Provisional Title:

International Law on Reparations for War Victims. The Bridge between the Desirable and the
Possible? A case study on the Implications of International Law on Legal Framework for
Reparations in Colombia.

When studying reparations for victims of armed conflict through the lens of international law, it
appears to be a gap between what is desirable and what is possible. On one side, international
community highlights that the provision of remedies to victims of gross violations of human
rights law and international humanitarian law contributes to the promotion of justice.1 In light of
this, states should ensure the implementation of reparative measures (restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetition), which in turn should be appropriate
and proportional to the harm suffered.2 On the other side, it is not possible to circumvent the
following sad paradox: ‘the principle of full reparation cannot be enforced’ in such a massive
violations context, so victims ‘can not really expect full compensation,’ even when international
law avows the right to receive proportional remedies. 3 In other words, the real limitations for the
implementation of reparations stand regardless the ideals envisaged in international instruments.
Law can bridge this gap between what is desirable and what is possible by establishing what is
mandatory, but then it raises the question of what should be mandatory. That is, should the
protection to the right to reparations be subjected to the limits of practical constraints?
Alternatively, on the contrary, should the conditions of implementation be adapted in order to
fulfill international obligations?

Problems leading to the Question

1
United Nations, ‘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 (General Assembly Resolution 60/147 of 16 December 2005)’ para 15.
2
Ibid 18–23.
3
Christian Tomuschat, ‘Individual Reparation Claims in Instances of Grave Human Rights Violations:
The Position under General International Law’ in Randelzhofer Albrecht; Tomuschat Christian (ed), State
Responsibility and the Individual Reparation in Instances of Grave Violations of Human Rights (Martinus
Nijhoff Publishers 1999) 60-61. See also Christian Tomuschat, Human Rights: Between Idealism and
Realism (Third Edit, Oxford University Press 2014) 416

1
In the field of transitional justice, international law contributes to answering what is mandatory
as to reparations for war victims, but the definition of the scope of reparations is to some extent
ambiguous. The reason is that while a set of procedural and substantial remedies has been
identified as the core of reparations, the relationship between reparations and other transitional
measures has not been clearly defined up to the point of admitting that its contents may overlap
with those of truth-seeking and criminal justice. For instance, Human Rights Committee (HRC)
and Inter-American Court of Human Rights (IACtHR) hold that ventures for fighting against
impunity (investigation, prosecution, and punishment) are part of the set of reparations. The
Inter-American's jurisprudence is even less clear at the time of labeling such measures because
there is no complete agreement on whether these provide satisfaction or guarantee non-
repetition. 4

This broad concept of reparations would be irrelevant if the message did not have implications
on the definition of what state is bound to do in the implementation of administrative programs
or international tribunals’ decisions, but it does. Quite on the contrary, the international
interpretation of corresponding obligations may result crucial when the state has to prioritise
which measures are to be implemented, especially where scarcity of resources and claims from
other citizens for competing needs constitute serious obstacles to redress the harm of all the
victims wholly. In this vein, the more comprehensive idea of reparations set forth by
international instruments and applied by regional courts may either entail an unfeasible set of
obligations for the state to fulfil, or dilute its responsibility towards victims. The risk is that at
considering that other transitional measures fall within reparations, it ends up meaning nothing
for victims.

4
Human Rights Committee, ‘Human Rights Committee General Comment No. 31 (The Nature of General
Legal Obligation Imposed on States Parties to the Covenant), CCPR/C/21/Rev.1/Add.13’ (United Nations
2004) para 15 <http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d
%2FPPRiCAqhKb7yhsjYoiCfMKoIRv2FVaVzRkMjTnjRO
%2Bfud3cPVrcM9YR0iW6Txaxgp3f9kUFpWoq%2FhW%2FTpKi2tPhZsbEJw
%2FGeZRASjdFuuJQRnbJEaUhby31WiQPl2mLFDe6ZSwMMvmQGVHA%3D%3D>; Case of the
Plan de Sánchez Massacre v Guatemala (Reparations) (2004) Series C N [97–99]; Case of the ‘Las Dos
Erres' Massacre v Guatemala (Preliminary Objection, Merits, Reparations, and Costs) (2009) Series C N
[234].

2
In the first sense, the more comprehensive developments on reparations cannot be automatically
transferred to be part of programs at the domestic level, because this would be beyond the
capabilities of the state. To mention two examples, the monetary remedies awarded by IACtHR
for individuals would result financially unsustainable if extrapolated to deal with massive
claims.5 By the same token, the prioritised implementation of measures against impunity, such as
programs for prosecution and criminal punishment, might erode the scarce recourses. In the
second sense, authorities could prioritise the implementation of remedies with reparative effects
instead of the provision of reparative measures6, and thus deviate from the purposes of
reparations without failing to comply with their international legal obligation to reparations. For
instance, under a broader understanding of reparations, decisions of public policy might oscillate
from directly redressing the harm towards the attention of other transitional challenges, such as
punishment of perpetrators or disclosure of facts unveiling general conditions of war but not
bringing a particular truth that allows victims to restore their memory and dignity.

Besides ambiguities in the conceptualization of reparations, the implementation of international

standards and rulings at a domestic level without accounting particular conditions of the context
may yield to disaggregate reparative efforts and render uneven treatment to victims, thus turning
problematic the relationship between international and local law. First, the attempt to provide
remedies according to the judicial criterion of restitutio in integrum ( fully restore the conditions
before violations for instance,) may result in the implementation of uncorrelated measures that
do not necessarily provide a big picture of the magnitude of efforts to be done. 7 Second, there
may be disparities in the magnitude and nature of remedies when states have to fulfil orders
imposed by international courts and instruments but at the same time to settle domestic
reparative claims with limited economic resources. In such scenario, the content of international

5
The role of international law on reparations is to inspire, to the extent it may be possible, those national
initiatives. It is impossible to transfer the set of remedies provided by international courts to domestic
administrative programs, especially regarding monetary measures. Still, it is feasible to use their orders as
a guideline to operate other symbolic mechanisms that are not incompatible with the conditions of
scarcity and political tension. Arturo J Carrillo, ‘Justice in Context. The Relevance of Inter‐American
Human Rights Law and Practice to Repairing the Past’, The Handbook of Reparations (Oxford University
Press 2006) 526 <http://www.oxfordscholarship.com/view/10.1093/0199291926.001.0001/acprof-
9780199291922-chapter-15> accessed 18 May 2018.
6
Ibid. 526
7
Pablo De Greiff, ‘Justice and Reparations’ in Pablo De Greiff (ed), The Handbook of Reparations
(Oxford University Press 2006) 451–473.

3
law can create unrealistic expectations and severe resentment among those who cannot access to
international justice and have ´to be satisfied´ with reparations at a local level.8

The difficulties mentioned above that the application of international law may involve can be
better appreciated in the implementation of ruling in Inter-American System. Inter-American
Court has awarded remedies for large-scale violations that have resulted in disaggregation of
state’s efforts and uneven reparations.9 In the case of Massacre Plan de Sanchez v. Guatemala,
the state was held responsible for the active participation in massive executions and other sexual
and physical abuses against 268 people in the Village of Plan de Sánchez, located in Rabinal.
Most of them belonged to Maya-Achí indigenous community. 10 The Court ordered to
compensate the 236 victims by paying US$ 25.000 to each of them and the Guatemalan state
complied with it. Nevertheless, as these payments were publicly delivered without any
consideration on how victims were to use them, the money was squandered in many cases. The
disaggregation of victims came when Guatemalan government adopted a policy of national
reparations in order to prevent new cases were brought to the Inter-American Court and awarded
victims with much less money than that delivered under Inter-American System. These
differences led to severe frictions among groups of victims.11 

These problematic issues on ambiguity and applicability of international law as a source of

reparations lead one to think of the necessity of leaving a margin of maneuver for the state to
implement remedies according to its particular conditions and capabilities. Nevertheless, the
message of international law seems to be also ambiguous on this matter. While on one side it is
understood that local authorities can attribute the meaning to law and apply it in the way that
better suits their domestic resources and limitations. 12, on the other side, it is said that the
8
This ‘hierarchy of Victims’ results from the fact that not all of them have the same chance to access to
justice, or to claim for compensation at the international level on account of different levels of education,
wealth and information. Ibid.

9
Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict
(Cambridge University Press ed, Cambridge University Press 2012) 234.
10
The case of the Plan de Sánchez Massacre v. Guatemala (Reparations).
11
Evans 72–73.
12
UN Security Council, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies
Report of the Secretary-General. S/2004/616’ (2004) para 15-17; ‘United Nations Approach to

4
restricted capabilities do not relieve from its responsibility to fully redress. Thus, from United
Nations’ perspective, whereas international law sets out what remedies must be provided
(minimum contents), the decision on how much of them is delivered (maximum and minimum
levels of redress) should be left to the states’ autonomy. 13 The Committee against Torture
remarks that the interpretation of the expression ‘as full rehabilitation as possible' from the article
14 of the Convention against Torture does not mean that the fulfilment of the obligation is
subjected to state party's availability of resources, but refers to the limit to which victims can be
‘fully recovered'. In other words, the state must promote the possible level of rehabilitation, but
cannot postpone its obligation.14 The CAT also asserts that ‘[T]he failure of a State party to
provide the individual victim of torture with redress may not be justified by invoking a State’s
level of development.’15

To sum up, although international law is necessary to fill the gap between what is desirable and
possible concerning war victims reparations, the message it delivers to states is far from being

Transitional Justice. Guidance Note of the Secretary-General' (2010) [A3].

13
However, United Nations considers that in order to prevent negligence from the authorities in
charge of the implementation of reparations and seeking to achieve fair outcomes for victims,
International regulation on reparations should seek to require states due to justifications for their
Decisions about the level of remedies. Office of the United Nations. High Commissioner of Human
Rights, Rule-of-Law Tools for the Post-Conflict States: Reparations Programmes (United Nations 2008)
28. United Nations points out that domestic actors are mainly in charge of making and implementing
decisions to face with the challenges of transitions, while its role is conceived as auxiliary, being mainly
limited to the provision of legal and technical assistance and advice. Even past experiences must be seen
as hortatory without any pretension to impose successful solutions from the outside. Security Council
paras 15–17. Although national authorities must play the main role, UN makes a caveat about what each
country must take into account when implementing transitional measures so that they can be sustainable
and relevant. The idea is that those transitional venues need to be carried out considering not only context
needs, but also assessing causes, and identifying and attending vulnerable groups, such as minorities,
women, and children. ‘United Nations Approach to Transitional Justice. Guidance Note of the Secretary-
General' para A3.

14
Committee against Torture, ‘General Comment No. 3 (2012) Implementation of Article 14 by State
Parties’ para 12.
15
ibid 37.

5
clear as to what is the scope of remedies and to what extent it is possible to relieve the state from
that responsibility on account of its practical constraints. Further, the implementation of
international rules and rulings at the domestic level may be conducive to uneven reparations that
exhaust state capabilities and efforts and can create unrealistic expectations and resentment
among victims. These problematic issues raise the following research question:
To what extent and how is international law contributing to filling the gap between what is
desirable and what is possible concerning reparations for victims of war?

For this work, the international law refers to the two bodies of rules that have mainly developed
reparations, namely International Human Rights Law and International Humanitarian Law. The
term war will denote the more limited circumstance of internal armed conflict since law turns out
to be more ambiguous when seeking to redress victims against this backdrop. The answer to the
central question stems from the study of Colombian reparations for conflict victims on account
of the features of that conflict and of the particularities of the law framed to advance the
transition to peace. These reasons are expanded in the following section.

Reparations for war victims in Colombia. An attempt to provide transformative remedies

The conflict between government, guerrillas, and paramilitaries has left more than 8 million of
Victims in more than 50 years in Colombia. The Sole Register of Victims (RUV in its Spanish
initials) reports that 8.679.002 is the number of victims of lethal and non-lethal violence
associated to armed conflict, from January 1985 until April 2018. 16 Although Government had
ratified international instruments embodying the victims' right to remedies and acknowledging
the obligation to reparations in domestic law, 17 other different interests seemed to be endorsed,
16
To date, figures are available at http://rni.unidadvictimas.gov.co/RUV. Despite the governmental
attempt to statistically measure violence, it remains under-reported because of methodological difficulties
to obtain information, but primarily, this is due to the dynamics of war and its actors, who silenced
civilians. Historical Memory Group, BASTA YA! Colombia: Memories of War and Dignity. General
Report by Historical Memory Group. English Version (Historical Memory Group 2016) 37–40.
17
Considering Colombian legal framework on reparations, international instruments have been
recognized as binding rules in Colombia through the constitutional mechanism of ratification, which
implies laws from National Congress and rulings from Constitutional Court. It is the case if International
Convention on Civil and Political Rights, which was ratified in the Law 74 of 1968; the International

6
such as national security policy and programmes for reinsertion into civil society of paramilitary
groups.18 In 2011, the government showed its concerns for victims’ fate and promoted the
Victims’ Law (Law 1448), which envisages the framework of transformative reparations.

Reparation program based on transformative approach is not a new standard but a different form
of understanding the purpose of reparations. 19 From this perspective, the primary goal is to
achieve distributive justice through remedies that redress the harm and also address the unequal
social distribution of burdens and benefits. Moreover, although the programme seeks to provide
integral and proportional reparations according to international standards, it is understood that
victims can be awarded up to the point of guaranteeing the financial sustainability of the
program.20 The implementation of this law reveals that this could be over-ambitious and create
expectations that state cannot fulfill. One reason is that despite the purpose of addressing
structural conditions of violations, the responsible authorities are more concerned with the
financial sustainability of reparations. For instance, when estimating the cost of long-term
implementation, the Government’s ten-year projections of public spending on reparations were
54, 9 billion of Colombian pesos, seeking to benefit 2’410.200 of victims 21. However, civil

Convention on the Elimination of All Forms of Racial Discrimination, incorporated into domestic law by
Law 22 of 1981; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, recognized as domestic law in the Law 70 of 1986; and the Convention on the Rights of the
Child, ratified by the law 12 of 1991. In respect of IHL, Constitutional Court admitted the constitutional
status of the obligation to pay compensation in case of violations of IHL from the Protocol Additional to
Geneva Conventions of 1949, in its ruling C-574 of 1992. Finally, the American Convention on Human
Rights, whose article 25 enables all the victims to pursue judicial remedies against fundamental rights
violations through a prompt and effective recourse, was recognized as binding in Law 16 of 1972.

18
Johanna Cortés, ‘Análisis de La Atención a La Población Desplazada Por La Violencia Desde El Punto
de Vista Presupuestal’ (Colegio Mayor de Nuestra Señora del Rosario 2005).
19
Uprimny R and Saffón MP, ‘Distributive Justice and the Restitution of Dispossessed Land in Colombia’
in Morten Bergsmo and others (eds), Distributive justice in transitions (Torkel Opsahl Academic
EPublisher 2010)
20
Ibid
21
. Departamento Nacional de Planeación (National Planning Department), CONPES Document 3712:
Plan de Financiación para la sostenibilidad de la ley 1448 (Plan to Provide Sustainable Funding for the
Law 1448) (Departamento Nacional de Planeación 2011) at <http://www.dnp.gov.co/LinkClick.aspx?
fileticket=tbxvV6M0DGg%3D&tabid=1080> accessed 31 August 2012.

7
society organisations such as CODHES (Consultancy for Human Rights and Displacement) and
the Follow-up Commission on Public Policy for Displacement, pointed out that there was an
increasing number of forcibly displaced people, 5'445.406 million until 2011, whose reparation
would take more than 10 years and at least 79, 7 billion of 2011 Colombian Pesos.22

In addition to economic interests underlying the implementation of the law, the political
requirement of attending the needs of other citizens different from victims may make less likely
to accomplish transformative purposes of reparations. In other words, the gap between ideals and
real possibilities can become wider when competing needs have to be met because the limited
resources need to be distributed to settle other claims. The simultaneous implementation of
housing public policy for houseless and reparations for forced displacement victims in Colombia
well illustrates this point. While forcibly displaced people have been deemed to be first in the list
of priorities for providing housing subsidies, the rest of the citizens have encountered serious
obstacles when trying to access to public funds or public housing services. Since 2004, the
Colombian Constitutional Court pointed out that forced displacement entailed humanitarian
crisis and ordered the national government to adopt urgent measures for overcoming such
conditions. One of these orders involved housing public policy changes, seeking to provide a
home to victims. As a result of this, the Housing National Fund, the public agency in charge of
the management of those available public funds to supply housing needs of the whole
population, ended up spending about 65% of its resources on responding to forcibly displaced
people’s needs. As Ceballos highlights, to be a victim of war rather than one of poverty might be
a better way to access to those social benefits historically neglected.23 This treatment might
explain fraudulent behaviour from those who were not affected by violence, seeking reparations
by reporting false information about being victims of gross war crimes, which in turn may result
in social stigmatisation of victims as impostors.24
22
Comisión de Seguimiento a la política pública sobre desplazamiento forzado (Consultancy for Human
Rights and Displacement), El Reto Ante La Tragedia Humanitaria Del Desplazamiento Forzado:
Reconocer Y Resarcir Debidamente Los Daños Y Perjuicios (The Challenge to the Humanitarian
Tragedy of Forced Displacement: Recognizing and Repairing the Harms) (Consultoría para los Derechos
Humanos y el Desplazamiento Forzado –CODHES- 2011)
23
María Adelaida Ceballos, ‘Protección Diferenciada de Derechos En Colombia. La Condición de
Desplazado Como Clave de Acceso Al Derecho a La Vivienda' in María Gallego, Gloria, and González
(ed), Conflicto Armado, Justicia y Reconciliación (Siglo del Hombre 2012).
24
The case of the false Victims of Mapiripán is a well-known example of this. In 2005, Inter-American
Human Rights Court declared the Colombian State international responsibility for its participation in the

8
In this context, international human rights law and international humanitarian law are meant to
serve as a reference to frame common language to solve structural problems such as reparations
of massive rights violations..,25 However, a clear message needs to be sent to states as to what is
the scope of remedies and to what extent their provision can be context-driven; otherwise the gap
between the goals of reparations and the practice of law may end up undermining credibility in
this latter. The main goal of this research is to contribute to deepening our understanding of the
general aim, contents and scopes of reparations in international law, focused on internal conflict
victims, seeking to identify realistic contents of this obligation and consequences of its breach.
That is, what international law requires from States concerning victims' reparation in internal
armed conflict, and how this understanding may contribute to overcoming the limitations of
domestic reparations.

Method and Provisional Outline

It is intended to inquire into three main inputs in the field of reparations, namely scholars,
international-legal framework and Colombian local-legal system through three methodological
stages. In the first, the purpose is to identify what international law requires from States
regarding its obligation to provide reparations to internal armed conflict victims. This task will
be developed through inquiring for real contents and scope of reparations in international human
rights law and international humanitarian law instruments. The second phase will be devoted to
exploring what function has performed international law in the definition of war victims´
reparations by analysing the goals international community has attributed to international
standards and its relationship with justice. The final research stage will be focused on assessing
what international law requires from Colombian State regarding legal design for war victims
reparations, whether or not its authorities have fulfilled these obligations and how, and what
Mapiripán massacre, where civilians were killed and disappeared by paramilitary groups. Therefore, the
Court ordered compensation for victims and continued monitoring compliance with that judgment. In
November 2012, one of the awarded victims was reported as not harmed in the massacre, neither was her
next of kin. When asked to explain the reason to pose as a victim, she assured that it was because of
extreme poverty conditions she and her family were undergoing ("I lacked food and home"). See the
Inter-American Human Rights Court. Monitoring Compliance with Judgement in the Case of the
"Mapiripán Massacre” v. Colombia, of November 23, 2015.
25
d´Argent P, ‘Wrongs of the Past, History of the Future?’ (2006) 17 The European Journal of
International Law 279; De Greiff P, ‘Theorizing Transitional Justice’ in Melissa Williams, Rosemary
Nagy and Jon Elster (eds), Transitional Justice (New York University Press 2012)

9
usages have been given to international law on reparations in the legal design and
implementation of transformative reparations. Documentary analysis and coding will be the
primary methodological tool for data analysis.

The following is the proposed structure of chapters:

Chapter 1. The legal standing of reparations and applicability of international law. There are
two auxiliary questions for this chapter. 1. What is the Legal standing of reparations in
international law? 2. What sources of international law apply to address reparations for victims
of violations committed during the internal armed conflict? By enquiring into the juridical nature
of remedies, it will be possible to identify and understand the limitations of the implementation,
giving a more realistic image of what can be expected from the law.

Chapter 2. The scope of reparations from International Human Rights Law. The subquestion of
this chapter will be to what extent the gist of IHRL on reparations may result ambiguous or
indeterminate. The chapter involves a survey into this body of international law, seeking to
answer four auxiliary questions: when someone is entitled? That is the primary rights whose
violation justifies the obligation to redress. What does the remedy comprise? Which refers to the
concrete measures that have to be provided to the victim. Who is entitled? Meaning the person
who is considered victim and for such reason can claim remedies. Finally, who is responsible?

Chapter 3. The scope of reparations from International Humanitarian Law. The subquestion of
this chapter will be to what extent the gist of IHL on reparations may result ambiguous or
indeterminate. The chapter involves a survey into this body of international law, seeking to
answer four auxiliary questions: when someone is entitled? That is the primary rights whose
violation justifies the obligation to redress. What does the remedy comprise? Which refers to the
concrete measures that have to be provided to the victim. Who is entitled? Meaning the person
who is considered victim and for such reason can claim remedies. Finally, who is responsible?

Chapter 4. The goals of reparations in international law. The questions of this chapter will be 1.
Which goals have been attributed to international law on reparations? 2. To what extent the

10
definition of the goals of reparations can contribute to the understanding of ambiguities in
international rules on reparations for war victims? The purpose is to do a survey into theoretical
approaches underlying international law on reparations, and determine if ambiguities can be
disentangled from this more comprehensive insight.

Chapter 5. Reparations in the Colombian legal system. The chapter is aimed at addressing the
following questions: 1. What is the scope of the obligation to provide reparations for war victims
enshrined in international instruments ratified by Colombia? 2. What is the scope of the
obligations imposed by Inter-American Court of Human Rights when holding Colombian state
responsible for violations committed in the setting of internal armed conflict? 3. What has been
the legal framework by which Colombian has undertaken its obligation to provide remedies for
victims of the armed conflict? 4. Do ambiguities from international law on reparations arise in
the Colombian legal framework? The work will be focused on legal developments stemming
from the Victims' Law (Law 1448 of 2011) and the Peace Agreement signed with the guerrilla of
FARC in 2016.

Chapter 6. International Law on Reparations and the Gaps in Colombian Legal Framework on
Reparations. The chapter is intended to come up with answers to the following questions: 1. To
what extent international law on reparations has contributed to resolving ambiguities concerning
the scope of reparations for war victims in Colombia? 2. To what extent international law on
reparations has contributed to resolving ambiguities concerning the flexibility of the obligation to
provide remedies for war victims in Colombia? Particular attention will be paid to the Inter-
American Court’s case law and its orders to comply with judgments.

Work Plan

The following set of steps is intended to undertake the research and develop the question:

Year1 Year 2 Year3 Year 4 Year 4

2017-2018 2018-2019 2019-2020 2020-2021

February Defence
March Chapter 4. The
goals of reparations
in international

11
 law. (03-3-2019)
April

May
Chapter 2. The
scope of
reparations from
International
Human Rights
Law.
June
July Chapter
5. Reparations in
the Colombian legal
system.
07-7-2019
August Second draft
chapter 1.
September Second draft 2
Research (30-9-2018)
Proposal.
General
outline.
Work/Time
Plan.
October Chapter 3. The
scope of
reparations from
International
Humanitarian
Law (14-10-2018)
November Chapter
6. International
Law on Reparations
and  the  Gaps in
Colombian
Legal  Framework
on Reparations.
10-11-2019
December
Conclusions
22-12-2019
January Chapter 1. The  
legal standing of
reparations and
applicability of
international
law.

12
13