Definitions

Reparations: Measures taken to redress harms suffered by victims of human rights violations or breaches of international humanitarian law, which may include restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

Types of Reparations

Restitution seeks to restore a victim to the position they were in before the violations occurred. This may include restoring liberty to those unjustly imprisoned due to conflict, permitting refugees and internally displaced persons to return to their homes, rehiring for employment lost due to the conflict, and returning stolen property.

Compensation is a financial award for harms that can be accounted for in an economic sense. This may include repaying a victim for the monetary value of destroyed property, for physical or mental/emotional harm, or for the cost of lost opportunities, such as employment or education interrupted by the conflict, or even anticipated earnings lost due to the conflict.

Rehabilitation provides care and services for victims beyond monetary payments. This includes the creation of programs designed to provide social services to harmed communities, such as physical and mental health services, legal services, and vocational training.

Satisfaction includes symbolic reparations such as public apologies, verifying facts and publicly disclosing the truth, commemorating and memorializing the dead, educating future generations about the conflict, and searching for the disappeared.

Guarantees of non-repetition include measures that provide assurance to victims who may fear retaliation or future harm. This may include reform, vetting / lustration, and retraining of institutions such as the legal system, the security sector (police and intelligence services), and the military. It also may entail the rewriting of laws, and the establishment of systems designed to monitor social conflicts and prevent their escalation into violence.

Goals of Reparations

The goal of reparations in a peace process is to address the harms suffered by victims of conflict, restore dignity, promote healing, and foster a sense of justice within affected communities. Reparations may serve to:

• Support victims materially: Reparations such as monetary compensation, return of stolen property, and programs addressing social concerns like employment and health can help communities rebuild in the aftermath of conflict.
• Provide psychological relief to victims: In addition to receiving material support, victims may benefit from immaterial reparations, such as public apologies for the wrongs done to them.
• Ensure non-repetition: Guarantees to restructure governmental offices that have previously abused power, and commitments to promote memorialization and education surrounding the conflict, can help reassure victims that similar events will not be repeated in the future.
• Strengthen public confidence in peace process: Taking material measures to support victims may also ensure that any overall transitional justice process is ultimately meaningful, rather than perceived merely as a hollow gesture.

Why Include This Chapter

The inclusion of a Reparations Processes Chapter in a peace agreement may serve to:

• Define reparations and classes of potential recipients within the context of the broader peace process and peace agreement;
• Identify the goals of the reparations program as they align with those of the broader peace process;
• Express the intention of the parties to commit and contribute to providing the victims of the conflict with the resources they have the right to receive;
• Identify the mandate, structure, and funding for one or more reparations mechanisms that fit the goals of the reparations program within the broader peace process.

If the reparations awarded by a state are tangible, they may be granted and/or distributed through a variety of national institutions, as well as regional or international mechanisms. Usually reparations are granted through domestic administrative processes, truth commissions, or other specially created commissions.

In addition, reparations can be ordered or awarded by entities that have no relation to the peace process, such as by regional human rights institutions and, in some limited cases, international courts. Traditional justice mechanisms may also provide reparations that are appropriate to the community.

Clearly identifying the goals of the reparation program is a crucial prerequisite to creating the rest of a reparations program. Societies emerging from conflict may need a variety of forms of support to recover, and no two communities will need the same assistance. A reparations program may aim to do any of the following: (1) restore individuals or communities to the positions they were in, prior to the harm occurring; (2) transform communities by addressing underlying causes of harm that led to the conflict in question; (3) publicly acknowledge the harm for the purposes of community healing; and (4) provide rehabilitation or other services to help communities recover, such as health services, education, and infrastructure.

Core Issues Addressed

Most peace agreements address the following core issues in a Chapter on Reparations:

• Definitions: This section defines the particular forms of reparations awarded by a reparations process and the classes of victims and survivors who are entitled to receive them.
• Form(s) of Reparations Awarded: describes the categories of reparations awarded by the reparations program.
• Eligibility of Claims: establishes the parameters for what claims will be considered by the reparations mechanism, with respect to crimes, temporality, and causation.
• Foundational Elements: This section outlines the basic features of an independent reparations mechanism.
• Mandate: defines the purpose and scope of the reparations mechanism’s work.
• Underlying Principles: guides the process by reminding the drafters of the goals of the reparations mechanism, often emphasizing victims’ rights.
• Independence emphasizes the importance of allowing the reparations mechanism to conduct its work unimpeded by political or other external forces.
• Location: describes where the reparations mechanism shall be seated.
• Duration: describes how long the mandate of the reparations mechanism shall last.
• Cooperation and Coordination: outlines how a reparations mechanism will work with external organizations and governmental bodies to complete its work.
• Externally Facing Components: discusses outreach and reporting components of a reparations mechanism.
• Funding: discusses the source of funding.
• Traditional Justice Mechanisms: This section briefly discusses the role of traditional justice mechanisms in awarding reparations, outside the formal structures of transitional justice mechanisms.

Form(s) of Reparations Awarded

Note to Drafters: Several different types of reparations may be adopted by drafters creating a mechanism to distribute such assistance. These may be incorporated into a peace agreement individually or in combination.

The [reparations mechanism] shall be empowered to award reparations in the form of [restitution / compensation / rehabilitation / satisfaction / guarantees]. For the purposes of this peace agreement, the following definitions shall be applied to these forms of reparations: [Restitution seeks to restore a victim to the position they were in before the violations occurred.] [Compensation is a financial award for harms that can be accounted for in an economic sense.] [Rehabilitation provides care and services for victims beyond monetary payments.] [Satisfaction includes symbolic reparations such as public apologies, memorialization, and public education.] [Guarantees of non-repetition include measures that provide assurance to victims who may fear retaliation or future harm.] The reparations awarded by the [Reparations Mechanism] may take the form of: [Monetary compensation]; [Identification and return of stolen property, including land owned by displaced persons]; [Public medical and psychological rehabilitation programs;] [Legal assistance and social services]; [Public acknowledgement of, and apology for, violations, that meet the expectations of victims and help to empower them]; [Creation of public spaces, memorials, museums, and other places of education, community dialogue, memorialization, and commemoration]; [State reform of institutions that have victimized individuals in the past]; and [Any other traditional forms of reparation].

Eligibility of Claims

Note to Drafters: A peace agreement may set the parameters for the types of harm for which reparations will be awarded. Such harm may include atrocity crimes such as war crimes, crimes against humanity, and genocide. A peace agreement may also require that, for reparations to be awarded through a transitional justice mechanism, a clear nexus must exist between the violent conflict and any enumerated crimes that may also be committed outside the context of a violent conflict, such as murder, political executions, torture, forced disappearances, sexual violence, arbitrary detention, theft of property, or environmental damage or degradation. In regions where conflict has been ongoing for a long period of time, the peace agreement may specify a temporal limit for the crimes that any peace agreement’s reparations mechanism may consider.

A peace agreement may also expand or limit the scope of how directly a victim experienced the harm. Some only award reparations to those who directly suffered physical injury, economic loss, emotional suffering, or the inability to exercise basic rights. Others will grant awards to family members or others who have indirectly suffered from harm committed to another individual.

The [reparations mechanism] will award [reparations] to victims and survivors who have demonstrated [before this mechanism [and / or] before any other adjudicatory mechanism whose jurisdiction is recognized by the mandate of this mechanism] that they have suffered the following types of harm in relation to [the conflict]: [Atrocity crimes, such as war crimes, crimes against humanity, or genocide;] [Physical harm [of sufficient gravity], such as [murder, political executions, torture, sexual violence, forced disappearance, etc.];] [Deprivation of fundamental rights, such as [arbitrary detention, lack of due process rights, environmental damage/degradation, persecution, including on political, racial, national, ethnic, cultural, religious, gender grounds etc.];] [Economic loss, such as [theft/deprivation of property, loss of employment, loss of education];] [Emotional harm, such as [trauma resulting from the commission of any of the aforementioned harms against the individual, trauma resulting from the commission of any of the aforementioned harms against a family member of the claimant, etc.]] [Any other situations specific to the conflict.] Any claims considered by the [reparations mechanism] must fall within [time period]. Claimants must be able to demonstrate that the harm they suffered occurred as a result of [the conflict]. All claims must comply with [a balance of probabilities standard of proof], however, the burden of proof shall rest on [the state] to disprove survivors’ statements with clear reasons and consistent and reliable evidence. The [reparations mechanism] shall apply the do no harm principle to the highest standards and prioritize the avoidance of re-traumatization. The [reparations mechanism] shall take all reasonable steps to mitigate any hurdles for victims to submit claims. Claimants will not be discriminated against on the basis of their gender, ability, age, religion, race, ethnicity, or sexual orientation. The granting of amnesties or pardons to perpetrators does not extinguish the victims’ right to receive reparations.

Mandate of a Reparations Mechanism

Note to Drafters: The mandate of the reparations mechanism typically addresses what the purpose of the reparations mechanism is, as well as its duties and the manner in which it will create rules and procedures (without necessarily listing out those rules and procedures).

The mandate of the [reparations mechanism] shall be to receive and address [relevant claims brought before it by victims of [the conflict] [ and / or]] [decisions issued by [domestic courts / international courts / other relevant transitional justice mechanisms] for distribution of reparations to the victims of [the conflict]. In order to fulfill its mandate, the [reparations mechanism] shall: [Investigate the mandate’s aspects using necessary methodologies and forms of information gathering and analysis.] [Hold public hearings to allow victims’ voices to be heard and to promote the participation of various sectors of society.] [Create venues for public discussion and reflection [that may allow perpetrators to ask for forgiveness]]. [Offer guidance to victims and victimized communities regarding help available to them from various institutions.] The [reparations mechanism] shall create its own internal rules, processes, and procedures for: [electing / appointing] members of any governing board; conducting meetings of any governing board; obtaining and soliciting funding; and distributing awards to victims and survivors.

Underlying Principles

Note to Drafters: A reparations mechanism is often created after extensive communication with the communities that will be impacted by its work. These exchanges should solicit the concerns of civil society and victims, to ensure that their perspectives are heard and needs are met during the peace process. This general victim-centered approach may be determined explicitly within a recitation of the underlying principles for any reparations mechanism established.

The creation of the [reparations mechanism] will be underpinned by the following principles: [Recognition of victims: Victims of the conflict must be recognized as such, and as citizens with rights that must be addressed in the best manner possible within the context of the end of the conflict.] [Acknowledgement of responsibility: Perpetrators will acknowledge responsibility for the wrongs done to victims of the conflict.] [Victim participation: Victims must participate in how best to realize their rights stemming from grave breaches of human rights and humanitarian law during the conflict.] [Historical clarification of the truth: Establishing what happened during the conflict—including its causes, origins, and effects—is fundamental to realizing the rights of victims and reestablishing trust.] [Reparations for victims: Victims have the right to be compensated for injury and loss suffered because of the conflict. Restoring victims’ rights at the end of a conflict is fundamental for a stable and long-lasting peace.] [Guarantees of protection, security, and non-recurrence: Victims’ lives and personal integrity must be safeguarded, including reforms adopted to ensure no future generations are victimized.] [Principle of reconciliation: To realize victims’ rights requires reconciliation of all citizens, to enable a move towards a future of civility and peaceful coexistence.] [Rights-based approach: All citizens, including victims, are entitled to human rights; the state has a duty to protect and promote such rights and fundamental liberties; and citizens have the duty to refrain from violating each others’ rights.]

Independence

Note to Drafters: A reparations mechanism must be able to conduct its operations free of political interference. Language within the peace agreement may speak explicitly to this necessity.

The [reparations mechanism] shall be an independent and impartial administrative entity with its own separate legal personality. The Parties shall take all necessary measures to ensure the proper functioning and to maintain the independence and integrity of the [reparations mechanism]. The [reparations mechanism] may receive assistance from national, regional, and international organizations and non-governmental organizations in its field of work, but must refuse assistance that is not consistent with its mandate.

Location

Note to Drafters: A peace agreement will commonly note where any reparations mechanism shall be located.

The [reparations mechanism] shall have its seat in [location].

Duration

Note to Drafters: Parties may determine the length of time that it anticipates a reparations mechanism will operate and be funded.

The [reparations mechanism] shall operate for a duration of [number of] years, subject to a renewal of its mandate at the conclusion of this time.

Cooperation and Coordination

Note to Drafters: Any transitional justice process may require coordination with other mechanisms, and a reparations mechanism is no exception. A reparations mechanism may rely on the investigations, reports, and resources of external bodies and organizations to assess the awards it owes to victims of the conflict.

Cooperative Engagement

The [reparations mechanism] shall cooperate and coordinate with national, regional, and international bodies and organizations, including non-governmental organizations, for the purposes of fulfilling its mandate.

Comprehensive Integration

The [reparations mechanism] shall operate as a key component of the broader transitional justice framework, complementing other mechanisms such as criminal tribunals, other reparations programs, and institutional reforms. The integration of these mechanisms aims to provide a comprehensive approach to addressing past injustices and promoting sustainable peace. [Accordingly, the [reparations mechanism] may rely on the resolutions or decisions of courts, truth commissions, or other adjudicatory transitional justice mechanisms to inform its distribution of reparations.]

Externally Facing Components

Note to Drafters: On top of the measures discussed above with respect to ensuring that a reparations mechanism’s decisions are made transparent, the reparations mechanism should seek to make its general workings as publicly accessible as possible. This may entail creating an outreach office and/or creating and submitting periodic reports on the activities of the mechanism.

Office of Public Affairs and Outreach

The [reparations mechanism] shall have an Office of Public Affairs which shall assist in matters including: (1) dissemination of communiqués or press releases; (2) facilitation of any outreach necessary or appropriate for fulfillment of its mandate; and (3) conducting information campaigns to facilitate education and awareness about the [Reparation Mechanism’s] activities and mandate.

Periodic Reporting

The [board of directors / other governing institution] of the [reparations mechanism] shall submit a written [annual / quarterly / other time increment] report on the activities of the [reparations mechanism] [to the parties / to an international monitor]. Such reports shall be made publicly available, subject to confidentiality requirements. The reports shall contain details including: A description of the [reparation mechanism]’s activities for the reporting period; The status of the implementation of resolutions; A description of funding received by the [reparation mechanism] during the reporting period; Any appeal for voluntary contributions; A description of any interaction with other mechanisms; Any national, regional, or international assistance received by the [reparation mechanism]; Financial statements and other documentation needed for auditing purposes; Any recommendations for legal, political or administrative measures that aim to strengthen reparations. [The recipients of these reports] shall review the reports, act on any recommendations as appropriate, and conduct an audit of the [reparation mechanism’s] financial statements and records.

Funding

Note to Drafters: One of the key issues discussed in peace processes is the source of funding for reparations. In fact, a significant amount of money is needed to award compensation to large numbers of victims and survivors and the involvement of external donors and funders may be inevitable. Parties may discuss this important issue during peace negotiations and include reference to it in the peace agreement to ensure that both Parties take reparations seriously.

Establishment of a Fund

The [transition authority], with the support of the international community, shall design and implement a programme for the rehabilitation of victims through reparations. For this purpose, a special fund shall be set up.

International Community

The Parties shall seek the assistance of the international community in providing funds and other logistics to enable the [reparations mechanism] to carry out its mandate.

Traditional Justice Mechanisms

Note to Drafters: Parties may also opt for traditional justice to complement more formal mechanisms. The use of state-supported traditional justice mechanisms in post-conflict countries has become a popular model for restorative justice and peace. Traditional transitional justice mechanisms are usually adapted from community-based dispute resolution practices, and can include elements of truth-telling, communal forgiveness, and reparations. Some peace agreements do not specify which mechanisms a state will use; instead, they may include a broad statement allowing communities to choose the practices that correlate best to their circumstances and have the most meaning for them. Other peace agreements include specific language on the mechanisms that will be supported, in which case the choice of mechanisms is highly context-specific and reflects customary practices in the state. Traditional justice mechanisms may be complementary to other transitional justice processes, and a statute establishing a specialized criminal court may opt to integrate cultural norms and other elements of traditional justice into its procedures.

The Parties agree to support the use of traditional and customary justice mechanisms to address local grievances, promote reconciliation, and provide reparations. The jurisdiction of traditional justice mechanisms shall include the power to address offenses related to the conflict in falling outside the jurisdiction of [the ICC], [the hybrid court], or a [domestic war crimes court]. [Local and regional leaders and tribal elders] shall oversee the functions of traditional justice mechanisms and shall monitor the distribution of the reparations they award.

Further Readings

• Council of Europe, Reparation and reconciliation processes to overcome past conflicts and build a common peaceful future – the question of just and equal redress
• Steven van de Put and Magdalena Pacholska, Beyond retribution: Individual reparations for IHL violations as peace facilitators
• UN, United Nations Approach to Transitional Justice