Carla Ferstman 25 IV. The Standards of Reparation Reinterpreted from a Gendered Lens 1. Restitution Reinterpreted: The need for transformative reparations Restitution comprises measures aimed, as far as possible, at restoring the situation that existed prior to the violation. In the context of gender-based violence, this might include the release of victims from detention and dropping criminal charges against such persons. This might be appli­ cable to persons who claim that they were raped. In some societies, if a claim of rape cannot be substantiated, the woman or a man filing the complaint may be prosecuted either for adultery or for wrongful accusation of adultery.30 This dis-incentivises rape victims from lodging complaints and fosters impunity for sexual offences. For trafficking victims in particular, restitution measures might include, in addition to releasing trafficking victims from State detention or confinement by non-State actor traffickers, the return of travel and identity documents, recognition of citizenship, safe and voluntary repatriation to the individual’s country of origin, and help to facilitate the indi­ vidual’s integration.31 But, it has increasingly been recognised that where a situation of discrimination contributed to the violations in the first place, reparations should not seek to put the victim back to that situa­ tion of disadvantage; reparations should be designed to eliminate the pre-existing disadvantage. The notion of transformative reparations was articulated in the Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation,32 by the Special Rapporteur on Violence Against Women,33 and has since been taken up in the U.N. Secretary-General’s 2014 guidance note on reparations for conflict-related sexual violence,34 in jurisprudence,35 and in the Committee against Torture’s General Comment no 3.36 The Inter-American Court of Human Rights has recognised that a situ­ ation of discrimination which contributed to the violations could only be repaired by reparations “designed to change this situation, so that their effect is not only of restitution, but also of rectifica­ tion. In this regard, re-establishment of the same structural context of violence and discrimination is not acceptable.”37 The UN Special Rapporteur on trafficking in persons, especially women and children, Joy Ezeilo, has also recognised that trafficking victims should be provided with “tempo­ rary or permanent residence status as a form of remedy where a safe return to the country of origin cannot be guaranteed, may place them at risk of persecution or further human rights violations, or is otherwise not in their best interests,” as a form of transformative reparation.38 Similarly, restor­ ing the safety and security of domestic violence victims has been recognised as crucial. Victims of domestic violence will require restraining orders for those who perpetrated violence against them, and access to shelters for abused women.39 See reDress & KChreD , tim e for Change : reform ing suDan’s legislation on raP e anD sexual violenCe 32-36 (2008). 31 A/66/283, supra note 16, at ¶ 14. 32 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation. 33 A/HRC/14/22, supra note 11. 34 uniteD nations seCretary -general, guiDanCe note on reP arations for ConfliCt-relateD violenCe (2014), http://www.ohchr.org/Documents/Issues/Women/WRGS/PeaceAndSecurity/ReparationsForCRSV.pdf 35 Cotton Field supra note 4, at ¶ 450. 36 Id. at ¶ 8. 37 Id. 38 A/66/283, supra note 16, at Annex (outlining, in principle 6(b), draft basic principles on right to an effective remedy for trafficked persons) & ¶ 16. 39 Committee against Torture, Concluding Observations on the Third Periodic Report of Kuwait, U.N. Doc. CAT/C/KWT/3, at ¶ 28(g) (Aug. 8-9, 2016). 30