Compensation for Serious Human Rights Violations between Solidarity and Realism

The right of individuals to receive compensation when they are victims of serious human rights violations is part of their right to redress and is gradually gaining autonomy from the interstate dimension, whereby damage suffered by a citizen represents an indirect damage to the State. At the same time, and regardless of the identification and punishment of the author of the crime, compensation can also serve as a “welfare measure”, based on an idea of solidarity with the victim. The aim of the article is to analyse if and to what extent such a pattern emerges at inter-State level and what its legal foundations can be in International law by looking at international human rights law as well as at the law and practice of international criminal tribunals. The trend to share the compensation burden in case of gross violations may find its roots in the notion of Erga Omnes obligations as well as in the principle of the responsibility to protect. Both of them, it is argued, find in solidarity a “structural principle” able to overcome the mere logic of retributive justice when fundamental human rights are at stake.