It is a widely acknowledged principle of international law that any breach of an engagement involves an obligation to make reparation in an adequate form. Thus when a violation is committed, reparations must be paid. The term reparations can therefore be simply understood as redress provided for victims for the injury or harm that they have suffered. This principle applies in two instances; where the violation is committed by one state against another, or by a state against individuals.
Reparations aims to ‘wipe out [as far as possible] all the consequences of [an] illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’. Importantly, reparations are not restricted to compensation. 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 (hereinafter “UN Principles on the Right to a Remedy”) distinguishes five broad categories of reparations which are;
• Guarantees of non-repetition
The right to reparations includes access to justice, reparation for the harm suffered and access to information. It is contained in most human rights and humanitarian rights conventions. In the context of serious violations of international human rights law and international humanitarian law, the UN Principles on the Right to a Remedy provides fundamental principles and guidelines and a framework for construction of national reparation programmes. The importance of remedies has also been affirmed in the International Covenant on Civil and Political Rights and in other instruments.
Gender and Reparations
Generally, women and girls suffer distinct injuries and human rights violations, thus the need to deal with these violations uniquely. A Statement by Rashida Manjoo, the Special Rapporteur on violence against women, its causes and consequences provides an account of the distinctive nature of violations suffered by women. It says that;
“Women and girls are victimized under authoritarian regimes and during violent conflict in multiple ways. They suffer from operations randomly or strategically targeting and terrorizing the civilian population, but also from summary and extrajudicial executions, imprisonment, torture, rape and sexual mutilations for fighting in resistance movements, engaging in the search for and defence of their loved ones or for coming from communities suspected of collaboration. […]Some forms of violence that women are subject to are similar to those suffered by men; others are more specific to women and girls, subjecting them to systematic patterns of sexual or reproductive violence or to different forms of domestic enslavement […]More importantly, even when women are subjected to the same violations as men, their pre-existing socio- economic and legal status and the cultural meanings surrounding the construction of the male and the female in patriarchal societies may cause different ensuing harms for men and women”.
For a long time, women and girls have been subjected to sexual and gender based violence without the hope of any form of redress or reparation. But the need for reparation programmes specifically dealing with violations against women cannot be gainsaid. Until recently, there has been no emphasis on gender and reparations and on the distinctive role on reparations for women. However, in its 1993 Declaration on the Elimination of Violence against Women, the General Assembly requested States to ‘exercise due diligence to prevent, investigate and in accordance with national legislation punish acts of violence against women whether those actions are perpetrated by the State or private persons.’ It also called for states to develop legislation aimed to punish and redress wrongs caused to women.
The Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation adopted in 2007 is the best manifestation of the growing concern to provide women and girls with adequate reparations. In its preamble it takes into consideration ‘the unimaginable brutality of crimes and violations committed against women and girls in conflict situations, and the disproportionate effects of these crimes and violations on women and girls, their families and their communities. The Declaration seeks to;
· Empower women and girls
· Promote gender equality and post-conflict transformation through reparations by shaping the lives of women and girls.
· Highlight the particular circumstances of violation of women’s rights and the specific approaches based on their needs.
· Advocate for the full participation of women and girls victims in every stage of the reparations process.
· Emphasize the importance of truth telling in order to positively reparation measures and to help women and girls to rebuild their lives.
In addition, the Declaration pays specific attention to victims of sexual and gender based violence.
Asides from the Nairobi Declaration, the recent reparation order by the International Criminal Court in The Prosecutor v. Thomas Lubanga Dyilo case provides a watershed in women reparations. Some of the principles established by the trial chamber provide important ideologies in the gender -reparations discourse. The chamber emphasized that reparations should be accessible to all victims and where appropriate takes the gender of the victims into account. In addition, it stressed that reparation measures should take into account sexual and gender based violence that victims may have suffered. In welcoming this order, the UN Women’s Deputy Executive Director, Lakshmi Puri, said that “As a mechanism of justice, reparations are of particular importance for women victims of conflict,” and that “[r]eparations have the potential to provide recognition of women’s rights as equal citizens, acknowledgement of the harm suffered, as well as a concrete contribution towards victim’s recovery,” Consequently, reparations play an important role in rebuilding lives of victims.
These approaches play a significant role in allowing women victims to access justice. States therefore as the primary entities vested with the responsibility to provide reparations should ensure that the needs of women are met in any reparation measures. This can be done either through enactment of gender sensitive reparation policies or through inclusion of gender/ non-discriminatory clauses in constitutive instruments of Truth Commissions which usually recommend reparations in their final reports.
 Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17 at 29.
 Chorzow Factory Case (n 1 above) at 21.
 Chrorzow Factory Case (n 1 above) at 47.
 Principle 11, UN Principles on the Right to a Remedy.
 On the 65th session of the General Assembly Third Committee on 11 October 2010 at New York.
 Available at http://www.un.org/womenwatch/daw/documents/ga65/vaw.pdf (accessed on 28/08/2012)
 Article 4(c) of the Declaration.
 Cited in http://www.vrwg.org/home/home/post/36-lubanga-case---q--a-on-icc-landmark-decision-on-reparations-for-victims (accessed on 28/08/2012).
By Brenda Mwale