Introduction: reflections on the concept and implementation of transformative reparations

Introduction

My commitment to securing appropriate redress for violations of women’s rights is rooted in many decades of social justice and human rights activism in my home country of South Africa. I was engaged in civil society activism and advocacy, both nationally and internationally, particularly around the issue of gender justice and promoted and protected gender equality during my time as head of a gender unit at a university law clinic and in my role as the former parliamentary commissioner of the Commission on Gender Equality. It was during my term as the United Nations (UN) special rapporteur on violence against women, its causes and consequences¹ that I took up the issue of reparations and its transformative potential for women victims of violence, which was the focus of my first thematic report² submitted to the UN Human Rights Council in 2010.

My interest in exploring the notion of ‘transformative’ reparations in particular first emerged from a comment made by Yakin Ertürk, my predecessor as UN special rapporteur, in her 2006 thematic report on the ‘Standard of due diligence³ in which she noted that ‘very little information is available regarding State obligations to provide adequate reparations for acts of violence against women’.⁴ In that report, Professor Ertürk argued that the due diligence obligations of states to protect women, prevent violence, punish perpetrators and provide effective redress were ‘underdeveloped’⁵ and required more attention. In taking up this call, I focused my attention on linking reparations and violence against women in a more substantive way, particularly as it related to international human rights norms, the UN system, and states’ obligations by drawing on the work of academic experts⁶ and civil society activism, including victims’ groups, human rights organisations and women’s associations, who have all contributed to placing the question of gender-sensitive reparations on the national and international agendas.

In this introduction, I provide some contextual background to the concept of transformative reparations for crimes of gendered violence and highlight aspects of the evolution of the right to a remedy for gendered harms, especially the importance of moving from reparative to transformative reparations in both process and substance for victims of sexual violence post-conflict. Addressing normative gaps is also considered in discussing the potential for transformative reparations. In offering my views on lessons from pursuing a transformative approach to reparations, my hope is to complement the excellent scholarship presented in this collection of articles.

The right to remedy in international human rights and criminal law

The roots of transformative reparations for violence against women can be traced back to international human rights law which provides for a right to a remedy in most human rights and humanitarian law treaties. Both the United Nations Convention on the Elimination of All Forms of Discrimination against Women (1979) and the Declaration on the Elimination of Violence against Women (1993) place a duty on the state to prevent, investigate, punish and provide compensation for all acts of violence wherever they occur. Article 4 of the Declaration states that women who are subjected to violence should be informed about and provided with access to mechanisms of justice and to just and effective remedies for the harm that they have suffered, as provided by national legislation.

Despite these provisions within international human rights law, the establishment of both the UN ad hoc tribunals in Rwanda and the former Yugoslavia omitted the right to reparation in their respective mandates.⁷ However, the UN ad hoc tribunals are widely recognised for their contribution to establishing international jurisprudence that sexual violence can constitute a war crime, a crime against humanity and/or an act of genocide.⁸ In the late 1990s, the international gender justice movement took advantage of a key moment in the development of international law with the creation of the Rome Statute (1998) of the International Criminal Court (ICC) to consolidate these advances in jurisprudence with the introduction of a reparative approach to improve responses to sexual violence against women in post-conflict settings.⁹ This movement has been credited with influencing two of the most innovative aspects of the statute: first, the inclusion of an expansive definition of crimes of sexual violence as crimes against humanity (Article 7), war crimes (Article 8), and potentially, genocide (Article 6).¹⁰ Second, provisions to provide victims with the right to reparations and various forms of assistance through a victims’ trust fund (Articles 75 and 79).¹¹ Their efforts were supported by non-governmental organisations and a majority of states.

Coinciding with the establishment of the ICC in 2002, the UN began examining the right to remedy in the context of gross and systematic violations of human rights, resulting in the establishment of The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles and Guidelines) (2005), widely cited as significantly contributing to the recognition of a right to remedy for victims of violations. The right to remedy is said to encompass victims’ equal and effective access to justice as well as to adequate, effective and prompt reparation for harm suffered. As noted in several articles in this special issue, a core principle of these guidelines is the ‘guarantee of non-repetition’ which, as I noted in my 2010 report, is particularly pertinent to gender justice:

Guarantees of non-repetition offer the greatest potential for transforming gender relations. In promising to ensure non-recurrence, [they] trigger a discussion about the underlying structural causes of the violence and their gendered manifestations and . . . about the broader institutional or legal reforms that might be called for to ensure non-repetition.¹²

As such, many of us¹³ view this principle as being central to the ‘transformative’ potential of reparations for victims of sexual violence crime given its focus on preventative measures and addressing the more structural impediments to eliminating violence against women.

With the adoption of the Basic Principles and Guidelines, several academics¹⁴ began producing critical new scholarship on gender and reparations, showing the limitations of the existing reparative measure and the need for a ‘transformative’ approach. This literature was ground-breaking in highlighting the special considerations required for reparations for women survivors of violence to be meaningful and effective long-term. Scholars of violence against women in transitional justice settings showed how ‘retrospective’ reparations failed to address the structural inequalities that precede and, in many cases, endure after the conflict.¹⁵ For example, they revealed how measures of restitution risk returning women to conditions that gave rise to the initial violence.¹⁶ Their claim is for an expanded approach to reparations that addresses the causes and consequences of violence against women in order to prevent its recurrence post-conflict.

Parallel to this academic undertaking, feminist transnational movements working on fighting impunity against gender violence in the context of armed conflict made significant contributions to advancing a gender approach to reparations. The Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation adopted in 2007 is the best expression of emerging civil society transnational concern with providing women and girls with adequate reparations.¹⁷ The Nairobi Declaration emphasised the importance of women’s participation in reparations discussions and processes, thus constituting one of the central tenets of the debates on transformative reparations. It noted that without the participation of women and girls from different ethnicities, class, locations, and so on, reparative initiatives are more likely to reflect men’s experience of violence as well as their concerns, priorities and needs regarding redress, thus sidelining the unique experiences and needs of women survivors.

The release in 2010 of my UN special rapporteur report which drew on these efforts had a ripple effect across the UN, and coincided with a range of other measures within the UN taking shape in response to sexual violence committed against women in post-conflict settings. For example, many agencies, such as UN Women and the Office for the High Commissioner for Human Rights, engaged more critically with the notion of reparations within their respective mandates, particularly in relation to sexual violence in conflict situations. Further, the UN Human Rights Council adopted a resolution requesting the High Commissioner’s office to prepare an analytical study on sexual and gender-based violence and transitional justice settings, which was officially submitted in September 2014.¹⁸ The secretary-general also requested a guidance note on reparations for conflict-related sexual violence.¹⁹ More broadly, the challenge at the heart of my report – the need to focus on the ‘transformative’ potential of reparations to address the underlying structures and systems in place that give rise to violence against women – also appeared to catalyse within the UN community a re-examination of the existing patterns of inequality, discrimination, contextual histories, structural subordination, and systematic marginalisation of women in conflict and post-conflict situations.

Despite these initiatives, sexual violence against women post-conflict has not diminished substantially; indeed, in some cases, the violence has increased.²⁰ Questions have also been raised about the mechanisms through which a transformative reparative agenda can be achieved. The ICC’s first forays into adjudicating for reparations for sexual violence crimes have been unsteady, at best. The process has been plagued by gender crimes omissions at the outset of trials, extended delays in the judicial process for establishing reparative principles and implementation plans, insufficient resources, disagreements on the funding sources for reparations, lack of cohesion among victims’ groups demands (for example, collective reparations as opposed to individual compensation), and the inconsistent application of reparations approaches across cases being tried at the court, among other challenges.

With the obvious limitations of court-based reparative measures, attention has also been drawn towards other transitional justice mechanisms, and how these could be rendered responsive to conflict-based harms experienced by women.²¹ This has led to increasing interest in how to make sure that truth-telling processes are responsive to the specific needs and concerns of women. Increasingly, truth and reconciliation commissions’ (TRCs) mandates are explicitly incorporating gender violence as falling within their scope of investigation. Many TRCs are trying to mainstream gender in their operations and are also holding thematic hearings devoted to female victims of conflict. TRCs are also increasingly ensuring that visibility is given to women’s experiences of the conflict in their reports and recommendations.²² These are all encouraging signs that the evolution of more transformative reparations for gendered violence crimes are being pursued through these less formal mechanisms, as well as through formal international courts which have greater restrictions on their actions in this area.

The theoretical and practical evolution of ‘transformative’ reparations

Despite incremental progress in bringing greater clarity to the content of the obligation to provide remedies for violations of sexual and gender-based violence, a common understanding of the ‘transformative’ potential of reparations for violence against women remains elusive. However, during my tenure as UN special rapporteur and beyond, I can point to two key areas where the concept has advanced: the unlinking of compensation to reparations; and the emphasis on developing and implementing reparations at the individual, institutional and structural levels.

Shifting away from compensation-only reparations

One positive development of advocating for a more transformative approach to reparations is the shift away from a narrow conceptualisation of compensation as reparations. My work and interest in examining women’s rights and transitional justice in post-conflict settings led to concerns with the way the issue of reparations was being interpreted. In those early days, it was clear that reparations were being linked almost exclusively to the principle of compensation, as opposed to a more comprehensive, substantive form of redress which is transformative in its aims. This is not to under-estimate the importance of compensation for victims of sexual violence. Indeed, compensation may provide much needed immediate assistance to those survivors. As my predecessor highlighted in her 2006 report:

Compensation for acts of violence against women may involve the award of financial damages for any physical and psychological injuries suffered, for loss of employment and educational opportunities, for loss of social benefits, for harm to reputation and dignity as well as any legal, medical or social costs incurred as a consequence of the violence. States are also required to ensure that women victims of violence have access to appropriate rehabilitation and support services. The notion of reparation may also include an element of restorative justice.²³

While awards of compensation may provide much needed assistance and relief to survivors, part of the aim of my 2010 report was to challenge the understanding of reparations beyond compensation, to broader manifestations of redress and the right to a remedy, particularly as outlined in the more comprehensive Basic Principles and Guidelines.

An expanded focus on individual, institutional and structural transformation

In moving away from a compensation-only approach to reparations, it has become clear within the UN, academia and transitional justice organisations that in order for reparations to be transformative, they must operate on three levels: individual, institutional and structural. This is reinforced in my 2010 and subsequent reports where I advocate for the critical interplay of these three levels. However, it has become increasingly apparent that the remedial solutions that are generally proposed – and implemented to furthering degrees – are not working across these levels and a number of challenges remain.

At the individual level, ensuring the rights of women to access both criminal and civil remedies as well as the establishment of effective protection and support services for women survivors of violence has significant practical and symbolic value for the victim of serious crimes. Many place considerable weight on the successful prosecution of sexual violence crimes at criminal courts and tribunals as a central component of any redress system. A satisfactory outcome within a retributive justice system is critical and compensation as a form of reparation for the harms endured by survivors of sexual violence may also provide some relief. However, it is my belief that these two outcomes alone may be insufficient.

Victims are not the only right-holders who suffer harm. Potentially, close family members and dependents are also affected or harmed through the violation of an individual. The strict notion of a victim as linking rights and harms can risk omitting the fact that every gross violation generates a ‘community of harm’ which impacts others. Defining the circle of beneficiaries and the prioritisation of victims and beneficiaries according to harm can have important consequences for women, including how violence impacts the family and its members and how the concept of family and systems of family support may be treated in different societies.

Recently, the notion that reparations benefits can be distributed to ‘collectivities’ has garnered interest and support. Both the Basic Principles²⁴ and the Principles to Combat Impunity²⁵ endorse the idea of collective reparations. However, the term ‘collective reparations’ is ambiguous: ‘collective’ is used to qualify ‘reparations’, that is, the types of goods distributed or the mode of distributing them; alternatively, the term is used to qualify the ‘subject’ who receives them, namely, collectivities, including ethnic or racial groups who might have been particularly targeted. Thus, an apology addressed to victims in general, the construction of a school, or a hospital undertaken in the name of reparations, or measures of cultural redress in favour of an indigenous population, may all be considered collective reparations. A focus on collective reparations may however undermine the needs of doing justice to individual women and this concern warrants ongoing exploration of how the two reparative objectives may intersect.

At the institutional level, the challenge remains that courts and judges largely do not understand how to propose and implement transformative remedies. In many respects, this is understandable as the conceptual understanding of ‘transformation’ for reparations for sexual and gender-based violence crimes is still being debated by experts in the field – including within this special issue – a decade after academics and women’s rights activists first coined the term.

One thing I have identified through my investigation is that women’s access to meaningful reparations may depend more on addressing the procedural hurdles they may encounter than on the content of reparation measures. As such, an ongoing challenge is to ensure that legal institutions offer systematic training and sensitisation at all levels of the judicial process, including with police, medical and investigative personnel on how to treat victims with dignity and respect, and how to collect evidence that can be used in courts. Similarly, prosecutors and magistrates need additional specific training to handle sexual and gender-based violence charges.²⁶

As the issue of conflict-related sexual violence has received greater attention internationally, including within internationalised courts and tribunals, further developing the capacity within the legal profession will improve both the retributive and reparative process, leading to more appropriate reparations measures for victims of violence against women. In particular, broader institutional or legal reforms may be required in order to ensure the ‘guarantee of non-repetition’ for gendered-violence crimes. I believe a constructive exercise would be to bring judges, prosecutors, academics, and representatives of gender justice organisations together to try and collectively build consensus on what we understand as redress and to interrogate our legislative and policy frameworks, which will hopefully lead to a shared understanding of transformative reparations, but also constructive legal reform as well.

At the structural level, violence perpetrated against women, whether in times of conflict or peace, generally feeds into patterns of pre-existing and often cross-cutting structural subordination and systemic marginalisation. This then raises the question of how measures of redress should link individual reparation and structural transformation. In envisaging women and girls as potential beneficiaries of reparations, a key hurdle to address is that much of the violence they experience in conflict situations predates the conflict, and continues – or indeed may worsen – in the post-conflict scenario. Even in non-conflict contexts, acts of violence against women, such as assault and sexual violence, are part of a larger system of gender hierarchy that can only be fully grasped when seen in the broader structural context. This explains why adequate reparations for women cannot simply entail their return to the situation they were in before the individual instance of violence; instead, such reparations should strive to transform the status quo. Transformative remedies should help in some way to change the realities of people that are impacted by violence.

Although reparative measures provide a window of opportunity for more structural reforms in addressing violence against women, there are very few examples of this occurring in practice. In the Inter-American Court’s Cotton Field case, the failure of the Mexican government to fully implement the court’s reparations orders to develop measures aimed at transforming structural discrimination – in the face of an ongoing pattern of targeted, brutal violence against women – suggests that such reparative approaches may be limited through lack of implementation.²⁷ Other examples in this special issue, in relation to the ICC, the Sierra Leone TRC and the Northern Ireland context, also point to shortcomings in the design and or implementation of reparations that could have a transformative effect in addressing systemic sexual violence.

While acknowledgement of the need to address all three different levels of reparative needs for women has been identified, the implementation of the more transformative aspects of reparations remains weak, and the political will to address the institutional and structural elements so critical to the transformative approach has been insufficient.

Transformative reparations: triple threat, triple opportunity

In my view, there remain three main barriers to reparations achieving their transformative potential: the ongoing silencing of women, the culture of impunity, and the entrenched patriarchy that describes so many settings where systematic gendered violence takes place. At the heart of violence against women is the failure of the state to protect, prevent and effectively respond to the issue. There are three responses that I believe are key to reparations overcoming these barriers to achieve their transformative potential: acknowledgment of the crimes, prioritisation of accountability, and enabling the transformation of societies through the empowerment of women. These responses are not unfamiliar to experts and activists working in the field of gender violence who continue to address these core issues, in order to disrupt responses to violence against women.

In terms of acknowledgment, my observation is that silencing of women remains pervasive. There has been some progress with women finding their voices and sharing their experiences of sexual violence. However, the vast majority of women still do not report crimes due to the pervasive stigma associated with these crimes, or if they do, they are often not heard, because of an often flawed, outdated response from law enforcement, thus obscuring the true nature of the pandemic. In the case of South Africa for instance, this plays out in everyday life, where reporting the crime of sexual violence has not advanced significantly. I would hazard a guess that if a woman is poor, black, living in a township and she calls the police to report a domestic violence incident, she will probably get the same response as she got 20 years ago: the response is likely to be one of reluctance and complacency accompanied by the view that that such crimes are embedded in the culture of a society and should remain in the private domain.

As many of the articles in this special issue reveal, the importance of having some process – whether a formal court or a more informal process such as a women’s commission – that can acknowledge the true nature, scale and scope of the problem through systematic reporting and documentation of crimes is a critical first step to developing an appropriate reparations response. An important factor in determining and designing reparations for gross violations against women is an acknowledgement that the same violations may give rise to different harms for men and women, and impact differently for women and girls depending on context.

Closely linked to the lack of acknowledgement of crimes in certain settings is the norm of impunity for the perpetrators of sexual violence crimes. In my view, there has been a normalisation of the lack of accountability, which sends a message to society that gendered violence crimes are permissible. The lack of accountability is a particular problem for victims of sexual violence in post-conflict settings. A significant issue arises because victims and their perpetrators are often still residing in the same social and physical spaces, leaving the victims to confront their attackers every day. Without the economic resources to move, little if any acknowledgement of the harm, and no accountability mechanisms capable of casting blame on the perpetrators, results in the trauma experienced by victims being reinforced. Any effort to achieve a transformative approach must thus include accountability measures that address the impunity gap and help relieve the victim of the burden of harm.

The third response to achieving repair for acts of violence against women involves undermining the system of gender patriarchy and hierarchy which fuels the violence in the first place. One step towards this response is to ensure women’s participation in reparations discussions and processes, to ensure that initiatives are more likely to reflect their experience of violence and their concerns, priorities and needs regarding redress. Without such participation, an opportunity is missed for victims to gain a sense of agency that may in itself be an important form of rehabilitation, especially when victims come to perceive themselves as actors of social change. Such empowerment is important for women and society in general, to draw the links between past and present forms of violence and to seize the opportunity provided by reparations discussions to press for more structural reforms.

The literature on transformative reparations provides some guidance to support women-centred processes of reparations which help undermine gender hierarchies. Among others, these include:

1. Requiring the participation of women in the process of shaping, implementing, monitoring and evaluating reparations programmes;

2. Designing a reparations procedure that renders it accessible to all women and girls;

3. Investigating facts to determine the existence of certain violations of rights and making sure that violations that target women and girls are prosecuted;

4. Identifying responsibility for violations, including by omission, and by those perpetrators that target women and girls;

5. Determining harms, including those which are gender-specific or have a differential impact on women and girls; and

6. Determining appropriate measures of restorative redress, except for when those measures may themselves be discriminatory or fail to address the structural roots underlying the violence.

These steps go some way to undermining existing, exclusionary processes which have traditionally locked women out of reparations processes, and thereby helped maintain existing male-centred systems of privilege.

Conclusion

Unfortunately, the obligation to provide adequate reparations that involve ensuring the rights of women to access both criminal and civil remedies and the establishment of effective protection, support and rehabilitation services for survivors of violence, remains an unrealised goal. Similarly, as the articles in this special issue point out, the efforts within the UN, by academics and activists to promote reparations that ‘include elements of restorative justice and the need to address the pre-existing inequalities, injustices, prejudices and biases or other societal perceptions and practices that enabled violations to occur’,²⁸ is more aspirational then functional. To date, many efforts have fallen well short of that aspiration because: reparations have been narrowly conceptualised; they have not been sensitive to the gendered hierarchies in conflict and post-conflict settings; and have not been backed with the political, social and economic resources capable of transforming the conditions that trigger violence against women in the first place.

I acknowledge, as indeed do the other articles in this special issue, that overcoming the barriers to achieve transformative reparations for women victims of violence is an ambitious objective and involves working on multiple planes simultaneously. Perhaps what is required is a specific UN treaty on violence against women. Such a treaty can contribute to providing legally binding definitions, clearly articulate the obligation of states to act with due diligence in responding to and preventing sexual and gender-based violence, highlight norms and standards that require transformative remedies, and provide for dedicated and effective monitoring mechanisms to oversee state actions or inactions regarding gendered violence. It can also further elaborate on the right to transformative reparations which must include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, to address both the individual and systemic obligations of states in respect of individual, institutional and structural aspects of sexual and gender-based violence. A provision such as this also challenges the current framing of reparations as stated in the Council of Europe Convention on Violence against Women and Domestic Violence which is narrowly focused on perpetrator-linked restitution and compensation, civil lawsuits initiated by victims, and alternate sentencing measures. Such a widespread and pervasive human rights violation requires specific legally binding obligations that extend to both state and non-state actors. Using ‘soft law’ approaches, as is evident in the UN system, has proven to be ineffective in addressing impunity, silences and the lack of comprehensive redress.

Disclosure statement

No potential conflict of interest was reported by the author.

Note on contributor

Rashida Manjoo is a Professor in the Department of Public Law, University of Cape Town, South Africa. She was the convenor of the Human Rights Program in the Law Faculty where she teaches, supervises and advises students. The UN Human Rights Council appointed Professor Manjoo to the position of United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, from 2009 to 2015. She is also the former Parliamentary Commissioner of the Commission on Gender Equality, an institution created by the constitution of South Africa, which is mandated to oversee the promotion and protection of gender equality.

Notes

1 The central aim of my role as special rapporteur was to monitor and report on states’ compliance in responding and preventing violence against women, its causes and consequences, both generally and in different country contexts. For information on the role, please see: http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/SRWomenIndex.aspx (accessed 27 July 2017). Submitting thematic reports to the UN Human Rights Council and General Assembly was one of the core responsibilities of my mandate. For a list of thematic reports, please see: http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/AnnualReports.aspx (accessed 27 July 2017). The thematic reports complemented country-specific reports, of which I conducted 20 country missions during my six-year tenure as special rapporteur. These country reports provided an opportunity to create a dialogue with national governments and civil society on their efforts towards the elimination of violence against women, broadly, and, at the global level, to provide a perspective to UN member states on my findings on country missions. For a list of country reports, please see: http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/CountryVisits.aspx (accessed 27 July 2017).

2 United Nations General Assembly, Report of the UN Special Rapporteur on Violence against Women, its Causes and Consequences, Rashida Manjoo, on ‘Reparations to Women Who Have Been Subjected to Violence’, UN Doc. A/HRC/14/22, 23 April 2010, 14th Session of the UN Human Rights Council, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G10/131/09/PDF/G1013109.pdf?OpenElement (accessed 27 July 2017).

3 United Nations Economic and Social Council, Report of the UN Special Rapporteur on Violence against Women, its Causes and Consequences, Yakin Ertürk, on ‘Integration of the Human Rights of Women and the Gender Perspective: Violence against Women: The Due Diligence Standard as a Tool for the Elimination of Violence against Women, UN Doc. E/CN.4/2006/61, 20 January 2006, Commission on Human Rights, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G06/103/50/PDF/G0610350.pdf?OpenElement (accessed 27 July 2017).

4 Ibid., para. 55.

5 Ibid.

6 See Ruth Rubio-Marín, ed., What Happened to the Women? Gender and Reparations for Human Rights Violations (New York: Social Science Research Council, 2006); Ruth Rubio-Marín, ed., The Gender of Reparations: Unsettling Sexual Hierarchies while Redressing Human Rights Violations (Cambridge: Cambridge University Press, 2009).

7 Conor McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge: Cambridge University Press, 2012), 46; Letter dated 12 October 2000 from the President of the International Tribunal for the Former Yugoslavia addressed to the Secretary-General, S/2000/1063, 3 November 2000; Letter dated 9 November 2000 from the President of the International Criminal Tribunal for Rwanda addressed to the Secretary-General, S/2000/1198, 15 December 2000.

8 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, Trial Judgment, 2 September 1998, para. 692.

9 Women’s Caucus for Gender Justice, Gender Justice and the ICC. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15–17 June 1998, Rome, Italy; Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy (Oxford: Oxford University Press, 2016); Andrea Durbach and Louise Chappell, ‘“Leaving Behind the Age of Impunity”: Victims of Gender Violence and the Promise of Reparations’, International Feminist Journal of Politics 16, no. 4 (2014): 543–62.

10 Louise Chappell, ‘The Role of the ICC in Transitional Gender Justice: Capacity and Limitations’, in Gender and Transitional Justice, ed. Susanne Buckley-Zistel and Ruth Stanley (Basingstoke: Palgrave Macmillan, 2011), 37–58.

11 McCarthy, Reparations and Victim.

12 A/HRC/14/22, 2010, 26.

13 Durbach and Chappell, ‘Leaving Behind the Age of Impunity’.

14 Rubio-Marín, What Happened to the Women; Rubio-Marín, The Gender of Reparations.

15 Colleen Duggan and Adila Abusharaf, ‘Reparation of Sexual Violence in Democratic Transitions: The Search for Gender Justice’, in The Handbook of Reparations, ed. Pablo de Grieff (Oxford: Oxford University Press, 2006), 623–49.

16 Rubio-Marín, The Gender of Reparations.

17 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, International Meeting on Women’s and Girls’ Right to a Remedy and Reparation, Nairobi, 19–21 March 2007. https://www.fidh.org/IMG/pdf/NAIROBI_DECLARATIONeng.pdf (accessed 1 August 2017).

18 United Nations General Assembly, Analytical Study Focusing on Gender-based and Sexual Violence in Relation to Transitional Justice, Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. No. A/HRC/27/21, 30 June 2014, 27th Session of the Human Rights Council.

19 United Nations, Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence, June 2014. http://www.ohchr.org/Documents/Press/GuidanceNoteReparationsJune-2014.pdf (accessed 27 July 2017).

20 Jacqui True, The Political Economy of Violence against Women (Oxford: Oxford University Press, 2012); Duggan and Abusharaf, ‘Reparation of Sexual Violence’; Susan Harris Rimmer, Gender and Transitional Justice: The Women of East Timor (Milton Park: Routledge, 2010); Rashida Manjoo and Calleigh McRaith, ‘Gender-Based Violence and Justice in Conflict and Post-Conflict Areas’, Cornell International Law Journal 44 (2011): 11–31.

21 Rome Statute of the International Criminal Court Articles 75 (Reparations to Victims) and 79.

22 Truth commissions in Guatemala, South Africa, Peru, Paraguay and Ecuador paid particular attention to gender, even though their mandates were formally gender neutral. In Haiti, Sierra Leone and Timor Leste, gender or sexual violence was explicitly incorporated into the mandate of the respective truth commissions and these topics were identified as critical avenues of investigation. See: Vasuki Nesiah et al., Truth Commissions and Gender: Principle, Policies and Procedures (New York: International Center for Transitional Justice, July 2006). The Colombian Historical Memory Working Group at the National Reparations and Reconciliation Commission has specifically included a research line on gender, land dispossession and property restitution. See: CNRR-Área de memoria Histórica-Línea de Investigación Tierra y Conflicto, ‘El despojo de Tierras y territorios. Aproximación Conceptual’ (Bogotá: IEPRI, CNRR, 2009).

23 E/CN.4/2006/61, para. 84.

24 ‘In addition to individual access to justice, States should endeavor to develop procedures to allow groups of victims to present claims for reparation and to receive reparation, as appropriate’, Basic Principles, 6. Also, as seen, the definition of victim refers to persons individually or collectively harmed.

25 ‘Reparations may also be provided through programs, based upon legislative or administrative measures, funded by national or international sources, addressed to individuals and to communities’, Principles to Combat Impunity, Principle 32.

26 A/HRC/14/22, 2010, paras 34 and 35.

27 A/HRC/14/22, 2010, paras 77–8; Harris Rimmer, Gender and Transitional Justice.

28 A/HRC/14/22, 2010, pp. 1–2.