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Background
Under humanitarian law and a series of international conventions, all gross human rights
violations are argued to require legal remedy for the affected individual. 1 However, in
situations of epidemic violence, legal remedies may require extension through a policy of
reparations, but there are conceptual confusions that often impair the proper formulation of a
reparations policy. Literally, “reparation” means to repair or put right, and thus refers to both
legal and psycho-social interventions following a wrongful action.2
Reparation can refer to the process of prosecution under criminal law as amends for the
wrong inflicted, but this is frequently excluded by amnesties or statutes of impunity.
Reparative damages can also come from civil actions, and there have been interesting
developments in this area over recent years, particularly in the United States courts, and, also,
there are now a substantial number of international legal instruments that support the
concept of reparations following human rights violations. Here we might mention the
Universal Declaration of Human Rights of the United Nations, the International Covenant on
Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and the International Convention on the Elimination on
the Elimination of All Forms of Racial Discrimination. Furthermore, Paragraph 59 of the
Vienna Declaration and Programme of Action on Human Rights, which was ratified by all
183 Member States of the United Nations, states the need for assistance to victims of torture,
as well the need for effective remedies for their physical, psychological and social
rehabilitation.
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The legal foundation for reparation and rehabilitation has been extended in
international law by a series of land mark court cases in which courts, such as the
Inter-American Court of Human Rights, have held that, under international law, a duty to
provide reparations attaches to every violation.4
The concept can be narrowly defined, as in the Truth and Reconciliation Commission concept
in South Africa, where reparations are seen as synonymous with “compensation”. Here I shall
1
See UN [1997], The Administration of Justice and the Human Rights of Detainees: Question of the impunity of perpetrators of
humanrights violations (civil and political), Revised final report prepared by Mr. Joinet pursuant>to Sub-Commission decision
1996/119, United Nations. Economic and Social Council. Commission on Human Rights. Sub-Commission on Prevention of
Discrimination and Protection of Minorities. E/CN.4/Sub.2/1997/20/Rev.1
2 See Edelstein(1994), “ Rights, reparations and reconciliation: Some comparative notes”, paper presented to Centre for the
Study of Violence and Reconciliation, 27th July 1994.
3 See the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Convention on the
Elimination on the Elimination of All Forms of Racial Discrimination. Paragraph 59 of the Vienna Declaration and
Programme of Action on Human Rights.
See Lillich (19993), “Damages for Gross Violations of International Human Rights Awarded by US Courts”, Human Rights
Quarterly, 15, 207-229; Lutz (1989), “After the Elections: Compensating Victims of Human Rights Abuses”, in E.L. Lutz,
H.Hannam, & K.J.Burke, (eds), “New Directions in Human Rights”, Philadelphia: University of Pennsylvania Press.
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