Clara Sandoval and Miriam Puttick Reparations for the ... · Miriam Puttick is Head of MENA Programmes for the Ceasefire Centre for Civilian Rights. The research for this report was

Clara Sandoval and Miriam Puttick

Reparations for the Victims of Conflict in IraqLessons learned from comparative practice

Cover photo:Civilians walk by the destroyed Al-NuriMosque as they flee from the Old Cityof Mosul on 5 July 2017, during theIraqi government forces’ offensive toretake the city from ISIS fighters.

© Ahmad Al-Rubaye/AFP/Getty Images

© Ceasefire Centre for Civilian Rights andMinority Rights Group InternationalNovember 2017

This report has been produced with the financial assistance of the Swiss Federal De-partment of Foreign Affairs and the European Union. The contents of this report arethe sole responsibility of the publishers and can under no circumstances be regardedas reflecting the position of the Swiss FDFA or the European Union.

Ceasefire Centre for Civilian Rights

The Ceasefire Centre for Civilian Rights is a new initiative to develop ‘civilian-ledmonitoring’ of violations of international humanitarian law or human rights, topursue legal and political accountability for those responsible for such violations,and to develop the practice of civilian rights. The Ceasefire Centre for CivilianRights is registered as a charity and a company limited by guarantee under Englishlaw; charity no: 1160083, company no: 9069133.

Minority Rights Group International

MRG is an NGO working to secure the rights of ethnic, religious and linguisticminorities and indigenous peoples worldwide, and to promote cooperation andunderstanding between communities. MRG works with over 150 partner orga-nizations in nearly 50 countries. It has consultative status with the United NationsEconomic and Social Council (ECOSOC) and observer status with the African Com-mission on Human and Peoples’ Rights (ACHPR). MRG is registered as a charityand a company limited by guarantee under English law; charity no: 282305,company no: 1544957.

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Dr Clara Sandoval is Senior Lecturer at the School of Law, University of Essex. Sheis Acting Director of the Human Rights Centre and Co-Director of the Essex Tran-sitional Justice Network. She is widely published on reparations and transitionaljustice issues and has worked as a consultant for the International Criminal Court,UN Women, and the UN Office of the High Commissioner for Human Rights.Miriam Puttick is Head of MENA Programmes for the Ceasefire Centre for CivilianRights. The research for this report was informed by a series of interviews under-taken by Mark Lattimer and Miriam Puttick in Baghdad, Ninewa and Erbil in March2017. The cooperation of the Iraqi General Directorate of the Council of Ministersand the Martyrs’ Division is gratefully acknowledged.

Table of contents

Introduction 4

The right to reparation under international law 7The duty under international human rights law 7The duty under international criminal law 8The duty under international humanitarian law 8

The scope and reach of the right to reparation 10Broad and flexible meaning of ‘victim’ 10The requirement to be adequate, effective and prompt 11Funding for reparation programmes 16

Case study: Iraq’s Law No. 20 on Compensation for Victims of Military Operations, Military Mistakes and Terrorist Actions 17Law No. 20 of 2009 and its 2015 amendment 17Progress on compensating victims from 2009 to present 18Gaps and challenges 19

Towards a comprehensive reparations scheme for victims of the conflict with ISIS 22Scope of violations and forms of reparations 22Responsibility of international actors and armed groups 23Processes and evidence 25

Conclusions and recommendations 27Endnotes 29

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There are compelling moral and political reasons why repa-rations matter to victims and societies as a whole. There areequally compelling legal reasons why states should providereparations, not least because they are bound by various in-ternational treaties that incorporate this obligation. Iraq hasratified most international human rights treaties includingthe International Covenant on Civil and Political Rights(party since 1971), the International Convention on theElimination of All Forms of Racial Discrimination (1970), theInternational Covenant on Economic, Social and CulturalRights (1971), the Convention against Torture (2011), and theConvention for the Protection of all Persons from EnforcedDisappearances (2010). Iraq has also ratified most treatieson humanitarian law, including the Geneva Conventions of1949 (1956).

Iraq already has significant experience in providing redressto victims. In 1991, the United Nations (UN) Security Councilset up the UN Compensation Commission to provide repa-rations to some victims of Iraq’s invasion of Kuwait. Subse-

quently, after Saddam Hussein was removed from power,the Iraq Property Claims Commission (later renamed theCommission for the Resolution of Real Property Disputes)was created to deal with land-related violations committedunder his regime. Finally, a more recent effort in Iraq is LawNo. 20 of 2009 on Compensating Victims of Military Opera-tions, Military Mistakes and Terrorist Actions (amended in2015), which provides redress to victims who have sufferedviolations since 2003.

While these efforts to provide redress in Iraq act as impor-tant precedents, the most recent phase of conflict raises newchallenges. Since 2014, fighting between government-alliedforces and ISIS has led to widespread violations, with mil-lions displaced, thousands killed, and targeted campaignsperpetrated against ethnic and religious communities.Moreover, damage to infrastructure and personal propertyis widespread. At the same time, state institutions in largeparts of the country have been left paralyzed and incapableof providing basic services to citizens.

Iraq is a country devastated by decades of conflict. Millions of victims have

suffered as a consequence of gross human rights violations and serious

violations of humanitarian law over the years, whether during Saddam

Hussein’s dictatorship, Iraq’s invasion of Kuwait, the occupation of Iraq by the

United States and its allies, or, more recently, as a result of the conflict with

ISIS. These victims have a right to adequate, prompt and effective redress for

harm suffered as a result of such violations.

Introduction1

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As Iraq prepares to rebuild and recover from theconflict with ISIS, providing redress to victims ofviolations is an important priority. However, it isquestionable whether the current legal and insti-tutional framework in Iraq is capable of effectivelyaddressing the violations committed, given theirenormous scale and the diversity of actors in-volved. The task of providing reparations to vic-tims of the conflict is also complicated by the factthat justice has still not been obtained by manyvictims of previous violations. The United Statesand other belligerents are arguably yet to take ap-propriate measures to redress the violations thattook place as a result of the 2003 invasion and oc-cupation of Iraq, and many victims of the SaddamHussein regime are still waiting to receive repara-tions decades after violations occurred, eventhough relevant laws and processes have been putin place.

This report seeks to inform the discussion onreparations in Iraq through analysis of both inter-national and domestic practice, with the goal ofencouraging the development of a comprehensiveframework that can provide adequate and effec-tive reparations to victims of the conflict from2014 onwards. The introduction provides anoverview of the concept of reparations and theirimpact on individuals and societies. Section 2 out-lines the relevant international legal instrumentsthat obligate states to provide reparations. Section3 expands further upon the scope and reach ofthis obligation, referring to examples of repara-

Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

tions programmes from international practice forthe purpose of comparison. Section 4 serves as acase study on the reparations scheme establishedby Iraq’s Law 20, and examines both the progressand challenges faced so far in granting repara-tions to victims in the midst of ongoing conflict.Section 5 suggests how lessons from the imple-mentation of Law 20 can be harnessed for thepurpose of designing a more comprehensive repa-rations scheme for victims of the most recent con-flict with ISIS, outlining ways in which theframework can be expanded and improved. Fi-nally, Section 6 ends with some conclusions andrecommendations.

While this report is mainly focused on monetarycompensation, it has to be remembered that theright to reparation is not exhausted simply by pro-viding compensation to victims. Full reparationshould also include justice – including effective in-vestigations leading to the identification of thoseresponsible for violations – and truth, as victimshave a right to know what happened. Moreover,states should take necessary measures to addressthe roots of conflict and repression to ensure thatviolations do not happen again. In other words,reparations programmes should take place aspart of a holistic approach to transitional justicethat will enable victims and society as a whole tomove forward from conflict. Isolated reparationpractices carry risks, as they do not properly ad-dress the harm suffered by victims and can evencause re-victimization.

6 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

Victims of serious violations of inter-national law such as gross humanrights violations or serious violationsof humanitarian law become targetsbecause they are dehumanized byperpetrators. The role of reparationsis to restore their humanity. Repara-tions aim to correct serious interna-tional wrongs that not only affectthose directly victimized, but alsothose around them and the societiesin which they live.

Pablo de Greiff, a philosopher bytraining and UN Special Rapporteuron the promotion of truth, justice,reparation and guarantees of non-recurrence, makes a very powerfulcase for reparations. Reparations areclearly about fairness, or in otherwords, about trying to undo theharm that has been caused to theextent possible. However, this pro-cess cannot occur in isolation whenmany others have suffered similar vi-olations. It is here that de Greiff callsfor a change of approach. While forhim fairness should be sought, itshould be conceived as an elementof a political project,1 as this wouldenable the pursuit of other aims,namely recognition, civic trust, socialreconciliation and democratization.2

Recognition is about reaffirming in-dividuals’ status as citizens by ac-knowledging them as both thesubjects and objects of action in asociety. Victims should be recog-nized as individuals whose rights as

Why do reparationsmatter?

citizens were violated3 and who areworthy of reparation in order towipe out this harm. As de Greiffwrites, ‘those whose rights havebeen violated deserve special treat-ment, treatment that tends towardsthe reestablishment of the condi-tions of equality.’ 4

Civic trust is about restoring trustamong citizens.5 In states devastatedby authoritarianism or conflict, rela-tionships of trust break down. Indi-viduals, not only victims, distrust thestate and its institutions as well astheir fellow citizens. Therefore, repa-rations function to help re-establishcivic trust as they symbolize the inten-tion of the state and fellow citizens torebuild relations based on equalityand respect.6 A reparation effort thatis genuine sends the message thatvictims matter to society and thatwithout their participation a societywill not be able to move forward.

Reconciliation, according to deGreiff, refers to:

‘the condition under which citizens cantrust one another as citizens again (oranew). That means that they are suffi-ciently committed to the norms andvalues that motivate their ruling insti-tutions, sufficiently confident that thosewho operate those institutions do soalso on the basis of those norms andvalues, and sufficiently secure abouttheir fellow citizens’ commitment toabide by and uphold these basic normsand values.’ 7

De Greiff, however, notes that recon-ciliation and democracy are ultimate

goals that are not exhausted by tran-sitional justice or by its measures, in-cluding reparations. Indeed, hestates that ‘the most that transitionaljustice measures can do is to givereasons to individuals to trust insti-tutions’.8

Finally, transitional justice and itsmeasures can make a key contribu-tion to the achievement of democ-racy. Here, de Greiff does not have inmind only the rule of law. Instead,what is crucial is how victims and so-ciety as a whole experience and re-late to mechanisms such asreparations, and whether they cre-ate forms of participation. Therefore,in addition to building systems oflaw that are independent, impartialand certain, de Greiff believes that itis crucial to provide victims, and so-ciety as a whole, with institutional ex-periences that allow them to beactive citizens and to act democrati-cally. However, he recognizes thattransitional justice, or for that mat-ter, reparation, cannot deliverdemocracy, but the experiences thatits mechanisms create can triggerimportant democratic behaviour inthe future.9

In sum, reparations matter not somuch because they fully redress theharm that victims have suffered interms of equal pay for equal harm,but because, if well conceived, theyprovide a transformative experienceto victims. Reparations can em-power, dignify and return a voice tovictims, as well as provide them withthe opportunity to become agents ofsocial change.

This duty of states to provide reparation to individuals iswell established today under international human rightslaw and international criminal law. Such a duty also exists,although in limited terms, under humanitarian law.10

A key dimension to note is that this obligation is not boundterritorially. Therefore, a state is responsible for violationsof human rights (and for that matter of international hu-manitarian law) even if they are committed outside its ownterritory. This has been the reiterated position of UN and re-gional human rights bodies on the issue regardless ofwhether the violation happened during a conflict situationor not. Indeed, the Human Rights Committee, the body thatoversees the International Covenant on Civil and PoliticalRights, states in General Comment 31 that: ‘the enjoymentof Covenant rights is not limited to citizens of States Partiesbut must also be available to all individuals, regardless ofnationality […] who may find themselves in the territory orsubject to the jurisdiction of the State Party’.11 The commit-tee also noted that ‘this principle also applies to those withinthe power or effective control of the forces of a State Partyacting outside its territory …’ 12

The duty underinternational humanrights lawThe first international human rights treaties to be en-acted, such as the International Covenant on Civil and Po-litical Rights and the Covenant on Economic, Social andCultural Rights, as well as regional treaties such as the Eu-ropean Convention or the American Convention onHuman Rights, did not contain explicit norms recognizingthe right of individuals to obtain reparation for harm suf-fered as a result of the violations of rights incorporated inthose treaties. However, those treaties establish the gen-eral obligation that states have to respect and ensurerights of individuals recognized under the treaties, whichincludes the obligation to have adequate and effectiveremedies in place to deal with violations, regardless oftheir gravity. One such remedy is precisely the duty tomake reparation.13 This has been the authoritative and re-iterated interpretation given by bodies with jurisdictionto apply and interpret those treaties.

The right to reparationunder international law

There is an established principle that the wrongful breach of an international

obligation imposes on states the duty to redress the harm caused to another

state and cease the violation of the international rule.10 While this rule was for

centuries applicable when a state breached an international obligation owed to

another state, today it is recognized that such a duty can also be owed to

individuals affected by certain violations of international law.

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The right to reparation, however, has been explic-itly established in various other human rightstreaties. For example, Article 14 of the UN Conven-tion Against Torture explicitly recognizes the rightof victims to compensation and rehabilitationwhen breaches occur. Similar articles are alsopresent in regional treaties dealing with torture,such as the Inter-American Convention to Preventand Punish Torture. Newer treaties, such as theUN Convention on Enforced Disappearances, con-tain an even stronger and more holistic approachto the right to reparation. Article 24.4 of the Con-vention reads as follows: ‘Each State Party shallensure in its legal system that the victims of en-forced disappearance have the right to obtainreparation and prompt, fair and adequate com-pensation.’ The article also elaborates on theforms of reparation, the concept of victim, theright to know the truth and other related obliga-tions held by states parties.

Treaty law, as described above, has been comple-mented and strengthened by the 2005 Basic Prin-ciples and Guidelines on the Right to a Remedyand Reparation for Victims of Gross Violations ofInternational Human Rights Law and Serious Vio-lations of International Humanitarian Law (BasicPrinciples). Work on the Basic Principles began in1989, just over four years after the signing of theUN Convention Against Torture in December 1984.While many years passed before they were final-ized and adopted by consensus by the UN GeneralAssembly in 2005, the Basic Principles helped toconsolidate a common view about the obligationto provide reparation, both at the procedural andat the substantive level.14 Today it is possible to as-sert that victims have a right to reparation for vi-olations of human rights law, and that this rightentails adequate, prompt and effective redress15

for victims in the form of compensation, restitu-tion, satisfaction, rehabilitation, and guarantees ofnon-repetition.16

The duty underinternational criminallawThe Rome Statute of the International CriminalCourt (ICC) recognizes in Article 75 that victims ofinternational crimes under the jurisdiction of thecourt, namely crimes against humanity, war

crimes, genocide and aggression, are entitled toreparation and specifically refers to three formsof reparation: restitution, compensation and reha-bilitation. The ICC is a criminal tribunal and there-fore it decides on reparations owed by convictedperpetrators (and not states or armed groups) totheir victims. While this is an important develop-ment under international criminal law, its reachcontinues to be limited given that the ICC cannotexercise jurisdiction over all persons responsiblefor international crimes and that it cannot awardreparations to all victims of the situation but onlyto some of them.

The duty underinternationalhumanitarian lawUnder humanitarian law there is no express recog-nition of the right to reparation for victims of vio-lations except for two articles that apply tointernational armed conflicts, that is to say, conflictsbetween two or more states. The first is Article 3 ofthe Hague Convention (IV) respecting the Laws andCustoms of War on Land and its annex (1907),which establishes that ‘[a] belligerent party whichviolates the provisions of the said Regulations shall,if the case demands, be liable to pay compensation.It shall be responsible for all acts committed by per-sons forming part of its armed forces.’ Such a normis almost replicated in Additional Protocol I to theGeneva Conventions in Article 91, which states that:‘[a] Party to the conflict which violates the provi-sions of the Conventions or of this Protocol shall, ifthe case demands, be liable to pay compensation. Itshall be responsible for all acts committed by per-sons forming part of its armed forces.’ It should benoted that such articles refer specifically to com-pensation and not to other forms of reparation.

While there is otherwise silence on the issueunder international humanitarian law treaties,the Basic Principles on the Right to a Remedy andReparation included such a right not only in rela-tion to gross violations of human rights but alsoin relation to serious violations of internationalhumanitarian law. Drafters of the Basic Principleshad in mind violations that amount to interna-tional crimes. While some states were dissatisfiedwith the inclusion of serious violations of interna-tional humanitarian law, the Basic Principles


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were adopted at the UN General Assembly by con-sensus.

Still, although the Basic Principles reflect interna-tional law as it stands today in relation to seriousviolations of international humanitarian law, thelack of a specific norm under humanitarian treatylaw constitutes a gap that needs to be corrected.Nevertheless, lack of express recognition of thisright should not be seen as an obstacle to claimingreparation as indeed there is legal recognitionunder both human rights law, which also appliesin times of conflict or occupation, and under inter-national criminal law, if violations of certain grav-ity occur.17 An additional issue not resolved by theinternational legal instruments already men-

tioned is whether non-state actors, such as armedgroups, have an obligation to provide reparationfor harm suffered as a result of their actions. Thispoint is particularly important when armedgroups are considered to have significant re-sources but there are no laws indicating that theyshall make reparation to victims. An importantprecedent in this regard is contained in the Colom-bian Peace Agreement signed with the Revolution-ary Armed Forces of Colombia (FARC) in which,after much negotiation, the FARC not only recog-nized the right to reparation of victims but alsoagreed to support the reparations process by help-ing with social work, demining fields and con-tributing financial assets obtained through thearmed conflict.18


Broad and flexiblemeaning of ‘victim’There has been much debate in case law and the academicliterature over the question of who qualifies as a victim forthe purposes of reparation.19 However, there is consensusthat the term cannot be defined in narrow terms. Indeed,there is a valid and implicit assumption that when viola-tions of human rights or humanitarian law occur, victimsare not only those who suffered direct harm (the personwho is tortured or disappeared, for example) but also othersaffected by the violation (such as the next of kin of a persontortured or disappeared) or a witness of the events. Both theBasic Principles and the UN Convention on Enforced Disap-pearances offer broad definitions of the term. The BasicPrinciples, for example, state that:

‘[V]ictims are persons who individually or collectively suf-fered harm, including physical or mental injury, emotionalsuffering, economic loss or substantial impairment of their

fundamental rights, through acts or omissions that consti-tute gross violations of international human rights law, orserious violations of international humanitarian law. Whereappropriate, and in accordance with domestic law, theterm “victim” also includes the immediate family or depen-dants of the direct victim and persons who have sufferedharm in intervening to assist victims in distress or to pre-vent victimization.’ 20

Domestic reparation programmes have also adopted a flex-ible concept of victim. For example, the Victims and LandRestitution Law (Law 1448/2011) in Colombia defines vic-tims as ‘persons who individually or collectively sufferedharm as a result of violations that occurred from 1 January1985’, and also includes family members and ‘persons whohave suffered harm when intervening to assist a potentialvictim or to prevent victimization’.21

An important exception to the above has been the tendencyin various experiences around the world to prevent the con-

The Basic Principles on the Right to a Remedy and Reparation, the Set of

Principles to Combat Impunity (2005) and the jurisprudence of the Inter-

American Court of Human Rights have been essential for defining the scope

and reach of the right to reparation, at least for gross human rights violations

and serious violations of humanitarian law. While there are areas where

questions remain as to what the right entails, there are some basic principles,

both substantive and procedural, that are broadly accepted, as detailed below.

The scope and reach ofthe right to reparation3

cept of victim from being extended to members ofarmed groups who could be perpetrators of viola-tions themselves. For example, in Colombia, underthe Victims and Land Restitution Law, members ofarmed groups, such as the FARC, cannot be consid-ered as victims for purposes of that law unlessthey were still children when they left the armedgroup.22 In Peru, the law creating the Comprehen-sive Reparations Plan was even more limited. It es-tablished that members of the armed groups willnot be considered as victims and as result they willnot be beneficiaries of reparations’.23

However, there is nothing under international lawthat would indicate that a person loses his or herright to reparation as a result of being a member ofan armed group Indeed, there is evidence of the op-posite. The Inter-American Court of Human Rights,in the case of Bamaca v. Guatemala concerning thedisappearance of a guerrilla member during theconflict, awarded him, his partner and his familyreparations for harm suffered (pecuniary and non-pecuniary damages).24 So, in principle, the legalityof a programme that impedes the right to repara-tion of certain categories of victims could be chal-lenged for contravening international standards.

At the very least, efforts should be made to distin-guish among members of armed groups and totreat them differently depending on whether ornot they themselves were perpetrators of seriousviolations of international law.25 Another basis todistinguish among perpetrators could be the de-gree of vulnerability of the perpetrator. For exam-ple, many children have been recruited worldwideas child soldiers, and states have failed to preventtheir recruitment despite their obligations under

the Convention on the Rights of the Child and itsOptional Protocol on the involvement of childrenin armed conflict. Therefore, there are good moralarguments as well as legal ones to consider childsoldiers as victims entitled to reparation. Indeed,child soldiers have been awarded reparation bythe ICC26 and were afforded special treatment inSierra Leone.27 If perpetrators in particular vulner-able situations are not recognized as entitled toreparations, at the very least demobilization, dis-armament and reintegration strategies should bedesigned and implemented that could have a sim-ilar effect to that of reparations.

The requirement to beadequate, effectiveand promptReparations aim to wipe out all the harm causedto the victim. However, when gross human rightsviolations and serious violations of humanitarianlaw are at stake, full reparation can be considereda guiding principle but is unlikely to materializefor different reasons, including the numbers ofvictims (thousands if not millions of them); thenon-existence of state institutions capable ofreaching victims; lack of financial and human re-sources to design and implement reparations; andthe continuation of violence and conflict. Never-theless, the Basic Principles state that reparationsshould be ‘adequate, effective and prompt.’28

Although neither the Basic Principles nor other in-ternational instruments define these terms, im-portant guidance can be derived from theinternational legal rule that allows exceptions to

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the requirement of exhausting domestic remedieswhen these remedies are not adequate or effec-tive. Here, a remedy is considered to be adequatewhen it is suitable to address the violation atstake29 and it is effective when, besides being ade-quate, it ‘is capable of producing the result forwhich it was designed’.30 Prompt refers to theavailability of the remedy within a reasonable pe-riod of time. These concepts are directly applicableto the right to reparation as it is also a remedy thatshould be available to individuals at the domesticlevel to address violations of human rights. How-ever, the nature of the right to reparation, and itsapplication to gross human rights violations andserious violations of humanitarian law, calls forfurther specification of what these adjectivesmean in the context of redress.

AdequateWhen serious violations of international law areat stake, the question of which remedies are ade-quate to deal with the violations and the harm thatensues from them is critical. Part of the answer iscontained in the five substantive forms of repara-tion available to deal with such harm, as found inthe Basic Principles, the Principles to Combat Im-punity and the jurisprudence of international bod-ies: restitution, compensation, rehabilitation,satisfaction and guarantees of non-repetition.While restitution is the preferred form of repara-tion under public international law, it is not al-ways sufficient, possible or desirable underhuman rights law and therefore other forms of re-dress are needed to wipe out the consequences ofthe violation depending on the nature of eachcase.31 Here, however, there has been a tendencyto prioritize compensation over other forms ofreparation. While compensation is important, it isnot sufficient to adequately address the harm suf-fered by victims. Moreover, survivors of seriousviolations may see compensation as dirty money.

Reparations should also be individual, or both in-dividual and collective, for them to be adequate.32

The Basic Principles are based on the idea that theright to reparation is primarily an individual rightbut also recognizes the existence of collective vic-tims and collective reparations.33 While interna-tional law has not defined collective reparations,it is standard practice today domestically and in-ternationally to award collective reparations togroups of victims when there is communal harm

that cannot be wiped out simply by providing in-dividual reparations. Therefore, an adequate rem-edy in terms of reparation would considercarefully how to use various forms of reparation,including individual and collective reparation, tomaximize its potential for providing full redressto victims and should be assessed on those terms.34

Remedies should also take due consideration ofthe victim and provide the necessary measures toensure that reparation addresses the harm causedwithout leading to re-victimization. This is partic-ularly relevant in relation to vulnerable groupssuch as women, children, LGBTI (lesbian, gay, bi-sexual, transgender and intersex) persons and vic-tims of sexual violence, who are more vulnerableto violations. While international law does notspecify how reparation programmes should be de-signed to avoid re-victimization, various measureshave been taken, in practice, to achieve this goal.These have included consulting victims on the waythat reparation should be made, ensuring thatthere is work on guarantees of non-repetition, en-abling victims to have their voices heard so thatthey can avail themselves of remedies and repara-tions, fighting stigma, adopting affirmative actionmeasures, and establishing and delivering on ur-gent reparation measures.35

Other factors should also be taken into accountwhen deciding what remedies would be adequateto deal with harm caused, including the religious,cultural and political context. For example, provid-ing land restitution to internally displaced persons(IDPs) would not be adequate when conflict is stillongoing and safety conditions are not in place.Providing compensation to victims of sexual vio-lence without addressing the many ways in whichtheir bodies and minds were affected, and thestigma that often ensues, would also be inade-quate.

While a combination of forms of reparation is de-sirable, it is equally important that each repara-tion measure is also adequate. For example,rehabilitation is a crucial form of reparation thatshould always be available for victims of seriousviolations. Rehabilitation requires access to ade-quate health services for a prolonged period oftime both for physical and mental health issues. Insuch a context paying compensation for such ser-vices would not necessarily allow victims to deal


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in the best way possible with the harm suffered.36

On the other hand, if the victim is a refugee whocannot return to the country where the violationsoccurred, compensation might be the best meanspossible to ensure access to adequate health ser-vices in another country.

Reparations provided to victims without recogni-tion of responsibility, full investigation of the vio-lations suffered and disclosure of the truth aboutwhat happened, would also place in question anyprocess of redress and would indicate that repara-tions have not been adequate.

The Chilean reparation programme presents aninteresting comparison. For example, for victimskilled by Pinochet’s regime, it offers a comprehen-sive range of reparations, including a one-timereparation payment (bono), a pension for life forthe widow, scholarships for the children and freeaccess to the Programa de Reparación y AtenciónIntegral en Salud y Derechos Humanos, known asPRAIS (The Program for Reparation and IntegralHealth Assistance for Victims of HumanRights)health care system for the widow and chil-dren. It even allows children to opt out of militaryservice if they so wish.37 In addition to this, formsof satisfaction have also been used such as namingstreets after victims and setting up monuments tohonour the victims.38 Most of these measures havealso been applied to victims of enforced disappear-ances and torture.

The Victims and Land Restitution Law (2011) inColombia also stands out in terms of design. It notonly includes all forms of reparation for victims,including land restitution and housing restitution,but also provides great detail in relation to the wayeach one should be implemented and the way theyare jointly provided. It is of particular importanceto note that the law also includes, in addition to allforms of reparation, various forms of assistancethat it explicitly considers as complementary toreparations and not as a replacement for them.39

While Chile and Colombia are landmark cases inthe design of reparation programmes, it must benoted that they are countries with strong state in-stitutions and relatively low levels of corruption.In Chile, reparation only began after the dictator-ship had ended and improved over the years afterthe dictatorship. In Colombia, the law was adopted

and began to be implemented in the midst of thearmed conflict but there are relatively strong in-stitutions in the country.

In other countries devastated by war that lackedthe resources, strong state institutions and politi-cal will to adequately redress victims, differentpackages of reparations had to be designed. InSierra Leone, the Truth and Reconciliation Com-mission recommended in 2004 that reparations beprovided to certain categories of victims who werein a situation of extreme vulnerability and whosuffered the most during or as a consequence ofthe conflict, namely amputees, others wounded inthe war, victims of sexual violence, child victimsand war widows. Taking into account SierraLeone’s limited resources, the Truth and Reconcil-iation Commission also recommended providingvictims with social services and means to enhancetheir livelihood such as ‘health care, pensions, ed-ucation, skills-training and micro-credit/projects,community and symbolic reparations’.40 However,in practice the recommendations of the TruthCommission have not fully materialized.

EffectiveReparations should also be effective. This meansthat they should try as far possible to wipe out theharm caused. While it is almost impossible tobring things to the status quo ante in a contextwhere gross violations are at stake, reparationsneed to be designed and implemented in a man-ner that allows victims to address the harm in-curred to the maximum extent. In addition thesubstantive dimensions of redress, the processthrough which victims access reparation is alsocrucial, as acknowledged in the Basic Principles.

Institutional structureIn contexts of generalized victimization, statesoften opt for domestic administrative reparationprogrammes as a means of delivering redress tovictims. In such circumstances, when there maybe thousands if not millions of victims, adminis-trative reparation programmes are more effectivethan tribunals at delivering redress quickly, atminimal expense to victims, and with lower stan-dards of evidence. These types of programmes areencouraged by the Basic Principles as well as thePrinciples to Combat Impunity.41 There is no one-size-fits-all when it comes down to an ideal do-mestic administrative reparation programme.


14

However, there is a tendency to create new stateinstitutions with a specific mandate to providereparations, and with an assigned budget to workfor a specific period of time. It should be notedthat the establishment of administrative repara-tions programmes does not mean that judicialprocesses should not be available, as all victimshave the right to adequate and effective judicialremedies to claim reparation.

In Chile, the Rettig Commission – a truth commis-sion – was established in 1990 to deal with extra-judicial killings and disappearances that occurredduring Pinochet’s regime between 1973 and 1990.The commission was also mandated with identify-ing the individual victims of extrajudicial killingsand disappearances, and recommending repara-tions. This served as an impetus to create the Cor-poración Nacional de Reparación y Reconciliación(CNRR), a national institution responsible for pro-viding reparations, determining the whereaboutsof the disappeared, and continuing to identify vic-tims.42 The CNRR was created as a government in-stitution under the direction of the Ministry ofInterior.43 While it was responsible for repara-tions, it delivered them in cooperation with otherstate institutions such as the PRAIS health system.

Torture survivors were not part of the mandateof the Rettig Commission. Only in 2004 did Chileestablish the Valech Commission (Comisión Na-cional sobre Prisión Politica y Tortura) to establishthe truth surrounding victims of torture. The com-mission’s mandate had to be extended twice to en-sure that all victims could be included. The ValechCommission identified victims, while other stateinstitutions were mandated with providing repa-rations. For example, the PRAIS health system wasmandated to provide rehabilitation to victims,and the Pensions Institute (Instituto de PrevisiónSocial) was responsible for paying pensions tosurviving victims. The commission finished itswork in 2011.

In contrast, Colombia’s 2005 Justice and Peace Lawtasked the Justice and Peace Jurisdiction with pro-viding reparations to victims. This system, how-ever, proved ineffective and slow in deciding oncases, and awarded reparations amounts to vic-tims that were too high to be extended to all cases.Learning from its mistakes, in 2011 Colombia en-acted the Victims and Land Restitution Law,

thereby moving from a reparation system that tookplace through the judiciary to a domestic repara-tion programme. The law created the Unit for Vic-tims (Unidad para las Victimas), responsible forcoordinating all state institutions involved in theNational System to Redress Victims and supportingvictims’ participation in the reparation process.44

Furthermore, given the acute problem of internaldisplacement in Colombia (considered at the timeto be the highest in the world), the Unit for LandRestitution was also established to create a registryof all land that had been abandoned or lost duringthe conflict, to receive restitution claims and to pre-sent the cases before the restitution judges on be-half of victims. Colombia chose to pursuerestitution as the preferred form of reparation,only considering compensation where restitutionwas materially impossible. Between 2011 and 2016,the unit received 90,395 restitution claims. As of2016, 51 per cent had been resolved and the resti-tution judges had issued 1,812 judgments.45

Processes and evidenceAs important as the institutional structure of repa-rations mechanisms are the process and rules theyapply. Domestic reparation programmes requireclear, accessible and summary procedures and re-laxed standards of evidence.46

In Colombia, for example, under the Victims andLand Restitution Law, any person can register asa victim and the administrative process is fast andeffective. Moreover, the burden of proof falls onthe state, not the victim.47 The law indicates thatstate authorities should always presume the goodfaith of victims and their ability to corroborate theharm they have suffered by any means legally ac-ceptable.48 The law also establishes various prin-ciples that should be applied to cases wherepersons allege to have been victims of sexual vio-lence. For example, the previous sexual behaviourof the victim cannot be used as evidence to denyreparations.49 The law also contains important ev-identiary rules in relation to land. For example, ifa victim seeking land restitution is able to showthat he or she owned, possessed or occupied theland, and the person has been recognized as anIDP, the burden of proof rests on the party allegingthe opposite unless the person is also an IDP.50

In the case of Chile, a person would qualify as avictim if recognized as such by the Rettig Commis-


15

sion or the Valech Commission. To be recognizedas a survivor of detention and/or torture duringthe dictatorship, the person had to have been de-tained and/or tortured for political reasons, bystate agents or people acting with their acquies-cence, between 1973 and 1990. The standard of ev-idence for victims was low, requiring them tosimply complete a form with key informationabout the allegations such as places of detention,dates and description of facts, and then submit theform to the commission. The commission wouldthen invite the person to an interview to take hisor her testimony, then investigate the allegationsusing a database of information compiled fromgovernmental, non-governmental, and interna-tional sources.51 Most people who appeared beforethe commission were recognized as victims, lead-ing to more than 50,000 recognized survivors ofdetention and/or torture.52

Registries of victimsOfficial registries of victims enable access to repa-rations.53 Not all countries have set up registriesof victims, but the more the number of victimsgrows in armed conflicts, the more they constitutea suitable tool to identify victims and facilitatereparation.

In Colombia, a registry of victims (Registro Únicode Victimas) was created by Article 154 of the Vic-tims and Land Restitution Law. Before 2011, thecountry had many registries of victims, includinga large registry on internal displacement, butthere was no clarity as to the number of victimsand the nature of the violations they had suffered.Therefore, Colombia decided to create a unifiedsystem as part of the Unit for Victims, linking allexisting information and identifying new victimswho could provide reliable information about vic-tims of the armed conflict and specific humanrights violations. As of June 2017, there were8,421,627 victims registered in the country.54

In Peru, a registry was also created as part of theComprehensive Reparations Plan. The institutionresponsible for it is the equivalent to the Unit forVictims in Colombia, called the Reparations Coun-cil (Consejo de Reparaciones).55 It has the author-ity to register both individual and collectivevictims but expressly excluded the registration ofvictims that were at the same time members ofarmed groups.

PromptIn addition to the existence of adequate and effec-tive mechanisms to identify and register victims,it is equally important to ensure that victims haveaccess to prompt reparation. Lack of access toprompt reparations makes even an adequate rem-edy ineffective, and therefore promptness is anessential element of an effective remedy.

Domestic reparation programmes are frequentlyinstituted many years after human rights viola-tions or violations of humanitarian law havetaken place, often in the context of transitionaljustice processes. This means that reparations, ifthey happen, are provided very late in the processwhile harm often continues to ensue. For exam-ple, in Sierra Leone, reparations were only put inplace in 2007 and became partially effective be-tween 2007 and 2009, although the conflict endedin 2003. Similarly, in Chile, although the worsthuman rights violations happened during the firstfive years of the dictatorship (1973–8), they onlybegan to be redressed in 1992.

It is a challenge to provide reparations in themidst of conflict or repression, as there is usuallyinsufficient political will and a lack of adequateinstitutions to implement them. In such extremesituations, other remedies should be made avail-able to contain or to deal with the harm sufferedby victims, such as humanitarian aid. Urgentreparation measures should also be adopted forthose most in need. While urgent measures havenot been broadly used across states, they shouldbe encouraged and they have proven importantwhere they have been implemented.

In South Africa, for example, they were used inthe form of urgent interim reparations. The SouthAfrican Truth and Reconciliation Commission’srationale for urgent interim measures was thatvictims would receive ‘information about and/orreferral to appropriate services […] as well as fi-nancial assistance in order to access and/or payfor services deemed necessary to meet specificallyidentified urgent needs’.56 Urgent needs were de-fined as ‘medical, emotional, educational, mate-rial and/or symbolic needs’.57 The Committee onReparations at the Truth Commission identifiedbeneficiaries and for the most part provided themwith cash payments that varied from US$250 toUS$713 depending on the number of dependants.


16

Urgent reparations were paid between 1998 and2001, benefiting more than 14,000 victims.58

Urgent measures were also used in Sierra Leone.These measures were originally envisaged to in-clude different types of victims, such as am-putees, victims of sexual violence, andconscripted children, as well as different types ofmeasures. However, in practice, the programmeplayed out differently.59 Interim payments ofabout US$100 were granted predominantly toamputees and victims of sexual violence. Approx-imately, 21,700 victims received this interim re-lief.60 Besides this payment, a few victims alsobenefited from urgent medical care. The Interna-tional Center for Transitional Justice (ICTJ) indi-cates that 31 victims in critical conditionunderwent surgery and 235 victims of sexual vi-olence received medical treatment.61

Urgent priority payments are also known to Iraqas the UN Compensation Commission took theminto account when considering claims related todamage caused during Iraq’s invasion of Kuwait.Of the six categories of claims eligible for presen-tation before the commission, categories A, B andC were considered urgent. Category B, in particu-lar, focused on serious personal injury and death,and as a consequence such claims were consid-ered and paid with priority.62 Category B claimsconstituted a small number and therefore thecommission was able to deal with themefficiently.63 A total of 3,935 claims were processedurgently and with priority under Category B.64

Funding for reparationprogrammesPart of the success of a domestic reparation pro-gramme depends on allocation of financial re-sources to make it viable. While differentmechanisms could be used to this end, the estab-lishment of special reparation funds is a commonpractice.

In Colombia, for example, the 2005 Justice andPeace Law created a Fund to Redress Victims,which was later put under the responsibility ofthe Unit for Victims.65 Since it was created underthe Justice and Peace Law, which dealt with thecriminal responsibility of members of paramili-tary groups that were demobilized under the law,the fund obtained financial resources and assetsfrom members of paramilitary groups, resourcesallocated from the national budget, internationalfunding, and donations. Today, the fund paysreparations to victims under both the Justice andPeace Law and the Victims and Land RestitutionLaw.66 A special fund for land restitution was alsoestablished under the Victims and Land Restitu-tion Law responsible for managing all aspects ofland recovery and restitution.

In the case of Iraq, the UN Compensation Commis-sion paid reparations from the United NationsCompensation Fund. Notably, the fund received 5per cent of the proceeds from Iraq’s oil exports toredress victims.67

In Sierra Leone, the establishment of a fund waspart of the Lomé Agreement (1999),68 and was alsoa recommendation of the Truth and ReconciliationCommission.69 The establishment of the fund onlytook place in 2009, a decade after it was envisagedin the Peace Agreement. Contributions to the fundhave been minimal and highly dependent on in-ternational cooperation. For example, during thefirst year of the reparation programme, the UnitedNations Peace Building Fund gave US$3 million,with Sierra Leone contributing only US$246,000.70

The Rome Statute that established the ICC also cre-ated the Trust Fund under Article 79. The fundhas a double mandate. Not only does it implementthe reparations ordered by the ICC in the cases itdecides, but it also provides assistance pro-grammes to victims. The fund is financed by pri-vate and public sources, including states’voluntary contributions, and receives court-or-dered fines and forfeitures.


This section explores Law 20 in depth, assessing progress inproviding reparations to victims under its framework whilealso discussing some of the shortcomings in the process todate. It draws on analysis of the law itself and related docu-ments, as well as interviews conducted with stakeholdersin Iraq and media sources.

Law No. 20 of 2009 and its 2015 amendment Following the 2003 US-led removal of Saddam Hussein, Iraqwitnessed a near-total breakdown in law and order. Theproliferation of armed groups which formed to resist theUS-led invasion, coupled with the occupation’s controversialand often divisive policies, led to an upsurge in generalizedviolence. During the worst two years of bloodshed, from

2006 to 2007, more than 55,000 civilians were killed in at-tacks that were often carried out along sectarian lines.71

It was in this context that the Iraqi parliament passed LawNo. 20 on Compensation for Victims of Military Operations,Military Mistakes and Terrorist Actions in late 2009. The lawcovers all natural persons harmed by the types of incidentsspecified in the title and also provides support to their familymembers. It applies retroactively to incidents occurring onor after 20 March 2003, the date of the American invasion ofIraq. Initially, the law was envisaged to apply to both civiliansand military personnel, but responsibility for the latter waslater shifted to the Ministry of Defence under a separate law.

In terms of the specific types of damage covered, the lawidentifies five categories eligible for reparation: martyrdomor loss;72 full or partial disability; injuries and conditions re-

Case study: Iraq’s Law No. 20 on Compensation

for Victims of Military Operations,

Military Mistakes and Terrorist Actions

As detailed in the Introduction, Iraq has experience with a number of

reparations initiatives corresponding to the different periods of conflict and

dictatorship through which the country has passed. These have included

reparations awarded in the aftermath of Iraq’s invasion of Kuwait and various

reparations schemes put into place after 2003 for victims of the Saddam

Hussein regime. The most relevant scheme for the purposes of this report,

however, is the scheme created by Law 20 on Compensation for Victims of

Military Operations, Military Mistakes and Terrorist Actions. Passed in 2009 and

amended in 2015, the law remains in force, raising the question of whether it

can act as an effective basis for compensating victims of the conflict with ISIS.

4

18

quiring short-term treatment; damage to property;and damage affecting employment and study. Forthe first three categories, all of which involve bod-ily harm, the law stipulates three types of repara-tion: a one-time grant, the value of which rangesfrom IQD1.75 million to IQD3.75 million (US$1,480to $3,173) depending on the severity of the case; amonthly pension; and a plot of residential land. Allthree types of reparation are awarded directly tothe victim in the case of disability or injury, or tothe family of the victim in the case of martyrdomor loss. The family of the victim includes the par-ents, sons, daughters, spouse, brothers and sistersof the victim. Islamic inheritance law determineseach relative’s share in the compensation amount.

Compensation for damage to property is awardedon a case-by-case basis depending on the assessedvalue of the item and the extent of the damage in-curred. The types of property eligible for compen-sation are wide-ranging and include vehicles,houses, agricultural lands, fixtures, stores and in-ventory, and companies. Finally, damage affectingemployment and study is redressed by reinstatingthe victim to his or her former place of study orwork, and paying any outstanding salaries or ben-efits for the period in which the victim was pre-vented from working.

In terms of the institutional structure for receivingand assessing compensation claims, the law cre-ates a Central Committee in Baghdad, headed by ajudge representing the Higher Judicial Council andformed of representatives of eight governmentministries and the Kurdistan Regional Govern-ment (KRG). The law also creates subcommitteeswith a similar composition in each governorateand region. Victims wishing to claim compensa-tion are required to apply through one of the sub-committees, which are responsible for preparingthe case files and conducting investigations intothe incidents in question. In cases of martyrdomor injury, the subcommittees themselves issue thedecision on compensation, whereas for cases ofproperty damage or lost persons, they issue a rec-ommendation that is forwarded to the CentralCommittee for decision. The Central Committeealso reviews appeals submitted by compensationclaimants to prior decisions.

In 2015, the Iraqi parliament approved an amend-ment to the law that included a series of significant

changes. The scope of the law was expanded to in-clude both natural and legal persons, as well as in-jured members of the Popular Mobilization Forces(PMF) and the Peshmerga. Kidnapping was addedas a form of damage covered under the law, andboth kidnapping and loss are now treated in thesame way as martyrdom for the purposes of com-pensation. The 2015 amendment also created anew division within the Martyrs’ Foundation73 forthe victims of military operations, military mis-takes and terrorist actions, and allocated it respon-sibility for forming subcommittees in eachgovernorate responsible for receiving all types ofclaims. The role of the Central Committee in Bagh-dad is now limited to making the final decision oncases of property damage and reviewing appealson other types of cases. The composition of the Cen-tral Committee was also changed to include onlythree ministries, as well as representatives of theKRG, the Iraqi High Commission for Human Rights,and a representative of the victims themselves.Lastly, the one-time grant amounts provided underthe law were increased and now range fromIQD2.5 million to IQD5 million (US$2,115 toUS$4,230), depending on the gravity of damage.

Progress oncompensating victimsfrom 2009 to presentOfficial figures obtained from the Central Com-mittee show that considerable progress was madein compensating victims of military operations,military mistakes and terrorist actions since Law20 was passed. During the period 2011–16, deci-sions were reached on a total of 65,046 cases in-volving property damage and 118,894 claimsinvolving martyrs, injuries and lost persons. Thetotal amount awarded to victims over this five-year period was more than IQD420 billion (overUS$355 million).

It should be noted that the years in Table 1 corre-spond to the year in which the claim was pro-cessed, and not necessarily the year in which theincident took place. Since the law applies retroac-tively and claims are processed in the order theyare received, even the most recent yearly figureslikely include claims for incidents dating back asearly as 2003. Moreover, since the subcommitteesin Anbar, Salahuddin and Ninewa governorates


19

were forced to suspend their work following theISIS advance in 2014, the totals above include onlypre-2014 incidents from those governorates.

Figures from the Central Committee also providea breakdown by governorate of the claims pro-cessed each year over the period 2011–16. Whilethe distribution of claims within and between gov-ernorates varied significantly each year, Baghdadranked consistently as the governorate with thehighest total number of claims over this period.Other governorates with relatively high numbersof claims processed over the period includedDiyala, Anbar, Ninewa, Babel, Basra, Salahuddinand Kirkuk. The figures for these governorates arepresented in Figure 1. Figures for the remaininggovernorates of Dhi Qar, Najaf, Maysan, Karbala,Wasit, Qadisiyya and Muthanna are not repre-sented in Figure 1 due to the relatively low num-bers of claims from these governorates.

Gaps and challengesDespite the achievements detailed above, the pro-cess of implementing Law 20 has not been with-out its shortcomings and challenges. To somedegree, these are emblematic of the difficulties ofimplementing a reparations programme in themidst of ongoing conflict and in a context wherestate institutions are weak. Others are connectedto the particular processes and structures createdby the law.

First of all, extensive delays have marred the pro-cess of delivering reparations to victims underthe Law 20 framework. According to a represen-tative of an Iraqi civil society organization, al-though Law 20 was approved by the Iraqiparliament in late 2009, it was not until mid-2011

that the Ministry of Finance issued the directivesrequired to put the law into practice.74 Even afterimplementation begun, it reportedly took an av-erage of two years to process a claim.75 Many gov-ernorates quickly accumulated a backlog ofclaims due to the high number of victims claim-ing compensation.76

According to a legal adviser to the Human RightsCommittee in the Iraqi parliament, the law’s bu-reaucratic procedures are a major source of de-lays in delivering reparations to victims.77 Unlikemany of the other country examples presented inearlier sections of this report, Iraq did not opt toestablish a strong central institution responsiblefor delivering reparations to victims. Instead, theCentral Committee and subcommittees estab-lished under Law 20 are formed of representa-tives of various government ministries, headedby a judge. This means that there is no full-time,specialized institution dealing with reparations,even if some secretariat facilities have been es-tablished. In fact, in the original version of thelaw, the Central Committee was only required tomeet once a week, and the subcommittees twicea week. This was undoubtedly a major factorcausing a backlog in claims to build up.

It is also clear from analysis of the law and re-lated documents that the process for claimingreparations involves quite onerous evidentiaryrequirements, obliging both victims and the sub-committees to obtain numerous official docu-ments from multiple government offices. Forvictims these could include, depending on thecase under consideration, authenticated investi-gation reports, death certificates, medical re-ports, property deeds, estate division documents,custody documents, power of attorney forms,


Table 1: Claims processed by the Central Committee and subcommittees, 2011–16

Total amountdisbursed tovictims (IQD)

Number of claims processed bythe subcommittees (martyrs, the injured the lost)

168,235,846,000 56,387,345,526 50,908,448,570 74,422,997,864 70,110,547,589

420,065,185,549

45,741 claims35,631 claims18,594 claims17,136 claims1,792 claims

118,894 claims

Number of claims processed bythe Central Committee forCompensating Victims (property)

12,227 claims13,653 claims13,732 claims10,403 claims15,031 claims

65,046 claims

Yearprocessed

2011–122013201420152016

Total

Source: Central Committee for Compensating Victims of Military Operations, Military Mistakes and Terrorist Actions.

20

identification documents for the victim and allsurviving heirs, and others. A senior official con-nected to the Central Committee in Baghdad ex-plained that they had dealt with high numbersof fraudulent claims over the years, which mayexplain the reliance on heavy evidentiary re-quirements:

‘During the time of the transitional authoritywhen we had the Al-A’immah bridge disaster inBaghdad, hundreds of people died. But over3,300 submitted claims, and they all had originaldeath certificates and authenticated witnessstatements! We need to check claims and pre-vent fraud.’ 78

Nevertheless, the use of a high standard of proofis at odds with best practices internationally,where a more relaxed standard has beenfavoured to avoid placing undue burden on vic-tims. In the Iraqi case, the need to obtain docu-ments from different government offices is verycostly for victims, especially in terms of time andtransportation. This process can be seen as addinginsult to injury for victims who have already suf-fered immense harm as a result of violations.

The poor security situation in Iraq has also nega-tively impacted on the implementation of the law.In governorates with active conflict, victims often

faced difficulties in obtaining the documentsneeded to submit reparations claims from govern-ment offices.79 The reparations process was slowto accommodate the reality of displacement, ini-tially requiring victims to submit their claims inthe governorate that the incident occurred evenif they were living somewhere else.80 The situationdeteriorated further following the advance of ISISin 2014. The subcommittees in Kirkuk, Ninewa,Anbar, and Salahuddin governorates were forcedto suspend their work completely – Kirkuk for aperiod of three months, and the others for morethan two years. In June 2014, the Central Commit-tee reported that the secretary of the Diyala sub-committee was killed in a terrorist attack on hisway to the office. According to an Iraqi Memberof Parliament, prolonged displacement caused bythe conflict hampered victims’ ability to obtainreparations. Compensation money is distributedat the governorate level, but many IDPs were un-willing to return to their governorates due to thevolatile security situation.81

There is also no central funding system to opera-tionalize payments and other forms of reparationunder Law 20. Instead, the Central Committee andthe subcommittees forward their decisions to theMinistry of Finance, the Pension Authority, andthe local authorities, which are responsible for is-suing the compensation grants, the pension pay-


Figure 1: Top eight Iraqi governorates by number of claims processed, 2011–16

Source: Central Committee for Compensating Victims of Military Operations, Military Mistakes and Terrorist Actions.

35,000

30,000

25,000

20,000

15,000

10,000

5,0000

Baghdad Salahuddin KirkukBasraBabelNinewaAnbarDiyala

32,681

23,042

15,649

11,429 8,954

7,067 6,5618,940 8,884

4,413 4,1661,553

8,870

1,9314,6935,028

Claims processed (property damage) Claims processed (martyrs, injured, missing)

21

ments, and the plots of land respectively. Thismeans that even when victims receive a positivedecision on their cases, a variety of factors couldprevent the reparations from being delivered tothem by the other government offices. Threemembers of parliament interviewed in Baghdadstated separately that many victims had receivedconfirmation of a positive outcome on their cases,but no actual money.82 According to the CentralCommittee, the delays encountered in the releaseof payments are due to the standard checks andprocedures followed by the budget and cash ac-counting divisions in the Ministry of Finance. Theprocess of granting land to victims has alsoproved problematic, especially in Baghdad gover-norate where there is a shortage of suitable resi-dential land. As a result, many eligible victimshave received neither a plot of land nor the equiv-alent monetary value specified under the law.83

Following the 2015 amendment to Law 20, somechanges have been made to the institutional struc-ture through which claims are received, partly inan effort to speed up the process of granting repa-rations. The Central Committee and subcommit-tees now work full-time, and their membershipstructure has been somewhat simplified. The Cen-tral Committee has also formed teams of adminis-trative staff to speed up the processing ofapplications and to perform preliminary checkson case files before presenting them to the com-mittee members for final decision.84 Nevertheless,the Central Committee and subcommittees remainquasi-judicial bodies in essence rather than ad-ministrative institutions, which places importantlimitations on victims in accessing reparations.

Another important, and controversial, institu-tional change introduced by the 2015 law is thatresponsibility for delivering reparations to mar-tyrs and their families has been transferred to the

Martyrs’ Foundation. This change has stirred po-litical tensions. According to a representative of anIraqi civil society organization, the Martyrs’ Foun-dation is closely associated with the Dawa Party,which places high priority on compensating vic-tims of the regime of Saddam Hussein.85 As a re-sult, many within the establishment are resistantto the idea of incorporating victims of military op-erations and terrorism under their remit andgranting them the same privileges as victims of theSaddam Hussein regime. The Ministry of Financeand the Public Pensions Authority also filed an ob-jection to the amended law before the FederalSupreme Court, claiming the increase in compen-sation amounts for martyrs constituted an unten-able financial burden on the state. However,according to a representative of another Iraqi civilsociety organization, the reasons behind this op-position are political rather than financial, asthere was also strong opposition to the law in2008, when oil prices were at a record high.86

As a result of the 2015 amendment, the process ofgranting reparations to victims has met with fur-ther delays. The process of reconstituting the Cen-tral Committee and the subcommittees accordingto the new membership structure specified in thelaw took several months.87 When interviewed inMarch 2017, the director of the division in theMartyrs’ Foundation responsible for compensat-ing victims covered by Law 20 stated that his of-fice had not been allocated a budget from thecentral government and they did not even havethe necessary furnishings to conduct their work.88

Moreover, at the time of writing, the Ministry ofFinance had not issued the directives required tobegin the process of compensation for cases ofmartyrdom, injury, loss, and kidnapping.89 Conse-quently, cases of property damage are the onlyarea of compensation in which the 2015 amend-ment has been implemented.90


‘The first priority is to liberate the land from ISIS, and thenthe next priority is to protect people. Compensation comesafter liberation. Currently, donor money is going to recon-struction, rather than compensation.’ 92

Conditions in Iraq now are very different from when Law20 first went into practice. The conflict with ISIS has led tothe displacement of over 3 million people, large-scale de-struction, and widespread violations of human rights andinternational humanitarian law perpetrated by an array ofactors. With the defeat of ISIS appearing imminent, ensur-ing accountability for these violations and justice for vic-tims is an immediate priority as Iraq seeks to rebuild andrecover from the conflict. Reparations should be a centralelement of these processes. This section explores some keyconsiderations to be taken into account when planning forreparations for victims of the conflict with ISIS, identifyingways in which the framework established by Law 20 couldbe expanded and improved.

Scope of violations andforms of reparationsIn its current form, it unlikely that the Law 20 frameworkwould be able to effectively cover the range of violationscommitted during the most recent conflict. While the statedfocus of the law is ‘victims of military operations, militarymistakes and terrorist actions’, it does not further specifythe types of violations included under those categories. Inpractice, the only victims covered under the law are thosewho have been killed, kidnapped or gone missing; the phys-ically injured; those who have been forced to leave studiesor employment; and those who have lost property.

While a prioritization of certain types of violations has beenjustified in many cases where providing reparations to allvictims would be unfeasible, the focus of Law 20 clearly ex-cludes major types of violations that have been central fea-tures of the conflict. For example, victims of sexual violence,children recruited into forced military service, and thosesuffering from psychological trauma have no recourse toremedies under Law 20. Also missing from the law is a col-

“The system cannot deal with the Da’esh [ISIS] crisis. It was created for

something else: for bombings here and there, or a military strike. Law 20 is good

but the implementation mechanism does not have the capacity to deal with the

challenges that we now face: thousands killed, thousands kidnapped, the scale

of property destruction – nearly every bridge in Mosul has been destroyed.’’

– Former Chair, Central Compensation Committee, Baghdad

Towards a comprehensivereparations scheme forvictims of the conflictwith ISIS5

lective approach to reparations for those who have beenvictimized on the basis of their group belonging, as is thecase for many of Iraq’s ethnic and religious minorities.

Addressing this range of violations appropriately would re-quire a mix of different forms of reparations. Currently,Law 20 is heavily focused on compensation. While com-pensation has many merits, it is not always the most ap-propriate form of reparations for some types of violations.For example, victims suffering from physical and mentalhealth issues as a result of serious violations should haveaccess to rehabilitation, which in turn requires access toadequate health services for a prolonged period of time.In such a context, paying compensation for such serviceswould not necessarily allow victims to deal in the best waypossible with the harm suffered.93 Similarly, redressingwrongs committed against entire groups might entail othermeasures in addition to compensation, such as satisfaction(including truth-recovery and memorials) and guaranteesof non-repetition.

Redressing violations committed against vulnerablegroups poses particular challenges that are unlikely to beresolved through compensation alone. In the case of childsoldiers, comparative experience has shown that compen-sation can actually produce negative effects, and may notbe effectively spent to the benefit of the child.94 A combi-nation of measures, such as access to rehabilitation andeducation, can be more effective in redressing the harminflicted on a child’s development by under-age militaryrecruitment. Similarly, reparations for victims of sexual vi-olence should be designed in a way that appropriately ad-dresses the multiple and long-term dimensions of theharm suffered without causing re-victimization. This couldinclude elements such as access to psychosocial care, vo-cational training, and education for the victim’s childrenin addition to compensation.95

Responsibility ofinternational actors andarmed groupsIn order to be effective, any post-conflict reparationsscheme in Iraq needs to cover violations by all parties to theconflict. Otherwise, the process could be seen as one-sidedand could risk inflaming tensions and perpetuating divi-sions. This issue is particularly challenging given the multi-ple and diverse armed actors that have participated inviolations during the most recent phase of conflict. Theseinclude ISIS and other armed opposition groups, the IraqiSecurity Forces, the Peshmerga, militias operating under thebanner of the PMF, members of the US-led coalition andother foreign states.

This report has centred on the measures taken by the Iraqigovernment to provide reparations, but the Law 20 frame-work is clearly insufficient on its own to cover violationscommitted by all the actors above. While the categories of‘military operations’ and ‘military mistakes’ would appearto refer primarily to actions taken by the Iraqi SecurityForces, and ‘terrorist actions’ presumably covers some ac-tions by non-state armed groups, further measures areneeded to ensure that violations committed by all parties tothe conflict are included.

ISIS and other non-state armed groupsIn Iraq, as in many other modern conflicts, non-state armedgroups have been responsible for a large share of the viola-tions committed against civilians. This includes most obvi-ously ISIS elements, but also an array of other militiasoperating under the umbrella of the Popular MobilizationForces96 or outside of it. Armed opposition groups party toconflicts are bound by international humanitarian law andit is also becoming increasingly recognized that they may

24

have certain human rights obligations, alongsidestates.97 However, it is less clear whether theyshould be responsible for providing reparationsto victims of their violations, or whether this roleshould be left for states.

In practice, it is not always feasible or desirable tocompel armed groups to provide reparations.Armed groups may be militarily defeated andcease to have an organized presence in the after-math of a conflict. Even if they continue to exist,they may not have the resources or political willto pay reparations. Governments may also refuseto deal directly with armed groups by includingthem in the reparations process, as doing so couldimpart those groups with a degree of legitimacy.98

The factors above mean that it is unrealistic to ex-pect that ISIS will play a direct role in grantingreparations to its victims, as this is a role neitherthe group nor the Iraqi government would be

likely to accept. However, one avenue to exploreis whether assets confiscated from the group orits members could be used to fund a reparationseffort implemented by the Iraqi government orthe international community. On the other hand,militias that have been active on the anti-ISIS sidemay continue to exist after the end of the conflictand some enjoy a higher degree of legitimacy inthe eyes of the Iraqi government. These groupsmight be engaged in the reparations process as ameans of holding them accountable for violationscommitted. Appropriate reparations in this caseshould not be limited to compensation alone butcould also include symbolic measures such aspublic apologies.

Members of the US-led coalition‘Those who have created the destruction shouldpay the compensation. And the greatest respon-sibility [in Ramadi] lies with the Americans.’ 99


Enforced disappearance is recog-nized as a serious violation thatcauses long-term pain and sufferingnot only for the direct victims, if theysurvive the ordeal, but also their rel-atives and friends, who are left in astate of uncertainty about the fate oftheir loved ones. As such, interna-tional law requires enforced disap-pearance to be recognized as adistinct offence with characteristicsdistinguishing it from other depriva-tions of liberty. The InternationalConvention on the Protection of allPersons from Enforced Disappear-ances (ICPPED), to which Iraq isparty, defines enforced disappear-ance as:

‘the arrest, detention, abduction or anyother form of deprivation of liberty by

Reparations forvictims of enforceddisappearances

agents of the State or by persons orgroups of persons acting with the au-thorization, support or acquiescence ofthe State, followed by a refusal to ac-knowledge the deprivation of liberty orby concealment of the fate or where-abouts of the disappeared person,which place such a person outside theprotection of the law.’

While enforced disappearances werepractised widely by the Saddam Hus-sein regime until its overthrow byUS-led forces, the period since 2003has seen the increased use of en-forced disappearance by non-stateactors, including by ISIS. Most re-cently, the PMF have been accusedof forcibly disappearing hundreds oreven thousands of Sunni Arab menand boys captured while fleeing ISIS-held territory. The ICPPED also re-quires state parties to take measuresto address enforced disappearancescommitted by non-state actors, whilerecognizing these acts as distinct

from enforced disappearances com-mitted by state actors.

While Law No. 20 provides repara-tions to the families of victims whohave been kidnapped or gone miss-ing, it does not specifically covercases of enforced disappearance. Infact, there are no Iraqi laws thatcriminalize the act of enforced disap-pearance, as required by the ICPPED.To properly address enforced disap-pearance, Iraq should not only enactlegislation criminalizing the practiceand specifying penalties for perpe-trators, but also recognize the rightof victims and their families to repa-ration, irrespective of whether or notthe victim has been declared dead.Moreover, the government shouldtake measures to uphold relatives’right to know the truth regarding thecircumstances of the enforced disap-pearance, the progress and resultsof the investigation, and the fate ofthe disappeared person.

25

‘I know a man from al-Whyalieh [in Tal Afar dis-trict] who lost all 26 members of his family in anairstrike. They told him it was a mistake. In theStrategic Framework Agreement [between Iraqand the US] is there a provision giving impunityto the military? We don’t know.’ 100

The US-led Combined Joint Task Force (alsoknown as Operation Inherent Resolve), whichbegan conducting anti-ISIS airstrikes in Iraq inAugust 2014, is clearly responsible for significantcivilian casualties and damage to civilian homesand infrastructure. While incidental civilian casu-alties are not necessarily unlawful under interna-tional humanitarian law, the scale of civiliandeaths raises the question of whether members ofthe coalition have taken constant care to spare thecivilian population and taken all feasible precau-tions to avoid, or in any event minimize, civiliandeath or injury or damage to civilian objects. Incertain instances, coalition attacks have also beenalleged to breach the proportionality principle inthe conduct of military operations in Iraq.

Up to now, the coalition and its members have ap-peared reluctant to conduct thorough investiga-tions into incidences of civilian casualties, andthere has been almost no effort to provide repa-rations to victims of airstrikes. As of July 2017, thecoalition had publicly admitted to 603 ‘accidental’civilian deaths in the course of its airstrikes inIraq and Syria. However, the coalition did not con-duct interviews with witnesses on the ground aspart of its information-gathering, and a leadingmonitoring group contended as of August 2017that the true death toll was 5,117 – more thaneight times the coalition figure.101 Despite thesehigh figures, the coalition had reportedly only re-ceived two compensation requests and issued twocondolence payments over the course of the oper-ation as at June 2017.102

The US-led coalition, as well as its individualmembers, must take greater responsibility to-wards the victims of its military operations. Thisshould include conducting effective, prompt,thorough and impartial investigations into allcivilian casualties, and paying reparations to vic-tims or their families in cases where interna-tional law has been violated. The US should alsoconsider granting condolence payments in caseswhere international law has not been violated

but harm has been incurred, in line with previ-ous practice.103

Processes andevidenceAs discussed in the previous section, the standardof evidence used up until now in the Law 20 repa-rations process is quite high. Although the need toverify claims and prevent fraud is understand-able, the evidentiary requirements currently usedplace barriers on victims in accessing reparation.Moreover, they cause long delays in the process ofreceiving and assessing claims. This problem willlikely be compounded in the future given the largenumber of victims who have suffered violationsduring the most recent conflict. Consequently, ef-forts should be made to simplify the documenta-tion requirements and speed up the processing ofclaims for victims of the conflict with ISIS.

There are already examples in Iraq where docu-mentation requirements have been simplified toease the processing of reparations claims in spe-cial cases. Following the July 2016 Karrada bomb-ing, which claimed the lives of hundreds ofcivilians, an ad hoc reparations committee set upby the Prime Minister opted to accept victims’claims on the basis of death certificates only, re-portedly allowing them to finish their work within40 days.104 Property claims are another area thatwarrants the adoption of a more flexible ap-proach, since many victims are unlikely to possesscomplete documentation that confirms their own-ership of damaged property or housing, especiallyif they have been displaced. The Central Commit-tee has already initiated some modifications to theprocedures for victims from rural areas, who arenow permitted to submit a pledge by a villageleader or other relevant authority to confirm theirownership of property if they do not possess offi-cial documents.105 A representative of a civil soci-ety organization interviewed for this report alsostated that her organization was supporting vic-tims in Ninewa governorate to use geographic in-formation system (GIS) data to corroboratedamage to their properties.106

In addition to carefully reconsidering the docu-mentation requirements needed to claim repara-tions, Iraq should also take steps to ensure that


26

citizens are made aware of the reparations pro-cess and their rights thereunder. In the course ofinterviews conducted for this report, it emergedthat even politicians lacked understanding of thereparations process created by Law 20, and someappeared completely unaware of the system. Ac-cording to a senior UN representative interviewedin Baghdad, there may have been insufficient in-vestment in raising awareness about the law.107

Awareness-raising will not only ensure that thegreatest possible number of victims are able toclaim reparations, but will also enhance the effi-ciency of the process by reducing the incidence ofimproperly submitted claims.

Finally, Iraq should also place priority on buildinga central and unified registry of victims to furtherimprove its method of work. A registry of victimsis needed to facilitate reparation but also to mea-sure the reach of the programme and to be able tocorrect work on reparations as the programme isimplemented. When interviewed in March 2017,the director of the division in the Martyrs’ Foun-dation responsible for compensating victimsunder Law 20 stated that his team was working onbuilding a database of martyrs killed since 2003,but that they needed more support to ensure theinclusion of all those killed after the ISIS advanceof 2014.108


Iraq already has significant expertise in the implementa-tion of reparations programmes, most notably the systemestablished by Law 20 on Compensation for Victims of Mil-itary Operations, Military Mistakes and Terrorist Actions.Iraq should carefully reflect on the merits and flaws of thissystem and use the lessons learned in the design of a morecomprehensive scheme for victims of the conflict with ISIS.Such an undertaking will require significant expansion inthe scope of the law and a reconsideration of processes inorder to effectively reach all victims, as well as strong im-plementing institutions with adequate financial resources.

Lastly, it is important to note that, in order to deliver themaximum benefits to victims, reparations should not beimplemented in isolation from other transitional justicemeasures. Reparations would be less effective if providedto victims without recognition of responsibility, full inves-tigation of the violations suffered and disclosure of thetruth about what happened. Properly conceived, repara-tions can also enhance other policy interventions, such as

humanitarian assistance and development projects, whichare particularly important in contexts of poverty and de-privation to ensure that victims can take full advantage ofreparations.109 Therefore, creating dialogue between rele-vant stakeholders responsible for such interventions is cru-cial in Iraq to ensure that points of potential cooperationand synergy are soon identified. With careful planning, ajointly implemented, comprehensive transitional justiceand reconstruction process would enable the recognitionof victims, build trust in state institutions, and foster rec-onciliation and democratization.

RecommendationsTo the Government of Iraq:

• Strengthen the capacity of institutions involved in thereparations process by ensuring that staff have accessto specialized training on the delivery of reparations

Conclusions andrecommendations

As Iraq seeks to close the chapter on nearly four years of destructive conflict

with ISIS, it is vital that measures be put in place to help individuals and, by

extension, Iraqi society as a whole, to recover from the atrocities that have

taken place. While this transition will require a range of concurrent

interventions, reparations should be a central part of the equation. Not only do

reparations have intrinsic moral value, but they are enshrined in international

legal obligations to which Iraq is party.

6

28

• Acknowledge violations committed by allparties to the conflict and ensure that all vic-tims are eligible for reparations

• Expand the scope of harm eligible for repara-tion to include mental and sexual violence inaddition to physical violence

• Adopt a multi-pronged approach to repara-tions that includes measures such as restitu-tion, rehabilitation, satisfaction andguarantees of non-repetition alongside com-pensation

• Consider designing special measures to ad-dress instances of collective harm inflictedon communities, especially ethnic and reli-gious minorities

• Adopt simplified and flexible evidentiary re-quirements for reparations processes so as toavoid putting an excessive burden on victims

• Consult with affected communities in the de-sign and improvement of any reparationsprogrammes

• Consider the establishment of a central reg-istry of victims to facilitate access to repara-tions and enable the reparations programmeto be measured and further improved

• Abide by a ‘do-no-harm’ approach in allreparations programmes

• Anchor reparations programmes within atransitional justice framework, which in-cludes elements such as judicial accountabil-ity and truth-seeking alongside reparation

• Cooperate with other governmental and in-ternational agencies to identify points of con-gruence between reparations programmes,humanitarian assistance, and developmentprogrammes.

To the international community:

• Conduct effective, prompt, thorough and im-partial investigations into all instances ofcivilian casualties caused by internationalmilitary intervention, and provide repara-tions to victims

• Provide technical support to the Iraqi gov-ernment in designing a comprehensive andappropriate reparations scheme for victimsof the conflict with ISIS

• Consider developing jointly funded and im-plemented reparations programmes in coop-eration with the Iraqi government

• Work with civil society organizations to raiseawareness of existing reparations schemesand support victims in filing claims.


29Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

1 De Greiff, P., ‘Justice and reparation’, in P. deGreiff (ed.), The Handbook of Reparations, NewYork, Oxford University Press, 2006, p. 454.

2 In the first piece written by de Greiff trying tojustify reparations from a justice perspective andlinking it to transitional justice he wrote aboutthree goals: recognition, civic trust and socialsolidarity. However, in his later writing he hasrevised the argument and he identifies fourgoals: two ‘mediate’ goals (recognition and civictrust) and two ‘final’ goals (reconciliation anddemocratization). Contrast ibid., p. 455 with deGreiff, P., ‘Theorizing transitional justice’, in M.Williams, R. Nagy and J. Elster (eds), TransitionalJustice, New York, Nomos/New York UniversityPress, 2012, pp. 31–77.

3 O’Neill, O., Towards Justice and Virtue, Cambridge,Cambridge University Press, 1988, p. 42 and deGreiff, ‘Justice and reparation’, op. cit., p. 460. Itshould be noted, however, that underinternational law, the duty is to providereparations not just to citizens but to all victimsof violations.

4 Ibid., p. 460.5 Ibid., p. 461. 6 Ibid., p. 463.7 De Greiff, ‘Theorizing transitional justice’, op. cit.,

p. 51.8 Ibid.9 Ibid., pp. 52–8.10 For the general principle, see International Court

of Justice, The Factory at Chorzow (Claim forIndemnity), 26 July 1927, 21 and InternationalLaw Commission, Draft Articles onResponsibility of States for InternationallyWrongful Acts, with Commentaries, 2001, Article1.

11 Human Rights Committee, General Comment 31,‘The Nature of the General Legal ObligationImposed on States Parties to the Covenant’,CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 10.

12 Ibid. The extraterritoriality of human rightsobligations is relevant when considering theinternational responsibility of the United Statesand its allies during the occupation of Iraq thatbegan in 2003. Unlike many other states(including the UK), the US does not accept theextraterritorial application of such obligations. Itshould also be noted that while the UN SecurityCouncil was able to compel Iraq to providereparations following its occupation of Kuwait in1990–1, it is very unlikely to agree such actionagainst permanent members with veto powers.

13 International Covenant on Civil and PoliticalRights, Article 2; International Covenant onEconomic, Social and Cultural Rights, Article 2;General Comment. See also, Velasquez Rodriguezv. Honduras, Merits, 29 July 1988, para. 165–8;Human Rights Committee, General Comment 31,op. cit., CCPR/C/21/Rev.1/Add.13, 26 May 2004,para. 16 in particular.

14 Theo van Boven, ‘Victims’ rights to a remedy andreparation: the new United Nations principlesand guidelines’, in C. Ferstman, M. Goetz and A.Stephen (eds), Reparations for Victims of Genocide,War Crimes and Crimes against Humanity: Systemsin Place and Systems in the Making, TheNetherlands, Brill, 2009.

15 UN General Assembly, Basic Principles on theRight to a Remedy and Reparation for Victims ofGross Violations of International Human RightsLaw and Serious Violations of InternationalHumanitarian Law, 2005, UN doc. A/Res/60/147,Principle VII.b.

16 Ibid., Principle IX.18.17 The interplay between human rights law and

international humanitarian law in times ofconflict or occupation raises important questionsrelevant to reparations but is outside the scopeof this report; see e.g. Lattimer, M. and Sands, P.,The Grey Zone: Civilian Protection between HumanRights and the Laws of War, Oxford, Bloomsbury,2018.

18 Acuerdo Final para la Terminación del Conflicto yla Construcción de una Paz Estable y Duradera,Bogotá, 24 November 2017, , p. 124, 179–92,available at: http://www.altocomisionadoparalapaz.gov.co/procesos-y-conversaciones/Documentos%20compartidos/24-11-2016NuevoAcuerdoFinal.pdf

19 Sandoval, C., ‘The concepts of “injured party”and “victim” of gross human rights violations inthe jurisprudence of the Inter-American Court ofHuman Rights: a commentary on theirimplications for reparations’, in Ferstman et al.,op. cit., Reparations for Victims of Genocide, pp.243–82. Also Rubio, R. and Sandoval, C.‘Engendering the reparations jurisprudence ofthe Inter-American Court of Human Rights: thepromise of the cotton field judgment’, HumanRights Quarterly, vol. 33, 2011, pp. 1062–91.

20 UN General Assembly, Basic Principles, op. cit.,Principle V.8.

21 Victims and Land Restitution Law, Article 3.22 Ibid.23 Ley que Crea el Plan Integral de Reparaciones,

Ley 28592/2005, Article 4.

Endnotes

30

38 Lira, E.,’The reparations policy for human rightsviolations in Chile’, de Greiff (ed.), The Handbookof Reparations, op. cit., pp. 55–100.

39 Victims and Land Restitution Law, Articles 47–68.40 Sierra Leone Truth and Reconciliation

Commission, Report, vol. 2, ch. 4, p. 250.41 UN General Assembly, Basic Principles, op. cit.,

Principle IX.16, and Set of principles for theprotection and promotion of human rightsthrough action to combat impunity, 1997, UNdoc. E/CN.4/Sub.2/1997/20/Rev.1, Principle 32.

42 Law 19.123/1992, available at: http://www.leychile.cl/Navegar?idNorma=30490

43 Ibid., Article 1.44 Ibid.45 Unidad de Restitución de Tierras, Informe 2016.46 UN General Assembly, Basic Principles, op. cit.,

Principle VIII.47 Victims and Land Restitution Law, Article 158.48 Ibid., Article 5.49 Ibid., para. 38.50 Ibid., para. 78.51 Comisión Valech, Informe de la Comisión Nacional

sobre Prisión Politica y Tortura, 2005, p. 39–47.52 Observatorio de Derechos Humanos, Medidas de

Reparación en Chile desde 1990, May 2012,available at: http://www.icso.cl/wp-content/uploads/2011/03/Descripcion-de-medidas-reparacion-MAYO2012.pdf, p. 25.

53 Rivas, J., ‘Official victims’ registries: a tool for therecognition of human rights violations’, Journal ofHuman Rights Practice, vol. 8, no. 1, 2016, pp. 116–27.

54 Information obtained from the Unidad deVictimas, http://mi.unidadvictimas.gov.co/RUV

55 Recordar y Reparar: Políticas Públicas que HacenJusticia: Cuatro Temas en la Agenda de Reparaciónen Colombia, Bogotá, International Center forTransitional Justice (ICTJ), 2011, pp. 13–50 at pp. 24–6.

56 South African Truth and Reconciliation CommissionReport, vol. 5, ch. 5, para. 56.

57 Ibid.58 Ibid., p. 189.59 National Commission for Social Action, Sierra

Leone Reparations Programme Newsletter,October 2016.

60 Report and Proposals for the Implementation ofReparations in Sierra Leone, International Centerfor Transitional Justice (ICTJ), December 2009,available at: https://www.ictj.org/sites/default/files/ICTJ-SierraLeone-Reparations-Report-2009-English.pdf., p. 7.

61 Ibid., p. 10.


24 Inter-American Court of Human Rights, BamacaVelasquez v. Guatemala, Reparations and Costs,22 February 2002.

25 Inter-American Court of Human Rights, JuanHumberto Sanchez v. Honduras, PreliminaryObjections, Merits, Reparations and Costs, 7 June2003.

26 ICC, Trial Chamber I, Situation in the DemocraticRepublic of the Congo in the Case of the Prosecutorv. Thomas Lubanga Dyilo, “Decision establishingthe principles and procedures to be applied toreparations,” ICC-01/04-01/06, 7 August 2012 andICC, Appeals Chamber, “Judgment on theappeals against the “Decision establishing theprinciples and procedures to be applied toreparations” of 7 August 2012,” ICC-01/04-01/06A A 2 A 3, 3 March 2015,

27 Peace Agreement between the Government ofSierra Leone and the United RevolutionaryUnited Front of Sierra Leone, Article XXX, 1999,available at: http://www.sierra-leone.org/lomeaccord.html

28 UN General Assembly, Basic Principles, op. cit.,Principle VII.b.

29 Inter-American Court of Human Rights, VelasquezRodriguez v. Honduras, Judgment, 29 July 1988,para. 64.

30 Ibid., para. 66.31 UN General Assembly, Basic Principles, op. cit.,

Principle IX.15.32 Aubry, S. and Henao-Trip, M., ‘Collective

reparations and the International CriminalCourt’, Briefing Paper 2, Transitional JusticeNetwork, University of Essex, August 2011.

33 UN General Assembly, Basic Principles, op. cit.,Principle V.8 or VIII.13, or The Rabat Report: TheConcept and Challenges of Collective Reparations,International Center for Transitional Justice (ICTJ),2011.

34 Office of the High Commissioner for HumanRights (OHCHR), Rule of Law Tools for Post-Conflict States: Reparations Programmes,available at: www.ohchr.org/Documents/Publications/ReparationsProgrammes.pdf

35 Guidance Note of Secretary-General, Reparationsfor Conflict-Related Sexual Violence, 2014, availableat: http://www.ohchr.org/Documents/Press/GuidanceNoteReparationsJune-2014.pdf

36 Sandoval, C., Rehabilitation as a Form ofReparation under International Law, London,REDRESS, 2009.

37 Ley No. 19.123, 8 February 1992, and Ley 19.980,29 October 2004. This later law amended Law19.123, increasing the pension by 50 per centmonthly and adding more health benefits.

31

62 Van Houtte, H., Das, H. and Delmartino, B., ‘TheUnited Nations Compensation Commission’, inde Greiff (ed.) The Handbook of Reparations, op.cit., pp. 322–78, at p. 335–6.

63 UN Security Council, Priority of Payment andPayment Mechanisms: Guiding Principles,S/AC.26/Dec.17, 24 March 1994.

64 United Nations Compensation Commission,Summary of Awards, www.uncc.ch/summary-awards

65 Ley de Victimas y Restitución de Tierras, Article177.

66 Fondo para la Reparacion de las Victimas,‘Unidad para la Atención y la Reparación Integrala las Victimas’, Informe Ejecutivo, 30 September2016.

67 UN Security Council Resolutions 1483(2003) and1956(2010).

68 Lomé Peace Agreement, Article XXVI.69 Sierra Leone Truth and Reconciliation

Commission, Report, vol. 2, ch. 4, para. 224–32. 70 ICTJ, 2009, op. cit., p. 14. 71 Iraq Body Count, ‘Documented civilian deaths

from violence’, https://www.iraqbodycount.org/database

72 ‘Loss’ here refers to cases in which the victim ispresumed to be dead, but the corpse has notbeen located and therefore no death certificatehas been issued.

73 The Martyrs’ Foundation is an independentgovernment body established in 2006 that wasinitially charged with identifying martyrs of theSaddam Hussein regime and providingcompensation and support to their families.

74 Interview with Hussein Ali abd al-Sadah, Al-Madhmoun television programme, Al-Na’eemSatellite Channel, 19 August 2016.

75 Human Rights Watch, ‘Iraq: ISIS bombings arecrimes against humanity, compensate civilianvictims’, 15 January 2017.

76 Interview with Hazem Al-Haidary, Al-Khat As-Sakhin television programme, Afaq SatelliteChannel, 19 September 2012.

77 Interview with legal adviser to the Human RightsCommittee, Baghdad, 13 March 2017.

78 Interview with legal adviser to the Council ofMinisters, Baghdad, 12 March 2017. The incidentbeing referenced occurred in 2005 during a Shiareligious occasion when pilgrims crossing the Al-A’immah bridge on their way to al-Khadhimiyahmosque stampeded after hearing rumours thatthere was a suicide bomber in the crowd. Mediareports suggest that over 900 died, crushed ordrowned.

79 Human Rights Watch, ‘Iraq: ISIS bombings arecrimes against humanity, compensate civilianvictims’, op. cit.

80 Interview with Hazem Al-Haidary, Al-Khat Al-Sakhin television programme, op. cit.

81 Interview with an Iraqi Member of Parliamentand Vice-Chair of the Migration andDisplacement Committee, Baghdad, 8 March2017.

82 Interviews with Members of Parliament inBaghdad, 8–9 March 2017.

83 Interview with Tarek Al-Mandalawi, Al-Tali’a WaAn-nas television programme, Al-Tali’a SatelliteChannel, 8 April 2017.

84 ‘Al-amana al-’amma limajlis al-wazara’: al-lajnaal-markazia lita’widh al-mutadharireen tunaqashal-aliat al-jadida li-istiqbal mu’amalatalmutadharira mumtalakatihim wafq al-ta’dilal’awal lil-qanun’, 6 March 2017, http://www.cabinet.iq/ArticleShow.aspx?ID=7275

85 Interview with a representative of an Iraqi civilsociety organization, Suleymaniya, 19 July 2017.

86 Interview with Hussein Ali abd al-Sadah, Al-Madhmoun television programme, op. cit.

87 ‘Al-lajna al-markazia lita’widh almutadarireentushakkil firaq ‘aml min muazafiha litadqiq al-mutarakim min mu’amalat almutadariramumtalakatihim’, 16 August 2016, http://www.cabinet.iq/ArticleShow.aspx?ID=6891

88 Interview with the director of the Division forCompensating Victims of Military Operations,Military Mistakes and Terrorist Actions within theMartyrs’ Foundation, Baghdad, 12 March 2017


90 Interview with an administrative manager fromthe Central Committee responsible for propertycompensation, Baghdad, 12 March 2017.

91 Interview with the former chair of the CentralCommittee, Baghdad, 13 March 2017.

92 Interview with an Iraqi Member of Parliamentand Vice-Chair of the Migration andDisplacement Committee, Baghdad, 8 March2017.

93 Sandoval, C., Rehabilitation as a Form ofReparation under International Law, London,REDRESS, 2009.

94 Birchall, E., Francq, E. and Pijnenburg, A., ‘TheInternational Criminal Court and reparations forchild victims of armed conflict’, Briefing Paper 4,Transitional Justice Network, University of Essex,2011.

95 Rames, V., Healing the Spirit: Reparations forSurvivors of Sexual Violence Related to the ArmedConflict in Kosovo, Kosovo, Office of the HighCommissioner for Human Rights, 2013.


32

96 Note however that the current complex status ofthe PMF is governed by Executive Order 91,passed by the Iraqi Prime Minister in February2016, which recognizes the PMF as anindependent military formation that is part of theIraqi armed forces and attached to thecommander of the armed forces.

97 Dudai, R., ‘Closing the gap: symbolic reparationsand armed groups’, International Review of theRed Cross, vol. 93, no. 883, 2011, pp. 784–85.

98 Ibid.99 Interview with Iraqi Member of Parliament,

9 March 2017.100 Interview with Iraqi Member of Parliament,

8 March 2017.101 Figure cited is from Airwars, https://airwars.org102 Human Rights Watch, ‘Iraq: civilian casualties

mount in west Mosul’, 6 June 2017. 103 Amsterdam International Law Clinic and Center

for Civilians in Conflict, Monetary Payments forCivilian Harm in International and NationalPractice, 2013.

104 Interview with Hussein Ali abd al-Sadah, Al-Madhmoun television programme, op. cit.

105 ‘Al-lajna al-markazia lita’widh al-mutadharireen:shumul al-mumtelikat al-mushida kharijalmudun walqasabat alti la yamlik ashabhasanadat malakia bil-ta’widh’, 7 May 2017,http://www.cabinet.iq/ArticleShow.aspx?ID=7414


107 Interview with the Deputy Special Representativeof the UN Secretary-General, Baghdad, 12 March2017.

108 Interview with the director of the Division forCompensating Victims of Military Operations,Military Mistakes and Terrorist Actions within theMartyrs’ Foundation, Baghdad, March 2017.

109 Roth-Arriaza, N. and Orlovsky, K., ‘Acomplementary relationship: reparations anddevelopment’, in de Greiff, P. and Duthie, R.(eds), Transitional Justice and Development: MakingConnections, New York, SSRC Publications, 2009,pp. 170–213.


33Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice

34 Reparations for the Victims of Conflict in Iraq: Lessons learned from comparative practice



The responsibility of states to provide reparation to individuals whohave experienced violations in armed conflict is well establishedtoday under international law. If well designed, reparations can em-power, dignify and return a voice to victims, as well as provide themwith redress for the harm caused. From Colombia and Peru to SierraLeone, a variety of reparations schemes have been designedaround the world to address the effects of serious violations onthose directly affected and on the societies in which they live.

In Iraq, millions of victims have suffered over the decades as a con-sequence of gross human rights violations and serious violations ofhumanitarian law. Most recently, the conflict with ISIS has led to thedisplacement of over 3.1 million people, the killing of thousands, andtargeted campaigns against ethnic and religious communities. Theconflict has also resulted in widespread damage to infrastructureand personal property. Victims of these violations have a right to ad-equate, prompt and effective redress for the harm they suffered.

Iraq already has significant experience in providing reparations, in-cluding the work of the Iraq Property Claims Commission coveringland-related violations committed during the Saddam Husseinregime. More recently, Law No. 20 on Compensating Victims of Mil-itary Operations, Military Mistakes and Terrorist Actions, first passedin 2009, provides redress to victims who have suffered violationssince 2003. Between 2011 and 2016, more than IQD 420 billion (USD$355 million) was distributed to victims under this framework.

While considerable progress has been made under the Law No. 20framework in compensating victims of military operations, militarymistakes and terrorist actions, the most recent phase of conflictraises new challenges. These include the range and severity of vio-lations committed, the wide diversity of armed actors involved, andthe barriers that widespread destruction and displacement presentto victims’ ability to participate in reparations processes. This reportargues that the existing reparations framework in Iraq could bestrengthened by expanding the scope of violations covered, em-

ploying multiple forms of reparations, widening coverage to includeall parties to the conflict, and simplifying evidentiary requirementsimposed on victims.

As Iraq prepares to rebuild and recover from the conflict with ISIS,ensuring accountability for violations committed and justice for vic-tims is an immediate priority. This report seeks to inform the dis-cussion on reparations in Iraq through analysis of both internationaland domestic practice, with the goal of encouraging the develop-ment of a comprehensive framework that can provide adequateand effective reparations to victims.

This report recommends:• The Government of Iraq should acknowledge violations com-

mitted by all parties to the conflict, and ensure that victimsare eligible for reparations. Building upon existing experi-ence, it should adopt a multi-pronged approach to repara-tions that includes measures such as rehabilitation,satisfaction and guarantees of non-repetition alongside com-pensation

• Reparations programmes should be anchored within a transi-tional justice framework, which includes elements such as ju-dicial accountability and truth-seeking alongside reparation

• Members of the U.S.-led coalition and other foreign statesconducting military operations in Iraq should conduct effec-tive, prompt, thorough and impartial investigations into all in-stances of civilian casualties caused by their forces, make theresults transparent and provide reparations to victims

• The international community should consider developingjointly funded and implemented reparations programmes incooperation with the Iraqi government, and work with civilsociety organizations to raise awareness of existing repara-tions schemes and support victims in filing claims.

In brief

This report has been produced with the financial assistance of the Swiss Federal Department of Foreign Affairs and the European Union. The contents ofthis report are the sole responsibility of the publishers and can under no circumstances be regarded as reflecting the position of the Swiss FDFA or theEuropean Union.

Ceasefire Centre for Civilian Rights and Minority Rights Group International54 Commercial Street, London E1 6LT, United Kingdomwww.ceasefire.org | www.minorityrights.org/ceasefireISBN: 978-1-907919-89-3