Chapter V - The Obligation to Provide Reparations by Armed Groups

Summary

INTRODUCTION

As explained in Chapter 2, reparations are the natural consequences of holding a person or entity responsible, both in domestic legal systems and as a general principle of public international law. In the context of armed conflicts, the obligation to provide reparations has a double legal nature. On the one hand, the provision of reparation is one of the main components of ascribing international responsibility to states and international organisations as stated in the ASR and the ARIO respectively. On the other hand, reparations constitute one of the central elements in the field of transitional justice. In particular, they represent a key element to redress the suffering caused to victims of armed conflict. Moreover, reparations can comprise a wide range of measures that go beyond mere financial compensation.

Taking into account the predominantly non-international nature of armed conflicts and the fact that armed groups represent half of the participants involved in these armed conflicts, it would appear logical to address the obligation to provide reparations not only by the state but also by armed groups, as their counterparts. In this sense, some authors have noted that the state-centric system is insufficient in addressing the complex reality of atrocities where different actors are involved. From the point of view of the victim, the suffering caused by IHL violations and the necessity to address their needs remains the same whether the perpetrator is a state or a non-state actor. Furthermore, there could be certain aspects of the reparations that are insufficiently covered by the compensation provided by the state and may require the participation of other non-state entities. According to Dudai, ‘overlooking the question of reparations from armed groups is a major omission, which could leave victims of abuses by armed groups unable to achieve the redress that they seek’.

Nevertheless, the issue of reparations from armed groups presents a series of difficulties. Firstly, some armed groups may not have the material or financial means to provide reparations, nor the political will to do so. In this respect, the International Centre for Transitional Justice has affirmed that ‘it is usually not feasible to hold armed groups, whether pro or anti-government, directly accountable for reparations’.