The Obligation to Provide Reparations by Armed Groups: A Norm under Customary International Law?
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The Obligation to Provide Reparations by Armed Groups: A Norm under Customary International Law? Laura Íñigo Álvarez1
© T.M.C. Asser Press 2020
Abstract Reparations represent a key element to redress the suffering caused to victims of armed conflict. Taking into account the predominantly non-international nature of contemporary armed conflicts and the fact that armed groups represent half of the participants, it seems legitimate to question whether reparations should also be provided by armed groups. From the victims’ perspective, the suffering caused to them remains the same irrespective of whether the perpetrator is a state or a non-state actor. In this context, there appears to be an emerging practice supporting the obligation of armed groups to provide reparation, as acknowledged in some UN reports. In addition, there have been examples of armed groups committing to provide some forms of reparation to victims through peace agreements, unilateral declarations and codes of conduct. This article analyses the recent international practice and examines any potential duty by non-state armed groups that could have been recognised in the provision of reparations. More precisely, the article evaluates whether the developments in the practice of armed groups could be considered as contributing to customary international law and suggests how this practice could be weighted together with the practice of states. It also identifies challenges and limiting factors in the provision of reparations by armed groups. Keywords Armed groups · Armed conflict · Customary international law · International humanitarian law · Peace agreements · Reparations · Victims
This article is based on the research carried out in the PhD dissertation ‘Towards a regime of responsibility of armed groups in international law’ at Utrecht University. The book has just been published by Intersentia in July 2020. * Laura Íñigo Álvarez [email protected] 1
University of Seville, Seville, Spain
123Vol.:(0123456789)
L. Íñigo Álvarez
1 Introduction In the context of armed conflicts, the obligation to provide reparations has a twofold legal character. On the one hand, the provision of reparations is the main consequence of ascribing international responsibility to states and international organisations. On the other hand, reparations constitute one of the central elements in the field of transitional justice.1 Besides, reparations can take different forms that go beyond mere financial compensation, including restitution, satisfaction and guarantees of non-repetition. Despite the evolution towards a more comprehensive duty to provide reparations and the development of victims’ rights, little attention appears to be paid to the possibility of incorporating armed groups as duty holders of this obligation.2 As Moffett rightly notes, there is a disconnect between the prevalence of non-international armed conflicts and the abuses committed by those groups, on the one hand, and the lack of interest in regulating their responsibility for reparations, on the oth
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