Table Of ContentReparations for Victims of Genocide, War Crimes
and Crimes against Humanity
Reparations for Victims of
Genocide, War Crimes and Crimes
against Humanity
Systems in Place and Systems in the Making
Edited by
Carla Ferstman
Mariana Goetz
Alan Stephens
LEIDEN • BOSTON
2009
Cover photo credit: Africaserver Foundation (2002). Photograph of “Statue of Justice”, sculpture by
Kofi Setordji, as part of Th e Genocide Monument. http://www.vmcaa.nl/genocide/.
Th is book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
Reparations for victims of genocide, war crimes and crimes against humanity : systems in
place and systems in the making / edited by Carla Ferstman, Mariana Goetz,
Alan Stephens.
p. cm.
Includes index.
ISBN 978-90-04-17449-8 (hardback : alk. paper)
1. Genocide--Economic aspects-- Congresses. 2. War reparations--Congresses.
3. Reparations for historical injustices-- Congresses. I. Goetz, Mariana. II. Ferstman,
Carla, 1968- III. Stephens, Alan.
K5302.A6R47 2009
363.34’988--dc22
2009008040
ISBN 978 90 04 17449 8
Copyright 2009 by Koninklijke Brill NV, Leiden, Th e Netherlands.
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printed in the netherlands
Contents
Foreword
Judge Elizabeth Odio-Benito ........................................................................1
Introductory Remarks
Clemens N. Nathan .....................................................................................5
Introduction
Carla Ferstman, Mariana Goetz and Alan Stephens ......................................7
Part I: Reparations for Victims – Key Th emes and Concepts
Victims’ Rights to a Remedy and Reparation: Th e New United Nations
Principles and Guidelines
Th eo van Boven ..........................................................................................19
Massive Trauma and the Healing Role of Reparative Justice
Yael Danieli ................................................................................................41
Reparation Programmes: A Gendered Perspective
Anne Saris and Katherine Lofts ..................................................................79
Part II: Reparations and the Holocaust
Th e Claims Conference and the Historic Jewish Eff orts for
Holocaust-Related Compensation and Restitution
Gideon Taylor, Greg Schneider and Saul Kagan ........................................103
Th e Swiss Banks Holocaust Settlement
Judah Gribetz and Shari C. Reig ...............................................................115
Part III: Th e Internationalised Context of ‘Mass Claims’
Overcoming Evidentiary Weaknesses in Reparation Claims Programmes
Heike Niebergall ......................................................................................145
vi Contents
International Mass Claims Processes and the ICC Trust Fund for Victims
Edda Kristjánsdóttir .................................................................................167
Th e United Nations Compensation Commission
Linda A. Taylor ........................................................................................197
Part IV: Reparations and International and Regional Courts
Bringing Justice to Victims? Responses of Regional and International
Human Rights Courts and Treaty Bodies to Mass Violations
Lutz Oette ...............................................................................................217
Th e Concepts of ‘Injured Party’ and ‘Victim’ of Gross Human Rights
Violations in the Jurisprudence of the Inter-American Court of
Human Rights: A Commentary on their Implications for Reparations
Clara Sandoval-Villalba ............................................................................243
Reparation for Gross Violations of Human Rights Law and International
Humanitarian Law at the International Court of Justice
Conor McCarthy .....................................................................................283
Reparations before the International Criminal Court: Th e Early
Jurisprudence on Victim Participation and its Impact on
Future Reparations Proceedings
Carla Ferstman and Mariana Goetz ..........................................................313
Part V: Pursuing Extraterritorial Reparations Claims – Lawyers’ Perspectives
Th e Prosecution of International Crimes and the Role of Victims’ Lawyers
Luc Walleyn .............................................................................................353
Compensation for the Victims of Chemical Warfare in Iraq and Iran
Liesbeth Zegveld ......................................................................................369
Part VI: Reparations in National (Territorial) Contexts
Reparations and Victim Participation: A Look at the Truth
Commission Experience
Cristián Correa, Julie Guillerot and Lisa Magarrell ...................................385
Contents vii
Th e Argentinean Reparations Programme for Grave Violations
of Human Rights Perpetrated during the Last Military
Dictatorship (1976–1983)
Andrea Gualde and Natalia Luterstein ......................................................415
Reparations for Victims in Colombia: Colombia’s Law
on Justice and Peace
Julián Guerrero Orozco and Mariana Goetz .............................................435
Policy Challenges for Property Restitution in Transition –
the Example of Iraq
Peter Van der Auweraert ...........................................................................459
Reparations in Dayton’s Bosnia and Herzegovina
Carla Ferstman and Sheri P. Rosenberg .....................................................483
Goats & Graves: Reparations in Rwanda’s Community Courts
Lars Waldorf .............................................................................................515
Still not Talking: Th e South African Government’s Exclusive
Reparations Policy and the Impact of the R30,000 Financial
Reparations on Survivors
Oupa Makhalemele ..................................................................................541
Index ...........................................................................................................567
Foreword
By Judge Elizabeth Odio-Benito*
Wars and armed confl icts are deeply embedded in the history of humankind.
Th is has been particularly true during the 20th century and today, where national
and international armed confl icts have terrorised and killed millions, mostly
civilians, and among them mainly women and children.
However, the victims of international crimes had neither a voice beyond that
of a witness nor the right to demand reparations for what happened to them or
to their loved ones. Th e only exception was in the case of some survivors of the
Holocaust that received some reparations from the German government and
other sources.
Th e ad-hoc tribunals for the Former Yugoslavia and Rwanda had already been
operating for several years when the Rome Statute, and later the Rules of
Procedure and Evidence, were adopted in 1998. Th eir international criminal
procedures were limited to the prosecution of perpetrators, having no mandate
to deal with victims beyond their role as witnesses. Th is was debated in the year
2000 as there was the possibility to grant reparations to victims but no formal
agreement was reached and no reparations ever given. Work conducted by aca-
demics and non-governmental organizations based on personal interviews with
those who survived the war in the Former Yugoslavia, have demonstrated that for
many the economic situation, especially for women who were raped, enslaved or
traffi cked, is worse than it was before the war. For women who were raped it was
not until many years later that some of them received recognition as war victims
which entitled them to a small pension from the State.
Our notions of judicial justice are incomprehensible for those who are unable
to survive without a permanent place to live in, without enough money to take
care of their families’ basic needs and without full recognition of the atrocities
committed against them.
Th is was recognised by the drafters of the Rome Statute who established a
Court that is signifi cantly diff erent from any previous international criminal
* Judge assigned to the Trial Division, International Criminal Court. Th e views included in this
Foreword are those of the author and in no way refl ect those of the International Criminal Court.
Ferstman et al. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes
against Humanity, pp. 1–4.
© 2009 Koninklijke Brill NV. Printed in the Netherlands.
