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Court-Ordered Reparations: Beyond Money

A new ICTJ paper explains why reparations to victims of sexual violence must go beyond money.
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“Things that Money Alone Cannot Buy:” New Paper Defines Reparations in Cases of Sexual Violence

A new ICTJ briefing paper provides guidance for national courts issuing decisions on redress of human rights violations involving sexual violence. It encourages judges, advocates and prosecutors to consider the full range of possible forms of redress when ordering reparations for victims, to make use of relevant national and international decisions in interpreting domestic laws, and to pay particular attention to how sexual violence may affect different victims.

The 20-page paper, "Full Restitution: Guidelines for Defining Reparations in Cases Involving Sexual Violence Committed During Armed Conflict, Political Violence, or State Repression", emphasizes that judges should aim to establish conditions that address the full range of harms caused by the violation to victims, family members and, in some cases, whole communities.

This recommendation follows the basic principle of “full restitution,” which is the legal standard applied by most courts in attempting to return the victim to the situation that existed before the crime was committed. But in cases involving particularly traumatizing and stigmatizing violations like sexual violence, it may be difficult to accomplish.

Part of the problem is that in these cases courts have traditionally ordered reparation only in the form of compensation, or financial payments. Such decisions may not respond to the many different dimensions of harm that can result from sexual violence, including family abandonment, social rejection and missed social and economic opportunities, including education.

According to the paper, providing reparations only in the form of a cash payment can result in an unfair decision in some cases, because it would not address underlying problems, such as historic inequality or discrimination, which may have contributed to the violation in the first place.

Other forms of reparations that could be considered, in consultation with the victims and their representatives, include rehabilitation through medical and psychological care as well as legal and social services (a particularly relevant form of reparation for victims of sexual violence), guaranteeing access to education for victims and their family members and symbolic forms of reparations, such as official apologies and memorialization.

"Victims of human rights violations – including those who endured sexual violence – deserve justice that responds to their needs," said Cristián Correa, author of the report and ICTJ’s Senior Associate for Reparative Justice. “Courts have an obligation to listen to these victims in deciding on reparations that respond to the full breadth of the impact of these crimes."

While many of the decisions analyzed in the paper come from the Inter-American Court of Human Rights, which has been at the forefront of court-ordered reparations for human rights abuses, the paper also analyses decisions, commentaries and guidelines regarding reparations from the International Law Commission, the UN General Assembly, the UN Human Rights Committee, the African Court of Human and Peoples’ Rights and Peruvian and Chilean laws.

Download the paper to go in-depth on the issue, with examples from cases in Mexico, Colombia, and more. 
Download
Report author Cristián Correa draws on personal experience in discussing effective reparations.
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