Journal of International Criminal Justice Advance Access originally published online on July 4, 2005
Journal of International Criminal Justice 2005 3(3):579-589; doi:10.1093/jicj/mqi047
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Darfur—Compensation for the Victims
* Professor of Public Law, International Law and European Law, Humboldt University, Berlin; member of the Institut de droit International; former member of the UN Human Rights Committee; former member and Chairman of the UN International Law Commission; Co-ordinator, Comisión para el Esclarecimiento Histórico, Guatemala (1997–1999); chris.tomuschat{at}gmx.de.
Although many international instruments provide for or make reference to a duty of states to afford remedies for gross violations of human rights or international crimes, normally, such instruments refrain from granting individuals a right to compensation, but rather enjoin the competent domestic bodies (the legislature as well as the judiciary) to ensure such right. This is because international lawmakers are well aware of the difficulties that would be raised by individual reparation claims based on international law. Reparation and, in particular, compensation must always be synchronized with the societal context of the relevant occurrences. This is all the more necessary since, contrary to what the UN Commission of Inquiry on Darfur has stated, there is no customary international rule governing individual reparation claims. On the other hand, to date, no general international forum for the assertion of such claims has come into being. Consequently, even proceedings involving ‘international’ claims would have to be instituted before national tribunals, whereas in classical interstate relationships, domestic tribunals are never vested with jurisdiction — except in instances where the litigant parties so decide by mutual agreement.
1 UN doc. S/2005/60, 11 February 2005.
2 This was acknowledged by the Security Council in SC Res. 1593, 31 March 2005, on Darfur in response to the Report.
3 This right evolved in Latin-American countries (‘derecho a la verdad’) after they had emerged from military dictatorships.
4 The Report was submitted on 28 August 2003; see Informe Final de la Comisión de la Verdad y Reconciliación (Peru: 2003), Vol. IX, 139.
5 Guatemala Memoria del Silencio (Guatemala: 1999), Vol. V, 62: Medidas de reparación.
6 Areios Pagos, Prefecture of Voiotia v. Federal Republic of Germany, Case No 11/2000, Decision of 4 May 2000, summary in 95 American Journal of International Law (2001) 198–201.
7 BGH, Decision of 26 June 2003, III ZR 245/98, printed in 42 International Legal Materials (2003) 1030–1055, at 1037.
9 See M. Scheinin, ‘The Human Rights Committee's Pronouncements on the Right to an Effective Remedy: An Illustration of the Legal Nature of the Committee's Work under the Optional Protocol’, in N. Ando (ed.), Towards Implementing Universal Human Rights. Festschrift for the 25th Anniversary of the Human Rights Committee (Leiden/Boston: Nijhoff, 2004) 101–115, at 101 et seq.
10 In SC Res. 1593, 31 March 2005, preambular 
3, the Security Council rightly refers to Arts 75 and 79 of the Rome Statute.
11 See R. Pisillo-Mazzeschi, ‘International Obligations to Provide for Reparation Claims?’, in A. Randelzhofer and C. Tomuschat (eds), State Responsibility and the Individual (The Hague: Nijhoff, 1999) 149–172, at 149 et seq.
12 Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN doc. S/2004/616, 23 August 2004.
14 For the latest version, see UN doc. E/CN.4/2005/59, 21 December 2004, Annex (of 1 October 2004).
15 ‘Emphasizing that the Principles and Guidelines do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms.’
16 UN doc. E/CN.4/2000/62, 18 January 2000.
17 Ibid., 16 (emphasis added).
18 Supra note 14, 18 (emphasis added).
19 This regime has apparently served as a model for the proposals contained in the Report.
20 Adopted in GA Res. 59/38, 2 December 2004.
22 Judgment of 17 September 2002, not yet published. For a more detailed discussion, see C. Tomuschat, ‘L’immunité des Etats en cas de violations graves des droits de l’homme’, 109 Revue générale de droit international public (forthcoming in first issue of 2005).
23 This is not sufficiently emphasized in the Report ( 627).
24 Rightly, the Report emphasizes the necessity of strengthening the Sudanese judicial system: see 428, 431, 568, 622–625.
25 The most relevant precedent is SC Res. 794 (1992) on the situation in Somalia.
26 For an attempt to prove this proposition contrary to the views defended by G. Arangio-Ruiz, see C. Tomuschat, ‘Peace Enforcement and Law Enforcement: Two Separate Chapters of International Law?’, in Studi di diritto internazionale in onore di Gaetano Arangio-Ruiz (Napoli: Editoriale Scientifica, 2003) Vol. 3, 1745–1769, at 1745 et seq.
27 It is significant that the Sudan cannot be found among the 180 States Parties to the Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 United Nations Treaty Series, 13.