 Due diligence  13, 35, 55, 335
pecuniary damages Due process  49, 72, 76, 83, 92–96, 100–105,
meaning and scope  330 109, 111, 124, 140, 177–178, 200, 212,
valuation 331–346 237, 253, 312, 398, 431
punitive damages
see also Punitive damages Eagleton, C.  33, 86, 157
conclusions 419–420 Economic analysis  13, 27–30, 41, 76, 153, 338
effects of ruling  402–403 Ecuador  306
elements of compensation  403 Effective access see Access to justice
enterprise liability  408–410 Egypt  273, 298, 299
jurisprudence 410–419 El Salvador  117, 382
practice and procedure  403–408 Elimination of All Forms of Discrimination
state responsibility  41 against Women  63, 65
Death row phenomenon  293 Enforcement of judgments
Declaration of Basic Principles of Justice business enterprises  52
for Victims of Crime and Abuse of converting law into results  30–31
Power  85, 194 European system  436–438
Declarations  73–81 impact of new legal mechanisms in
Declaratory judgments Africa 435–436
advantages 286 increasing focus of attention  433–435
effects 285 Inter-American system  438–440
importance 286–287 international organizations  48–49
inter-state disputes  285 international standards  120
national law  285–286 Enjoyment of life  76, 230, 331, 347, 351
practice and procedure Enterprise liability  63, 91
African system  297 Enterprise liability  408–410
ECtHR 287–294 Ethiopia  137, 165, 180
Inter-American system  295–297 Ethiopia/Eritrea arbitration  187–190
state practice  287 European Commission on Human Rights  206
Delay see Timely and expeditious proceedings European Committee for the Prevention of
Denial of justice  6, 7, 17, 36, 80, 86, Torture and Inhuman or Degrading
148, 149 Treatment or Punishment  51
Denmark  264, 268, 269, 317 European Committee on Social Rights  69
Deprivation of liberty European Convention on Human Rights
alien claims  151–152 (ECHR)  66, 67–69, 71, 92, 95, 191, 192,
restitution claims  305–306 205, 207, 217, 222, 364
valuation of damages  345–346 European Convention on the Compensation of
Deterrence Victims of Violent Crime  6, 84, 295, 330
see also Punitive damages European Court of Human Rights (ECtHR)
compensation 320 declaratory judgments  287–294
evolution of law  2–7 jurisdiction and competence  205–207
‘law and economics’ theories  28 European Court of Justice  51, 71, 220–224,
purpose of remedies  22 295, 351, 374, 375
470 Index
European Social Charter survivability of claims  254–255
jurisdiction and competence  219–220 ‘victims’  243–244, 247–248
regional treaties  69–70 European Union Charter of Fundamental
European system Rights  70–71
compensation awards  321–326 Evidence
costs and fees  424–429 presentation of claims  281–282
declaratory judgments  288–295 presumed harm  355–363
enforcement of judgments  436–438 Exemplary damages see Punitive damages
evidence and presumed harm  356–362 Exhaustion of domestic remedies
exhaustion of domestic remedies  92–93 see also Access to justice
inflationary discounting of African system  93–94
compensation 372–373 burden of proof  93
international standards conclusions 140–141
access to justice  96–97 denial of access under ECHR  92–93
enforcement of judgments  120 overlap of functions  91–92
fair proceedings  105 overview 89–91
investigations, prosecution and Expropriation  53, 154, 155, 161, 259, 310,
punishment 108–109 340, 345, 357, 372, 436
redress 106
right to truth  114 Fair hearings
timely and expeditious proceedings  102–103 ECHR 68
non-monetary awards Inter-American system  72
satisfaction 396 international standards  104–106
scope of awards  384–388 key part of access to justice  17–18
non-pecuniary damages Fair market value  42, 153–155, 333
equitable nature of awards  351 Fault  19, 39, 40, 90, 269, 320, 402
nature of injury  348–349 Fees see Costs and fees
overview 346 Feller, A.H.  143
pecuniary damages Finland  5, 90
deprivation of liberty  346 Fiss, Owen  62, 384
property claims  337–345 Fitzmaurice, G.  36
valuation 330 France  144, 159, 160, 183, 219, 220, 266,
pecuniary damages for loss of life  334–336 286, 366, 436
presentation of claims Friendly settlement  203, 213, 225, 258, 440
causality 279–280
continuing violations  262 Garcia-Amador, F.V.  32, 34, 37, 144, 157
historical injustices  266–267 Genocide  26, 44, 54, 83, 84, 118, 129, 137,
overview 257–259 167, 263, 265, 274, 282
procedural violations  364–369 Genocide Convention  249, 440
punitive damages Goldstone, Richard  117
jurisprudence  410–414, 417–418 Graefrath, B.  33, 157
practice and procedure  404–405 Greece  90, 219, 220, 299, 320,
regional human rights system 366, 438
cases before ECtHR  207–219 Gross and systematic violations
establishment under ECHR  205–207 administrative reparations
European Court of Justice  220–224 programs 122–125
European Social Charter  219–220 availibility of judicial remedies
responsibility of international mass claims procedures  135–140
organizations 46 overview 126
restitution special tribunals  126–135
jurisprudence 307–311 overview 120–122
land claims  303–304 Grotius  33, 34, 145
 Index 471
Guarantees of non-repitition Inter-American system
International Court of Justice (ICJ)  163 administrative reparations programs  122–125
underlying principles  397–399 compensation awards  326–330
Guatemala  117, 252, 254 costs and fees  429–431
Guatemala-Unidad Agreement  117 declaratory judgments  295–297
distribution of awards  369–371
Habeas corpus  68, 193–195, 382, 398 enforcement of judgments  438–440
Hammurabi, Code of  3, 403 evidence and presumed harm  356–362
Harm inflationary discounting of
claims by communities and peoples  250 compensation 373–374
evidence and presumed harm  355–363 international standards
precondition to claim  14–15 access to justice  97–99
recognized types of damage  278–279 enforcement of judgments  120
Hedonic damages,  76, 331, 348 fair proceedings  105
Historical injustices  263–268 independent and impartial judiciaries  102
HIV-AIDS  244, 323, 380, 381 investigations, prosecution and
Homosexuality  286, 291 punishment 109–111
Humiliation  42–43 right to truth  113, 115–116
Hungary  125 timely and expeditious proceedings  103–104
jurisdiction and competence  224–232
ILA Committee on Accountability of non-monetary awards
International Organisations 46 guarantees of non-repitition  397–399
Immunities rehabilitation 394–396
international organizations  50–51 satisfaction 396–397
state responsibility  44 scope of awards  390–394
Independent and impartial non-pecuniary damages
judiciaries  100–102 equitable nature of awards  351–354
India  89 nature of injury  349–350
Indigence  98 overview 346
Indigenous peoples pecuniary damages
land claims  301–303 deprivation of liberty  345
redressable injury  278–279 loss of life  336–337
restitution 312–313 overview 331
right to truth  119 property claims  345
standing to make collective claims  249–254 presentation of claims
UN declarations and non-treaty causality 280
texts 76–77 continuing violations  262
Indonesia  162, 202 evidence 281
Inflation  155, 318, 331, 333, 336, 345, historical injustices  263–264, 266–268,
371–374, 375 273–274
Inherent powers  178, 385 overview 259
Injunction  17, 30, 31, 58, 62, 91, 285, punitive damages
377–379, 383, 384, 424 jurisprudence  414–417, 418–419
Injured parties see Standing; Victims practice and procedure  404
Injury to property see Property claims regional treaties  71–72
Insurance  20, 30, 91, 147, 264, 278 restitution
Inter-Amercan Court of Human Rights jurisprudence  307, 311–314
(IACHR) land claims  304
Inter-American Commission on Human liberty 305–306
Rights  60, 66, 109–115, 122, 224, 225, specificity of human rights law  59
259, 336, 390, 429 survivability of claims  255–256
Inter-American Development Bank  175 ‘victims’ 244–247
472 Index
Inter-Governmental Committee for International Criminal Tribunal for
Refugees  181 Rwanda  8, 84, 168
Interest on awards International Criminal Tribunal for the former
alien claims  156 Yugoslavia  8, 84, 167
general principles  374–375 International human rights law
state responsibility  42 business enterprises  51–58
Intergovernmental organizations  37 effects of sudden development  2
International Committee of the Red Cross  83, evolution of law of remedies  2–7
113, 181 fundamental aims 1
International Convention for the Protection importance 85–86
of All Persons from Enforced innovative approach to new subject  7–10
Disappearance  65, 67, 241 responsibility
International Court of Justice (ICJ)  8, 10, 37, international organizations  44–51
59, 162–167, 296, 327 state responsibility  32–44
International courts International humanitarian law
EU regional human rights system arguments for restorative justice  24
ECtHR 207–219 as source of law  81–83
European Court of Justice  220–224 International Labor Organization (ILO)  175,
ICC 204–205, 418
causality 281 International Law Commission  37, 47, 416
establishment 167–168 International organizations
evidence 282 administrative tribunals  175–178
reparations principles  170–175 responsibility 44–51
ICTR 168 standing 244
ICTY 168 International standards
International Court of Justice (ICJ)  162–167 access to justice  96–100
International Criminal Court (ICC) enforcement of judgments  120
‘victims’ 242 fair proceedings  104–106
International Criminal Courts independent and impartial judiciaries  100–102
ICC 167–168 investigations, prosecution and
ICTR 168 punishment 107–112
ICTY 168 overview 94–96
Rome Statute redress 106–107
reparation 168–170 right to truth  112–120
Trust Fund  170 timely and expeditious proceedings  102–104
International Criminal Court (ICC)  8, 10, 18, International tribunals
78, 84, 142, 410, 432 see also International courts
causality 281 administrative tribunals  175–178
establishment 167–168 alien claims
evidence 282 deprivation of liberty  151–152
reparations principles  170–175 injury to property  152–156
‘victims’ 242 interest on awards  156
International criminal law overview 142–146
ICTR 168 satisfaction 156–162
ICTY 168 wrongful death  146–151
International Criminal Court (ICC) International Criminal Tribunal for
establishment 167–168 Rwanda  8, 84, 168
reparations principles  170–175 International Criminal Tribunal for the
‘victims’ 242 former Yugoslavia  8, 84, 167
looting of cultural property  299 Iran–United States Claims Tribunal  39, 42,
purpose of remedies  21 154, 165
as source of law  83–85 Investigations  107–112
 Index 473
Iran–United States Claims Tribunal  39, 42, Namibia 303
154, 165 National Commission on Truth and
Islamic law  4 Reconciliation  151
Israel  167, 182 Nepal  195
Netherlands  27, 50, 202, 264, 266, 320, 436
Japan  179, 181, 264, 270, 272, 274 New Zealand  161, 263, 268, 272, 302, 347
Jurisdiction and competence Nigeria  236, 435
African system  232–238 Nominal damages  140, 189, 320, 356,
conclusions 238 363, 407
ECtHR 205–207 Non-monetary awards
European Social Charter  219–220 conclusions 400–401
Inter-American system  224–232 dignitary harm  15
international tribunals  142 focus on future probabilities  399–400
overview 191–193 guarantees of non-repitition  397–399
presentation of claims less frequently awarded  1
continuing violations  261–262 rehabilitation 394–396
historical injustices  263–268 satisfaction 396–397
overview 260–261 scope of awards  383–394
special tribunals  126 state practice  379–383
UN system  193 state responsibility  34–35
Justice UN declarations and non-treaty texts  76
remedial justice  19–20 underlying principles  377–383
restorative justice  22–27 Non-pecuniary damages
state responsibility  36 equitable nature of awards  350–354
transitional justice  24–27 nature of injury  348–350
overview 346
Kuwait 180, 183 Non-state actors  13, 36, 75
business enterprises  51–58
Land claims 301–304 international organizations  44–51
‘Law and economics’ theories  27–30 Norway  405
Legal aid  70, 98, 170, 199, 222, 421, 422,
424, 427–429, 436 Pecuniary damages
Liberty see Deprivation of liberty meaning and scope  330
Lost earnings  136, 148, 176, 324, 328, 330, valuation
333, 337, 363 liberty 345–346
Lost profits  42, 145, 154, 186, 189, 318, 330, loss of life  334–337
333, 334 property claims  337–345
Lump sum agreements  145, 153, 161, 180 underlying theories  331–334
Lustration  408 Peoples
dignitary harm  14–15
Malloy, Robin 29 land claims  301–303
Marcos, Ferdinand  126 redressable injury  278–279
Mass claims procedures  135–140 right to truth  119
Medical expenses  150, 185, 324, 416 standing to make collective claims  249–254
Mesopotamia  3 UN declarations and non-treaty texts  76–77
Mexico  27, 153 Personal data  70, 71
Migrant workers  81, 103, 204 Personnaz, J.  34, 157, 383
Moral damage Peru  111, 118, 248, 304, 393
general recognition  319–320 Poland  366, 438
redressable injury  278 Political question  97, 286
Morocco  405 Portugal  266, 320, 366, 438
Mosaic law  3 Posner, Eric A.  24, 29
474 Index
Posner, R.  22, 28, 29 Punitive damages
Preconditions to claim conclusions 419–420
breaches of obligation  13–14 effects of ruling  402–403
indentifiable victims  15–16 elements of compensation  403
resulting harm  14–15 enterprise liability  408–410
Presentation of claims jurisprudence
see also Standing EU awards  410–414, 417–418
causality 279–280 Inter-American system  414–417, 418–419
evidence 281–282 practice and procedure  403–408
overview 257–260
redressable injury  278–279 Racism  78, 267, 271, 272, 336
temporal jurisdiction Reconciliation  79, 110, 111, 116–119, 135,
continuing violations  261–262 172–174, 277, 382–383
historical injustices  263–268 Redress
overview 260–261 dual meaning of remedies  17
Presumed harm  355–363 evolution of law  2–7
Procedure International Court of Justice (ICJ)  163
compensation for procedural violations  364–369 international standards  106–107
declaratory judgments recognized types of damage  278–279
African system  297 responsibility of international
ECtHR 287–294 organizations 48
Inter-American system  295–297 substantive redress  18–19
dual meaning of remedies  16–17 Truth Commissions  118–119
European Social Charter  69–70 Regional human rights system
exhaustion of domestic remedies  91–92 African system  232–238
innovative approach to new subject  7–8 European Union (EU)
international standards for fair cases before ECtHR  207–219
proceedings 104–106 establishment under ECHR  205–207
obstacles to enforcement against international European Court of Justice  220–224
organizations 46–47 European Social Charter  219–220
presentation of claims Inter-American system  224–232
causality 279–280 Rehabilitation  394–396
evidence 281–282 Reintegrative shaming  22
overview 257–260 Remedial justice see Redress
redressable injury  278–279 Remedies
temporal jurisdiction  260–278 dual meaning  16–17
UNESCO 203–204 evolution of law  2–7
Property claims exhaustion of domestic remedies see
injury to aliens  152–156 Exhaustion of domestic remedies
restitution human rights and other claims
cultural property  298–301 distinguished 432–433
land 301–304 importance 432
state responsibility  41–42 ‘law and economics’ theories  27–30
valuation of damages  337–345 nature and scope  432
Prosecution  107–112 overview 1–2
Provisional measures  130, 167, 434 preconditions to claim see Preconditions
Proximate cause  174, 279, 355 to claim
Proyecto de vida  76, 230, 278, 331, 350 purposes
Punishment compensation of remedial justice  19–20
evolution of law  2–7 condemnation or retribution  20–21
international standards  107–112 deterrence 22
state responsibility  34 restorative justice  22–27
 Index 475
required elements Scharf, Michael  107, 133
access to justice  17–18 Sexual harassment  175, 177, 178
substantive redress  18–19 Social security  5, 99, 135
Reparation Soft law  58
see also Compensation Sources of law
administrative reparations programs  122–125 declarations 73–81
dual meaning of remedies  16 global treaties  63–67
ECHR 68–69 human rights treaties
following armed conflict overview 58–59
Ethiopia/Eritrea arbitration  187–190 state responsibility  59–63
lump sum settlements  180–183 international criminal law  83–85
overview 178–180 international humanitarian law  81–83
UNCC 183–187 international law
ICC principles  170–175 business enterprises  51–58
International Court of Justice (ICJ)  163–164 responsibility of international
Rome Statute  168–170 organizations 44–51
state responsibility  32–34 state responsibility  32–44
substantive redress  18–19 regional treaties
UN declarations and non-treaty texts  73–74 African system  72–73
Responsibility European Convention on Human Rights
evolution of law  6–7 (ECHR) 67–69
international organizations  44–51 European Social Charter  69–70
state responsibility  32–44 European Union Charter of Fundamental
Restitution Rights 70–71
costs and fees  422–424 Inter-American system  71–72
cultural property  298–301 South Africa  118, 135, 263, 303, 320,
following armed conflict  178 383, 404
International Court of Justice (ICJ)  166–167 Special tribunals  126–135
international jurisprudence  306–314 Sri Lanka  318
land 301–304 Standing
liberty 305–306 see also Presentation of claims
origins of remedy  298 communities and peoples  249–254
state responsibility  40–41 evolution of law  4–5
UN declarations and non-treaty texts  76 individual claims  241–248
Restorative justice  13, 22–24, 22–27, 278 survivability of claims  254–256
Retribution  13, 20–21, 110, 394, 408 UN claims on behalf of its officials  45
Retroactivity  261, 265 State practice
Revenge  3, 4, 21, 110, 160 compensation 316–321
Roma  133, 327 costs and fees  421–422
Roman law  3, 156, 298, 374 declaratory judgments  287
Romania  205, 438 evolution of law  3
Rome Statute immunities 44
reparation 168–170 legal basis of responsibility  58
Trust Fund  170 non-monetary awards  379–383
Rwanda  84, 121, 125, 134, 203 reciprocity 59
State responsibility
Sampling  122, 126, 187, 375 human rights treaties  59–63
Sanctions see Redress international law  32–44
Satisfaction Stern, Brigitte  151
alien claims  156–162 Structural injunction  62, 384
state responsibility  42–43 Subsidiarity  80, 216, 218, 221
underlying principles  396–397 Summerfield, D.  122
476 Index
Survivability of claims UN Committee against Torture  108, 111,
choice of law  369–371 197, 202, 242, 306
general principles  254–256 UNESCO  175, 203–204
Sweden  220, 264, 266, 436 United Kingdom  90, 438
Symbolic acts  157 United Nations
Systematic violations see Gross and systematic approach to restitution  306
violations compensation following armed
conflict 183–187
Taxation of awards 375 declarations and non-treaty texts  73–81
Temporal jurisdiction international standards
continuing violations  261–262 enforcement of judgments  120
historical injustices  263–268 independent and impartial
overview 260–261 judiciaries 101
Timely and expeditious proceedings  102–104 investigations, prosecution and
Torture see Gross and systematic violations punishment  107–108, 111–112
Toxic waste  78, 107 redress 106–107
Transitional justice  24–27 right to truth  113–114
Treaties timely and expeditious proceedings  103
access to justice  100 jurisdiction and competence  193
bilateral investment treaties (BITs)  53 organs and subsidiary bodies  193–196
global treaties  63–67 treaty bodies  196–203
human rights treaties (UNCC)
overview 58–59 ‘victims’ 242–243
state responsibility  59–63 United States see Inter-American human
regional treaties rights system
African system  72–73 Universal Declaration of Human Rights  53,
European Convention on Human Rights 63, 64, 66, 71, 194, 440
(ECHR) 67–69
European Social Charter  69–70 Van Boven, Theodoor  73, 158, 252
European Union Charter of Fundamental Vattel, E  7, 33–35, 145, 157
Rights 70–71 Venezuela  392
Inter-American system  71–72 Victims
UN institutional framework  196–203 see also Standing
Tribunals innovative approach to new subject  8–9
availibility of judicial remedies mass claims procedures  135–140
mass claims procedures  135–140 preconditions to claim
overview 126 identified or identifiable  15–16
special tribunals  126–135 resulting harm  14–15
international tribunals
administrative tribunals  175–178 War crimes
alien claims  142–162 individual liabililty  44–45
Truth innovative approach to new subject  7
international standards for right to international criminal law  83–84
truth 112–120 international humanitarian law  81–83
main focus for some victims  433 looting of cultural property  299
Turkey  212, 244, 247, 250, 334, 366, 373, World Bank  47, 54, 175
437, 438
Wrongful death of aliens 146–151
Ubi jus ibi remedium 31, 377
Uganda  84, 125, 170 Zalaquett, Jose 110
Ukraine  212, 437, 438 Zimbabwe  138, 139, 303, 435