Realizing the Right to Reparation by Reforming Domestic Crime Victims’ Funds

Realizing the Right to Reparation by Reforming Domestic Crime Victims’ Funds

Mira Naseer*

THE ISSUE

Crime victims’ funds or schemes utilize public funds to support victims of violent crimes.[1] These funds are important mechanisms for victims to access financial assistance, which can be critical to their rehabilitation. However, victims of many international and transnational crimes are unable to access adequate reparation, including compensation, through domestic mechanisms.[2] Across the world, domestic victims’ compensation schemes are insufficient to provide redress to foreign victims even in cases where there is a clear nexus between the perpetrator and the state administering the compensation scheme.[3] For example, victims of human rights violations by citizens of western democratic states and victims of human rights violations facilitated by foreign corporations and prosecuted by Western governments often receive little to no reparation from those states’ domestic reparation programs.[4]  Where states do prosecute these offenses, the fines and penalties are typically deposited into state treasuries, rather than used for the benefit of victims—essentially resulting in a situation where states are profiting off violations of international law.

This article urges policymakers to consider how the scope of victims’ compensation schemes can be reformed to reach foreign victims of international crimes, fulfil state obligations to ensure adequate reparation, and assist victims in realising the right to reparation. Such reforms can include expanding the categories of crimes that are covered by domestic crime victims’ funds to include at least those over which the administering state recognises the right to assert universal jurisdiction; broadening the scope of victims’ funds to include foreign victims harmed by perpetrators with a clear nexus to the administering state; and establishing victims’ compensation schemes that repurpose funds from civil forfeiture actions related to human rights and international humanitarian law violations for the benefit of victims both inside and outside the sanctioning jurisdiction. Adopting these proposals can help ensure that assets connected to international law violations are mobilized not for the benefit of the state, but for victims who have endured atrocity.

At a time when the international legal system appears to be at a crossroads, states have an opportunity to take positive measures to meet their obligation to provide reparations under international law and victims’ right to reparation.[5] Western governments have already shown a willingness to provide compensation to victims of the war in Ukraine.[6] It is time that they do the same for other victims of human rights and humanitarian law violations. By doing so, states may avoid contentious litigation and punitive accountability measures, while affirming the moral values that underpin the human rights system.

THE RIGHT TO REPARATION UNDER INTERNATIONAL LAW & STATE OBLIGATIONS

The right to reparation is well-established in international law and encompasses a wide range of remedies which go beyond seeking criminal justice and accountability and include compensation and rehabilitation.[7] Compensation can transform the position of victims of human rights violations by enabling access to medical and psychosocial care,[8] or by providing a pathway for educational, employment, and housing opportunities.[9] The absence of compensation not only breaches international law,[10] but also results in further victimization for survivors.[11] Access to existing crime victims’ funds is often the most effective and, in some cases, the only way for victims to actualize the right to reparation and receive compensation for the harms they have suffered.[12]

Article 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“UNCAT”), which enshrines victims’ right to redress, is on its face not subject to any territorial limitation.[13] With regard to a state party’s obligation to provide redress, the Committee Against Torture (“CAT”) has stated that:

“[T]he application of article 14 is not limited to victims who were harmed in the territory of the State party or by or against nationals of the State party. The Committee has commended the efforts of States parties for providing civil remedies for victims who were subjected to torture or ill-treatment outside their territory. This is particularly important when a victim is unable to exercise the rights guaranteed under article 14 in the territory where the violation took place. Indeed, article 14 requires States parties to ensure that all victims of torture and ill-treatment are able to access remedy and obtain redress.” [14]

As such, Article 14 of UNCAT obligates states to ensure that all victims of torture are able to obtain redress within the state’s legal system.[15]

Full compliance with international obligations pertaining to victims’ right to reparation, and in particular UNCAT, requires states to ensure access to reparations where there is a nexus between the human rights violation and the state, even when the offenses committed are outside their territory or to victims who are not nationals or residents.  The nexus may be satisfied where the perpetrator is a national or resident of the state that holds the obligation to ensure reparations, or where the perpetrator is a corporation of that state. In cases where this nexus is satisfied and existing accountability mechanisms are not sufficient to provide victims with reparation, compensation through domestic crime victims’ funds may allow states to meet their reparation obligations.

OVERVIEW OF CRIME VICTIMS’ FUNDS

Crime victims’ funds grant public funds to victims of violent crimes.[16] Domestic compensation schemes for victims of crime are an ancient concept based on a restorative theory of criminal law.[17] The idea behind state compensation schemes is that even if the perpetrator of the crime has no available funds that can be claimed by the victim as a result of their loss or injury, satisfaction should be made at the expense of the state treasury because it is an object of public benefit and concerns the wellbeing of the society as a whole.[18] Unlike judicial claims for compensation which seek damages from responsible parties, crime victims’ funds draw on public funds to meet specific needs of victims or further the public good.[19] Victims’ funds typically pool monetary penalties that are imposed on a specific group of  offenders and distribute them to victims of certain specified offenses. For example, in the United States, the Federal Crime Victims Fund, which is funded by federal criminal fines, forfeited bail bonds, penalties, and special assessments collected by various federal offices, provides grants to federal, state and Tribal victim assistance programs.[20] In the United Kingdom, the Criminal Injuries Compensation Scheme is a government-funded program that provides compensation to victims of a limited number of violent crimes, including physical assault and sexual abuse.[21] Similar funds exist across Europe,[22] Canada,[23] Australia,[24] and New Zealand.[25]

The United Nations (“U.N.”) also takes a strong stance in favour of victim compensation schemes. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power anticipates that “[w]hen compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation.”[26] The U.N. has its own fund for victims’ compensation, the U.N. Voluntary Fund for Victims of Torture (“UNVFVT”), which distributes funds to non-governmental organisations providing humanitarian assistance to victims of torture and their family members.[27]

Today, almost all democratic states have some form of domestic victims’ fund or compensation scheme.[28] More recently, funds have emerged to compensate grave violent crimes, specific categories of crime including terrorism, or even specific incidents.[29]

Victims’ compensation schemes also have considerable implications for the conceptualisation of justice. Victims’ funds push criminal legal systems in a more restorative direction, making reparations to victims the outcome of criminal processes. Further, while traditionally states would place criminal penalties into general budgets, victims’ compensation schemes help ‘socialise’ the cost of crime by repurposing penalties and fines for victim assistance programs or direct payments to victims.[30]

LIMITATIONS OF EXISTING DOMESTIC CRIME VICTIMS’ FUNDS

While victims’ compensation funds provide an avenue for reparation in cases of domestic crime, they are limited in their ability to compensate foreign victims, even in cases where there is a nexus to the jurisdiction of the fund. Outside of some funds for victims of terrorism that are limited in scope,[31] no domestic victims’ funds have extraterritorial reach.[32] To be eligible for compensation, victims typically need to be either nationals or residents of the jurisdiction where the fund operates at the time the crime was committed, or the crime must have occurred within the fund’s jurisdiction for victims.[33]

In practice, these limitations in scope prevent non-resident, non-citizen victims from claiming compensation through the domestic fund of their perpetrator’s state unless the crimes occurred within the borders of that state. Moreover, identifiable victims of human rights violations living outside of a fund’s jurisdiction are unable to claim compensation in cases where states with established victims’ funds impose criminal or civil penalties in relation to those violations. Instead, funds are often diverted into domestic programs disconnected from the underlying violations that led to the penalties.

VICTIMS’ INABILITY TO ACCESS REPARATIONS

Expanding the scope of domestic victims’ compensation schemes could enable more individuals who have suffered human rights violations to realise their right to reparation under international law. In particular, reparations for two types of violations could be effectively delivered through such reforms. The first type is reparation for foreign victims of terrorism who suffered human rights abuses at the hands of nationals of states with crime victims’ funds. Second, these reforms would expand reparations for victims of human rights violations by perpetrators who have been prosecuted for breaching sanctions associated with prior human rights violations.

Crimes Committed by Foreign Terrorist Fighters

Thousands of foreign fighters, including many from Western countries, joined the Islamic State (“IS”) in the war in Syria and Iraq.[34] Foreign fighters have also been involved in systematic violations committed against Yazidi women and girls by IS, including rape, slavery, sexual violence, murder, torture, and forced marriage.[35] Despite a clear right under international law  for Yazidi women and girls who have been victims of these crimes at the hands of foreign fighters to obtain reparations and potentially compensation, the vast majority have been unable to do so.

This lack of accountability and access to justice for Yazidi women and girls is exemplified in a case brought pro bono by Hogan Lovells on behalf of five Yazidi women who were subjected to various forms of inhuman and degrading treatment, including sexual violence, while held captive in the house of an Australian IS fighter in Syria.[36] Although the victims were not Australian citizens or residents, they sought compensation and other forms of support, such as counselling services, under the New South Wales Victim Support Scheme because the perpetrator of the violations against them was a resident of the Australian state of New South Wales prior to joining IS.[37]  Reports also indicated that the New South Wales Criminal Commission had been attempting to seize assets belonging to the perpetrator.[38]

The primary argument advanced by the lawyers for the five victims is that the definition of “offence” in the New South Wales Victims’ Rights and Support Act ought to be interpreted as including extraterritorial international crimes proscribed by the Criminal Code of Australia, over which Australia recognises the right to assert universal jurisdiction.[39] In making this argument, the victims referred to Australia’s international human rights obligations to victims of sexual violence, which include provisions “to establish national programs for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.”[40] The Australian courts, however, did not engage with the arguments on Australia’s obligations under international law and rejected the five women’s entitlement to any compensation under the domestic scheme.[41]

This case highlights the current shortcomings of domestic crime victims’ funds’ ability to provide justice for survivors of international crimes, including genocide and conflict-related sexual violence, even where there is a clear nexus to the state that operates the scheme. It remains imperative that states strive to apply existing laws in the best interest of victims, and policymakers and legislators expand the scope of domestic mechanisms for justice and accountability.  In the case of victims’ funds this includes expanding the criteria of eligible offenses to encompass international crimes, including those over which the state recognises the right to assert universal jurisdiction. Further, states should make explicit in the eligibility criteria for victims’ compensation schemes that foreign victims (those who are not nationals or residents of the state) can claim benefits under the scheme where the crimes were perpetrated by nationals of the state or where the perpetrators have a close nexus to the state.[42]

Sanctions Breaches Relating to Human Rights Violations

Since Russia’s invasion of Ukraine in February 2022, there has been a proliferation of targeted sanctions aimed at deterring and providing accountability for the ongoing violations.[43] Related to the increased use of targeted sanctions, there has also been an increase in civil and criminal prosecutions for evading and violating sanctions resulting in more monetary penalties.[44] These penalties however have rarely been used to provide reparations for victims of the violations that warranted sanctions designations in the first place. Instead, they are often redirected into general government funds or to domestic crime victims’ funds for which foreign victims are often not eligible.[45] Where it can be demonstrated that a sanctions breach facilitated or enabled human rights or humanitarian law violations against foreign citizens, it is imperative that policymakers consider reforming eligibility of existing victims’ funds so that foreign victims can access any penalties associated with the breach, or establish a separate fund in order to provide compensation to those victims using the levied fines. The following examples of sanctions violations prosecutions show the shortcomings of the current system in providing reparations for victims.

a) Dan Bunkering (Denmark)

In December 2021, A/S Dan-Bunkering Ltd (“Dan Bunkering”) was found guilty by a Danish court of violating E.U. sanctions against the Syrian regime.[46] The court found that Dan Bunkering supplied jet fuel to Russian entities in violation of applicable E.U. sanctions, which was then used in Russian airstrikes in Syria.[47] Civil society has determined that these airstrikes resulted in civilian deaths and loss of property.[48] Dan Bunkering was fined DKK 30 million (U.S. $ 4.56 million), and Dan Bunkering’s holding company was fined an additional DKK 4 million (U.S. $ 610,000).[49] It is possible to identify Syrian victims of the human right violations committed as a result of Dan Bunkering’s actions.[50] However, the monetary penalty levied against the company has not been used to compensate those victims, and there is no indication that the penalty will be used to compensate victims of the airstrikes.

In cases such as this, where there is a potentially identifiable pool of victims and sanctions violations facilitated violations of human rights and international humanitarian law, governments should aim to establish victim compensation schemes funded through monetary penalties for the sanctions violations. Such schemes or funds, through a trustee, can administer either individual compensation or collective reparations programs to identifiable victims and their families—providing an otherwise unavailable avenue for reparation for international crimes. One potential model for such funds is provided by the planned repurposing of funds from the forced sale of Chelsea Football Club in the United Kingdom, after the British government sanctioned its owner in relation to the war in Ukraine.[51] It is reported that 2.5 billion pounds will be forfeited to the U.K. government and, through a trustee, will be earmarked for a charitable foundation to aid victims.[52] However, for such a model to be successful in providing meaningful reparation to victims it must be executed efficiently and involve extensive consultation with survivor groups and civil society.[53] There are also calls from government and civil society to establish an intergovernmental Syria Victims Fund to support reparative measures for victims of international law violations in Syria, funded by the proceeds of monetary judgments linked to violations in Syria.[54] Fines collected by the Danish government from Dan Bunkering could be among the first used to launch this fund.

b) BNP Paribas (France and United States)

In 2017, the French Public Prosecution Service opened an ongoing judicial investigation into allegations of BNP Paribas, France’s largest banking group’s complicity in the 1994 genocide in Rwanda.[55] Specifically, it is alleged that, in violation of a U.N. arms embargo, BNP Paribas transferred U.S. $1.3 million to a South African arms dealer which used the funds to purchase 80 tonnes of weapons for perpetrators of the genocide.[56]

This is not the first time BNP Paribas has been accused of violating sanctions regimes. In 2014, the company pleaded guilty to evading U.S. trade embargoes in order to help clients in Sudan, Cuba and Iran between 2002 and 2012, for which it agreed to pay a criminal penalty of U.S. $ 8.9 billion.[57] This was the first time a financial institution had been convicted and sentenced for violations of U.S. economic sanctions, and the total financial penalty was, at the time, the largest ever imposed by the U.S. Department of Justice (“DOJ”) in a criminal case.[58]

BNP Paribas admitted to acting as Sudan’s “de facto central bank” between 2002 and 2008, processing billions of dollars’ worth of transactions on behalf of sanctioned Sudanese entities.[59] During that period, the Sudanese government committed widespread human rights violations—mass murder, forced displacement, sexual violence, detention, torture, and other forms of inhumane treatment – resulting in the death of more than 300,000 civilians, specifically marginalized communities in Darfur and other areas.[60] Several sanctions regimes from the U.N., the E.U., and other countries were applicable at the time.[61]

In 2015, the U.S. DOJ announced that it would explore “ways to use the forfeited funds to compensate individuals who may have been harmed by the sanctioned regime[] of Sudan”.[62] The U.S. DOJ even put out a call for individual victims or their representatives to provide information to the government describing the nature and value of the harm they suffered.[63] A proposal for the use of the monetary penalties that gained support from Sudanese civil society called for funds to provide emergency humanitarian aid for Sudanese refugees and internally displaced persons and set out a community-based reparation program focussing on reconstruction and redevelopment.[64]  Despite this initial momentum, Sudanese victims never received any compensation from the monetary penalties levied against BNP Paribas.[65]

The U.S. government’s loss of momentum in using the fine money to compensate victims in Sudan highlights the need for standardised mechanisms for distributing and accessing monetary penalties levied in relation to sanctions violations with international human rights consequences. Where sanctions violations are clearly linked to human rights abuses, as in the case of BNP Paribas’ actions in Sudan and potentially in Rwanda, foreign victims should be able to obtain compensation. Therefore, penalties should have been placed in a victim trust fund with the explicit purpose of providing compensation to Sudanese victims. Then governments, in consultation with civil society, could have established specific procedures for identifying victims and distributing compensation.

THE PATH FORWARD

At present, there is a large gap between victims’ right to reparation as enshrined in international law and the ability of existing mechanisms to compensate them. There is an urgent need for states to reform and establish domestic crime victims’ funds to allow foreign victims to access compensation. As part of these reforms, states should expand the list of crimes that are covered by existing domestic crime victims’ funds to include grave violations of human rights and international humanitarian law. At a minimum, states should include those crimes over which the state recognises the right to assert universal jurisdiction. States should also ensure that foreign (non-citizen and non-resident) victims are eligible to receive compensation from domestic victim funds where perpetrators have a close nexus to the state, including where perpetrators are nationals of that state. Finally, states should establish victims’ compensation funds that use monetary penalties levied in civil forfeiture actions for sanctions violations related to international law violations for the benefit of all victims of those violations.

* Mira Naseer is a Legal Practitioner working on issues of human rights and international criminal law. Her current practice focuses on accountability for gender crimes at international tribunals. She previously worked on issues of human rights sanctions, and asset recovery mechanisms as a means to provide reparations to victims of gross human rights violations. She holds a J.D. from Harvard Law School, an MPhil in Public Policy from the University of Cambridge, and a B.A. in International Relations from the University of Pennsylvania.

[1] Frédéric Mégret, Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons from Domestic Compensation Schemes, 36 Brook. J. Int’l L. (2010). See also Office for Victims of Crime, https://ovc.ojp.gov/about/crime-victims-fund.

[2] See, e.g., Jennifer Zerk, Towards a fairer and more effective system of domestic law remedies A report prepared for the Office of the UN High Commissioner for Human Rights, 64–66, 68–70 (Feb. 28, 2014), https://www.ohchr.org/sites/default/files/Documents/Issues/Business/DomesticLawRemedies/Two-pagesummaryMainStudyConsultationProcess.pdf; REDRESS, Financial Accountability for Torture and Other Human Rights Abuses: A Framework for Developing Case Strategies, 11 (2021), https://redress.org/wp-content/uploads/2021/03/Financial-Accountability-for-Torture.pdf.

[3] Many western democracies have crime victims’ compensation funds; however, these typically do not extend to foreign victims, i.e., those who are not nationals or residents of the fund administering state and/or do not cover crimes that occurred outside the fund administrating states’ borders. See, e.g., Office for Victims of Crime, https://ovc.ojp.gov/about/crime-victims-fund.; U.K. Criminal Injuries Compensation Scheme, § 11 (2012), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/808343/criminal-injuries-compensation-scheme-2012.pdf; Financial Assistance for Victims of Crime 2004 (Austl.) https://www.qld.gov.au/law/crime-and-police/victims-and-witnesses-of-crime/financial-assistance/understanding. 2004 O.J. (L 261/15) xxx, https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:261:0015:0018:en:PDF#:~:text=This%20Directive%20sets%20up%20a,committed%20in%20their%20respective%20territories.

[4] See, e.g., See Hogan Lovells, Australia High Court declines to provide reparations to Yazidi victims of enslavement, sexual violence and crimes against humanity perpetrated by an Australian foreign fighter of so called “Islamic State”, (Apr. 30, 2021), https://www.hoganlovells.com/en/news/australia-high-court-declines-to-provide-reparations-to-yazidi-victims-of-enslavement-sexual-violence-and-crimes-against-humanity-perpetrated-by-an-australian-foreign-fighter-of-so-called-islamic-state; Dan-Bunkering, Bunker Holding and CEO guilty of Syria sanctions violations; fined USD 5.17 million in total, Manifold Times, (Dec. 14, 2021), https://www.manifoldtimes.com/news/dan-bunkering-bunker-holding-and-ceo-guilty-of-syria-sanctions-violations-fined-usd-5-17-million-in-total/#:~:text=By%20the%20court’s%20judgment%2C%20Dan,million%20(USD%20610%2C000)%20fine; Judicial Investigation Opened into BNP Paribas’ Role in Atrocities in Sudan, https://www.fidh.org/en/issues/international-justice/judicial-investigation-opened-into-bnp-paribas-role-in-atrocities-in; Stephany Caro Mejia, Collective Reparation for Victims of ISIS (2023), https://www.justsecurity.org/87521/collective-reparations-for-victims-of-isis/.

[5] See, e.g., G.A. Res. 60/147, ¶ 15-16 (Dec. 15, 2005).

[6] See Canada starts first Process to Seize and Pursue the Forfeiture of Assets of Sanctioned Russian Oligarch, https://www.canada.ca/en/global-affairs/news/2022/12/canada-starts-first-process-to-seize-and-pursue-the-forfeiture-of-assets-of-sanctioned-russian-oligarch.html.; CM/Res(2023)3, Establishing the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine (May 12, 2013).; Julia Payne, Belgium Expects to use $2.4 billion in tax on frozen Russian assets to fund Ukraine, REUTERS (Oct. 11, 2023, 1:43 PM), https://www.reuters.com/world/europe/belgium-expects-use-24-bln-tax-frozen-russian-assets-fund-ukraine-2023-10-11/.;

[7] See G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948); G.A. Res. 2200A (XXI), Article 2 International Covenant on Civil and Political Rights, (Dec. 16, 1966); G.A. Res. 2106 (XX), Article 6 International Convention on the Elimination of All Forms of Racial Discrimination, (Dec. 21, 1965); G.A. Res. 47/133, Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearances, (Dec. 23, 2010); G.A. Res. 39/46, Article 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (Dec. 10, 1984); A/CONF.183/9, Article 75 of the Rome Statute of the International Criminal Court (“Rome Statute”), (July 12, 1998); Doc. No. 33, Article 3 of the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land (“Hague Convention (IV)”), (Oct. 18, 1907); International Committee of the Red Cross, Rule 150. Reparation, https://ihl-databases.icrc.org/en/customary-ihl/v1/rule150#title-1.

[8] See, e.g., Amal Nassar et al., UKRAINE STUDY ON THE STATUS OF AND OPPORTUNITIES FOR REPARATIONS FOR SURVIVORS OF CONFLICT-RELATED SEXUAL VIOLENCE 48 (Global Survivors Fund, 2022). (discussing survivors’ priorities for compensation reparations, which can be critical to access rehabilitation services, medical testing, and provide agency to choose medical facilities for treatment). https://www.globalsurvivorsfund.org/fileadmin/uploads/gsf/Documents/Resources/Global_Reparation_Studies/GSF_Report_Ukraine_EN_June2022_WEB.pdf.

[9] See, e.g, Clara Sandoval Villalba et al., Study on the Situation and Opportunities of the Right to Reparation for Victims and Survivors of Conflict-Related Sexual and Reproductive Violence in Colombia 41 (Global Survivors Fund, 2022). (highlighting victims’ urgent need to access proper and decent housing, education and work in fair labor conditions. This could be achieved through financial compensation to enable survivors to buy their own home, pay for their studies or start their own business, or through housing and education programs). https://www.globalsurvivorsfund.org/fileadmin/uploads/gsf/Documents/Resources/Global_Reparation_Studies/GSFReportColombia_ENG.pdf.

[10] G.A. Res. 60/147, 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, (Dec. 15, 2005). See also G.A. Res. 60/147, supra note 5.

[11] See REDRESS, Submission to the Committee on the Elimination of Discrimination on the Elimination of Discrimination against Women for consideration of the combined 6th and 7th Report of the Democratic Republic of the Congo, ¶ 24, June 2013, https://redress.org/wp-content/uploads/2017/12/June-Accessto-Justice-for-Survivors-of-secual-voilence.pdf.

[12] See, REDRESS, supra note 2 at 11.(discussing shortcomings of existing international accountability mechanisms. For example, awards from judicial proceedings are often insufficient or unenforced). See also, Hogan Lovells, supra note 4. (“Recent years have seen increased criminal prosecution of perpetrators of conflict-related sexual violence under domestic and universal jurisdiction regimes. However, very few of the survivors, who in many cases have helped build the prosecution cases, have received any form of compensation or reparations awarded through the criminal justice procedures. Similarly, as this case illustrates, survivors of conflict-related sexual violence, can rarely relieve themselves by pursuing compensation and reparations through civil litigation.’”).

[13] G.A. Res. 39/46, supra note 7 (“Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”)

[14] See CAT/C/GC/3, General Comment No. 3 on the implementation of Article 14 by state parties, (Dec. 2012) ¶ 22.

[15] See CAT/C/GC/3 supra note 14.

[16] Mégret supra note 1 at 130.

[17] Mégret supra note 1 at 130

[18] See, e.g., Jeremy Bentham, PRINCIPLES OF PENAL LAW 368 (Russell & Russell Inc. 1962).

[19] Mégret supra note 1 at 130–131.

[20] Office for Victims of Crime supra note 3.

[21] U.K. Criminal Injuries Compensation Scheme.

[22] See, e.g., Brottsskadelag, 2014 (SFS No. 2014:322) (Swed.); Victim of Crime – SARVI (Fr.), https://www.fondsdegarantie.fr/en/victim-of-crime-sarvi/; If my claim is to be considered in this country (It.), https://e-justice.europa.eu/491/EN/if_my_claim_is_to_be_considered_in_this_country?ITALY&member=1; Act on Compensation to Victims of Violent Crime, 1985 (Ger.); State Compensation for Victims of Crime (Den.).

[23] Criminal Injuries Compensation Act, 1979 (C. 13, a. 195) (R.S.Q.) (Can.); Office for Victims of Crime (Can.), https://www.ontario.ca/page/office-victims-crime#:~:text=The%20Victims’%20Justice%20Fund%20(%20VJF,and%20what%20the%20fund%20supports.

[24] See Financial Assistance for Victims of Crime (Austl.)

[25] See Criminal Injuries Compensation Act, 1963 (Act No. 134) (N.Z.), http://www.nzlii.org/nz/legis/hist_act/cica19631963n134348.pdf.

[26] G.A. Res. 30/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, ¶5 (Nov. 19, 1985).

[27] G.A. Res. 36/151, United Nations Voluntary Fund for Victims of Torture, ¶ 1(a) (Dec. 16, 1981).

[28] See supra notes 3, 22–25.

[29] Compensation Scheme for Victims of Overseas Terrorist Attacks (U.K.), https://www.gov.uk/compensation-victim-terrorist-attack; Victim of Terrorism Overseas Payment (Austl.), https://www.disasterassist.gov.au/disaster-arrangements/australian-victim-of-terrorism-overseas-payment#:~:text=The%20Australian%20Victim%20of%20Terrorism,act%E2%80%94both%20past%20and%20future; Victims of State Sponsored Terrorism Fund Website, http://www.usvsst.com/; Compensation For Victims of Terrorism (Fr.), https://www.fondsdegarantie.fr/en/actualites/compensation-for-victims-of-terrorism/; Compensation Scheme for Extremis and Terrorism Crimes (Härteleistungen) (Ger.), https://www.infovictims.de/de_en/victim-rights/damages-and-compensation.

[30] Mégret, supra note 1, at 134–135.

[31] Some funds for victims of terrorism, see supra note 29, cover specific terrorism incidents that occurred outside the state’s territory, but the schemes are limited to nationals and/or residents of that state.

[32] Each of the victims’ funds referred to in this article, see supra notes 3, 22–25, only provide compensation to victims where the crime occurred within that state’s territory.

[33] See supra notes 3, 22–25.

[34] See Anthony Dworkin, Beyond good and evil: Why Europe should bring ISIS foreign fighters home, European Council on Foreign Relations (Oct. 25, 2019), https://ecfr.eu/publication/beyond_good_and_evil_why_europe_should_bring_isis_foreign_fighters_home/.

[35] See Global Justice Center, Daesh’s Gender-Based Crimes against Yazidi Women and Girls Include Genocide (Jul. 4, 2016), https://wordpress-537312-2488108.cloudwaysapps.com/temp-uploads/2016/04/CounterTerrorismTalkingPoints.4.7.2016.pdf.

[36] See Hogan Lovells, supra note 4.

[37] See Hogan Lovells, supra note 4.

[38] See Hogan Lovells, supra note 4.

[39] See Hogan Lovells, supra note 4.

[40] See Hogan Lovells, supra note 4.

[41] See Hogan Lovells, supra note 4 (citing Australia’s obligations under international law). Specifically, Security Council Resolution 2331, which considers victims of ISIL, including the Yazidis and other minority groups, affirms that victims of trafficking in persons in all its forms and of sexual violence committed by terrorist groups should be classified as victims of terrorism “with the purpose of rendering them eligible for official support, recognition and redress available to victims of terrorism, have access to national relief and reparations programmes, contribute to lifting the sociocultural stigma attached to this category of crime and facilitate rehabilitation and reintegration efforts.” S.C. Res. 2331, ¶ 10 (Dec. 20, 2016).

[42] There are existing examples of domestic mechanisms for foreign victims to access reparation in the home state of the perpetrator where the perpetrator is a national of the state or has a close nexus to the state. See, e.g., Justice for Victims of Terrorism Act, S.C. § 2.1 (2012) (Can.) (providing that a victim of terrorism can bring a civil suit in the courts of Canada in circumstances where the action “has a real and substantial connection to Canada”); Council of Europe, Convention on Action against Trafficking in Human Beings arts. 15(4), 31(1), May 16, 2005, C.E.T.S. 197 (providing at Art. 31(1) that “[e]ach Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed . . . (d) by one of its nationals or by a stateless person who has his or her habitual residence in its territory” and, at Art. 15(4), that “[e]ach Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims . . .  for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23 [sanctions]”); Council of Europe, Convention on Preventing and Combating Violence Against Women and Domestic Violence arts. 30(2), 44(1), May 11, 2011, C.E.T.S. 210 (providing at Art. 44(1) that “Parties shall take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed . . . (d.) by one of their nationals” and at Art. 30(2) that “Adequate State compensation shall be awarded to those who have sustained serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources such as the perpetrator, insurance or State-funded health and social provisions”).

[43] See HM Government, Deter, Disrupt and Demonstrate – U.K. sanctions in a contested world: U.K. Sanctions Strategy, 7 (2024), https://assets.publishing.service.gov.uk/media/65d720cd188d770011038890/Deter-disrupt-and-demonstrate-UK-sanctions-in-a-contested-world.pdf;  Gibson Dunn, 2023 Year-End Sanctions and Export Controls Update 3–6 (2024), https://www.gibsondunn.com/wp-content/uploads/2024/02/2023-year-end-sanctions-and-export-controls-update.pdf.

[44] See, e.g., Press Release, U.K. Department for Business and Trade, Office of Trade Sanctions Implementation, Foreign, Commonwealth & Development Office, and Nusrat Ghani MP, New unit to crack down on firms dodging Russian sanctions (Dec. 11, 2023), https://www.gov.uk/government/news/new-unit-to-crack-down-on-firms-dodging-russian-sanctions; Memorandum from Paul Weiss on DOJ Prosecutions Reflect Aggressive Stance Toward Russian Sanctions and Export Control Evasion (Oct. 26, 2022), https://www.paulweiss.com/media/3982685/doj_prosecutions_reflect_aggressive_stance_towards_russian_sanctions_and_export_control_evasion.pdf.

[45] In the United States, monetary penalties from federal deferred prosecution and non-prosecution agreements, including those relating to sanctions violations are deposited into the Crime Victims Fund. These funds are then allocated to various federal, state and Tribal assistance programs, which foreign citizens are not able to access. U.S. Office for Victims of Crime, Crime Victims Fund (Feb. 23, 2024), https://ovc.ojp.gov/about/crime-victims-fund. See also e.g., Bentham, supra note 18.

[46] See Dan-Bunkering, supra note 4.

[47] See Dan-Bunkering, supra note 4.

[48] See Jeff Deutch, Belgium Illegally Shipped 168 Tonnes of Sarin Precursor to Syria, Syrian Archive (Feb. 7, 2019), https://syrianarchive.org/en/investigations/belgium-isopropanol.

[49] See Dan-Bunkering, supra note 4.

[50] Syrian Archive, Court finds Danish company Dan-Bunkering guilty of violating E.U. sanctions with supply of jet fuel to Russian military in Syria, Syrian Archive (Dec. 16, 2021), https://syrianarchive.org/en/investigations/Dan-Bunkering-court-decision (“According to the Court, Dan-Bunkering, a Danish company, must have realised where the jet fuel it was selling would be delivered and who would use it when it arrived. On the whole, this process needlessly excluded the many victims and survivors of Russian airstrikes in Syria – some of whom fled that violence to now live in Denmark under threat of forced return.”).

[51] See generally Tariq Panja, Proceeds of Chelsea Sale Have Yet to Reach Any Ukraine War Victims, N. Y. Times, June 20, 2023, https://www.nytimes.com/2023/06/20/sports/soccer/chelsea-sale-ukraine.html.

[52] See Panja, supra note 51.

[53] REDRESS, Open Letter to the UK Government: Repurposing of £2.5 billion in Chelsea FC Sale for Victims (May 24, 2022), https://redress.org/news/open-letter-to-the-uk-government-on-repurposing-2-5-billion-in-chelsea-fc-sale-for-victims/.

[54] Joumana Seif, It’s Time to Establish a Syria Victims Fund, Just Security (Feb. 19, 2024), https://www.justsecurity.org/92446/its-time-to-establish-a-syria-victims-fund-2/; See also Elise Baker & Nushin Sarkarati, No State Should Profit from Violations in Syria. Instead, Direct Monetary Recovery to Victims, Just Security (Feb. 18, 2024), https://www.justsecurity.org/92480/no-state-should-profit-from-violations-in-syria-instead-direct-monetary-recovery-to-victims/; Celeste Kmiotek & Sameer Saboungi, The US Recovered Over $600 Million in ISIS-Linked Funds – They Should Go to Syrian and Iraqi Victims, Just Security (Feb. 20, 2024), https://www.justsecurity.org/92486/us-recovered-isis-funds-should-go-to-syria-and-iraq-victims/.

[55] See Martin Arnold, BNP Paribas under investigation over role in Rwanda genocide: French public prosecutor opens probe into allegations of complicity in 1994 bloodshed, Financial Times (Sept. 25, 2017), https://www.ft.com/content/25abe656-a1f3-11e7-9e4f-7f5e6a7c98a2; see also The Genocide Network & EuroJust, Prosecution of Sanctions (Restrictive Measures) Violations In National Jurisdictions: A Comparative Analysis 19 (2021), https://www.eurojust.europa.eu/sites/default/files/assets/genocide_network_report_on_prosecution_of_sanctions_restrictive_measures_violations_23_11_2021.pdf.

[56] See Arnold, supra note 55; see also The Genocide Network, supra note 55, at 19.

[57] Press Release, U.S. DOJ Office of Public Affairs, BNP Paribas Sentenced for Conspiring to Violate the International Emergency Economic Powers Act and the Trading with the Enemy Act (May 1, 2015), https://www.justice.gov/opa/pr/bnp-paribas-sentenced-conspiring-violate-international-emergency-economic-powers-act-and; Nate Raymond, BNP Paribas sentenced in $8.9 billion accord over sanctions violations, Reuters (May 1, 2015), https://www.reuters.com/article/idUSKBN0NM41J/.

[58] See Press Release, International Federation for Human Rights (“FIDH”), Judicial Investigation Opened into BNP Paribas’ Role in Atrocities in Sudan (Oct. 11, 2020), https://www.fidh.org/en/issues/international-justice/judicial-investigation-opened-into-bnp-paribas-role-in-atrocities-in; FIDH, Sudanese victims ask French judges to investigate BNP Paribas’ role in atrocities, Business and Human Rights Resource Center (Sept. 26, 2019), https://www.business-humanrights.org/fr/derni%C3%A8res-actualit%C3%A9s/sudanese-victims-ask-french-judges-to-investigate-bnp-paribas-role-in-atrocities/.

[59] See FIDH Press Release, supra note 58; FIDH Business and Human Rights Resource Center, supra note 58.

[60] See FIDH Press Release, supra note 58; FIDH Business and Human Rights Resource Center, supra note 58.

[61] See FIDH Press Release, supra note 58; FIDH Business and Human Rights Resource Center, supra note 58.

[62] See U.S. DOJ Press Release, supra note 57.

[63] See U.S. DOJ Press Release, supra note 57.

[64] See Lutz Oette, BNP Paribas: What compensation for harm suffered?, Sudan Tribune (last accessed Mar. 3, 2024), https://sudantribune.com/article55344/.

[65] Consolidated Appropriations Act of 2016, H.R. 2029, 114th Cong. § 405 (2015–2016), https://www.congress.gov/bill/114th-congress/house-bill/2029; See also Hausfeld, Class action against the chief financier of the Darfur Genocide, Hausfeld, https://www.hausfeld.com/en-gb/what-we-do/current-claims/class-action-against-the-chief-financier-of-the-darfur-genocide/#:~:text=In%20February%202021%2C%20the%20court,%2D%20and%20profiting%20from%20%2D%20genocide; Stephany Caro Mejia, Collective Reparations for Victims of ISIS, Just Security (Aug. 9, 2023), https://www.justsecurity.org/87521/collective-reparations-for-victims-of-isis/.