Securing reparations for victims of war remains fraught with uncertainties. Yet future wars cannot be stopped unless those who wage wars also pay the price for their actions.
War seems to be an intractable part of human existence. Despite over 75 years of the United Nations and its efforts to ensure international peace and security, the International Committee of the Red Cross has found that the number of armed conflicts has almost tripled in the past decade, with now over 100 wars worldwide. At the same time, efforts to redress past violations continue to be a prevalent debate. Whether for colonialism, the transatlantic slave trade or armed conflict, reparations have been claimed by those affected by atrocities to seek some form of justice. While the historical practice of reparations goes back thousands of years, it is only in the past century that it has been articulated in international law as an obligation to redress wrongdoing, including in war. Before this period, the vanquished only paid reparations to the victor in armed hostilities.
Reparations often arise at the end of hostilities. Since the end of the Second World War, the majority of conflicts have been civil wars (internal armed conflict) within States. There has been a proliferation of domestic reparation programmes being established in the past thirty years to redress the suffering of victims of internal armed conflicts, such as in Peru. Where there is an armed conflict between States (international armed conflict), there has been a tendency of States to forgo reparation claims from each other in order to secure peace as a means to further economic, security and/or diplomatic interests, such as Argentina and the United Kingdom after the Falklands War. This has often left victims reliant on aid or charity to deal with the suffering they have endured.
A notable exception was the United Nations Claims Commission established by the UN Security Council to redress Iraq’s invasion and occupation of Kuwait in the 1990s, which ended up paying over $52 billion in reparations. Such experiences are exceptional, and despite debates around a similar body being set up for the war in Ukraine, it is unlikely to be created by the UN Security Council, given Russia’s veto power.
As for most reparations claims, such legal and political hurdles do not make such claims go away. They just mean that victims’ struggle for redress takes longer. Some victims of the Second World War are still claiming reparations from Germany and Japan over atrocities committed against civilians in Greece, Poland, South Korea and the Philippines. More recently, some States have taken their aggressive neighbours to the UN’s top court, the International Court of Justice. Last year Uganda was ordered to pay $325 million in reparations to the Democratic Republic of Congo for its invasion and occupation of the country between 1998-2003. However more intractable conflicts such as Israel/Palestine, have seen the UN establish a conciliation commission (1948) and a register of damage (2007), which have not delivered on redressing claims nor resolved historic grievances to prevent further violence.
While it may seem obvious that the cost of reparations would be the main hurdle to securing reparations, in practice, it is not. The main challenge of securing reparations is the sufficient political will of those responsible to make amends for their wrongdoing.
When are reparations made?
In the past fifty years, dozens of countries have introduced reparation laws, decrees or awards to victims of armed conflict. Despite the 2005 UN Basic Principles on Reparations for gross violations of human rights and serious breaches of the laws of war, reparations do not occur through States’ compliance with international law nor their charity to victims. Reparations are hard-won struggles by victims against those responsible. During war, it can be dangerous for victims to come together to demand reparations. Even at the end of hostilities, victims can be subject to intimidation, face further violations and even been displaced far from their homes and community, leaving them fighting to survive. Often, at the end of a conflict, a ceasefire can provide more of a civic space for victims to come together and demand their rights. It is at this point, often years or decades after their violations when victims can start to articulate their reparations claims and bring them before political leaders, courts and international bodies.
Due to the number of victims caused by war, often thousands, even millions affected, it often requires an administrative programme to be established rather than individuals going to court to make a claim, which risks inundating the legal system. Reparations usually take the form of money as compensation for victims’ suffering. International best practices such as the 2005 UN Principles recognise that compensation is only one form of redress and alone can seem like ‘bloody money’ or a means to buy victims’ silence.
Instead, compensation should be accompanied by restitution of property; rehabilitation to facilitate victims’ social, physical and legal functioning in society; memorials, apologies, investigations and public acknowledgments of violations that occurred during the conflict, along with institutional and legal reforms to guarantee the non-recurrence of violations. Demand for reparations often outstrips the supply of reparations that those responsible for causing harm in conflict can afford. Providing compensation with other forms of reparations, such as rehabilitation and memorials, can widen the collective benefits of redress to a larger number of individuals and communities affected by war.
The Challenge of Securing Reparations
While it may seem obvious that the cost of reparations would be the main hurdle to securing reparations, in practice, it is not. The main challenge of securing reparations is the sufficient political will of those responsible to make amends for their wrongdoing. Being able to afford to make reparations does matter. Without a political will, however, there is no way forward in finding creative solutions to fund the implementation of redress. Victims in Guatemala had to take a series of cases to the Inter-American Human Rights System before the country introduced a reparation programme for all victims of the conflict and genocide.
Even with such success, political will can fade over time as new governments are elected and victims’ needs are deprioritised or denigrated by politicians. In the case of the Guatemalan reparation programme in recent years, it was underfunded to the extent that it is now defunct, despite the majority of victims not benefiting from it. In Northern Ireland, despite the UK government promising to address the legacy of the Troubles (1966-1998), it recently passed the Legacy Act that will prevent all victims from seeking redress through the courts in order to protect veteran soldiers who shot civilians and children in the back.
Part of the difficulty of getting perpetrators to make reparations is for them to confront their violent past. Those committing atrocities often justify their actions as a legitimate means to protect their community, redress past injustices, ensure law and order, or further their political ideology. Often, it is a difficult subject to broach with those affected by atrocities, and seeking reparations usually takes years or decades to secure if they ever are made. Part of this delay is to break down the barriers of impunity that exist in society, even families, that keep victims silent. This is particularly acute with sexual violence, torture, and disappearances, where victims are stigmatised by the violence meted out to them and their loved ones. In Colombia and Northern Ireland, it has taken decades for those responsible in the military and armed groups to confront their wrongdoing and make efforts to locate the remains of those who were disappeared.
Reparations are provocative, even revolutionary. They give victims a platform to speak about their suffering, confront those responsible, assert claims over land and political rights, and disrupt the narratives around the justifications of war. Reparations directly tackle who was a victim, who was responsible, who deserves to be repaired and reaffirm the rule of law. In international law, it may seem on the surface that these issues are easy to resolve.
However, in protracted conflicts, where some victims can victimise others, marginalised groups are targeted, or it is difficult to evidence what happened and by whom, debates can be caught up in justifying reparations for only ‘innocent’, ‘good’ or ‘loyal’ victims that fit with the State’s story of the conflict. Such instances can undermine human rights protection for all victims, diminishing their rights based on their status or background. In Nepal, child soldiers were neglected from reparation programmes and were not seen as eligible for integration with the military, leaving their needs unaddressed and leaving many in poverty and traumatised.
A further challenge exists with formulating the legitimacy of violence in international humanitarian law or the laws of armed conflict. These laws do not recognise individuals’ right to reparations, with any reparation owed to a State for its civilian harm by another State in the aftermath of a conflict based on violations. This often means that civilians incidentally killed in military attacks are often reduced to collateral damage, leaving them without a legal basis to situate their claims. While countries like the United States, the Netherlands and Saudi Arabia have created payment programmes for civilians harmed by military operations, they may not amount to reparations as they inadequately remedy victims’ harm and require those who accept such payments to waive their rights to any future claims.
The future of reparations for armed conflict
Russia’s invasion of Ukraine looms large in debates on reparations and efforts to explore how frozen Russian assets can fund any reparations programmes. However, with contemporary conflicts, reparations are lengthy struggles, and not all reparation claims can be quickly resolved by the availability of the wrongdoer’s assets. Claims for reparations are also going to face increasing pressure as the government also tries to address intersecting drivers of violence from climate change, water and food shortages, growing numbers of civilians forced to flee their homes and countries, as well as the use of technology in hostilities blurring the lines between civilians/combatants.
Continuing insecurity will also put pressure on existing reparation programmes. This is the case with Colombia, which has the biggest reparation programme currently addressing the needs of victims. Despite the 2016 peace agreement with the FARC, numerous other armed groups and criminal organisations remain active. Consequently, over 10,000 victims are added monthly to the registry for reparations.
Reparations are not going to go away in the face of these challenges. Indeed, there may be opportunities for making reparations a common shared value of remedying wrongdoings resulting from climate change, colonialism and historical injustices and finally addressing these problems that expose certain groups, communities and countries to vulnerability and violence. At the same time, technology may help facilitate victims’ claims, with geospatial data, satellite imagery and mobile phone apps making it easier for them to apply to reparation programmes.
As long as war remains part of the human condition, so will reparations be part of the path to sustainable peace. In the past century, reparations have moved from being imposed on vanquished States as war guilt clauses to compensate the victors to now being firmly focused on holding all those responsible for the sufferings of their victims. The scale of violence continues to be a problem, and the cost of reparations is never factored in to discourage or mitigate further suffering in war. Until those who wield the sword pay the price for the suffering they cause, war will continue to be part of human history and the continuation of politics through violence.