Abstract
This article examines how transitional justice frameworks can inform climate reparations debates. Drawing on lessons from international criminal and human rights courts, as well as non-judicial reparation programs, it highlights the importance of victim participation, multifaceted redress, and credible guarantees of non-repetition in designing effective reparative mechanisms for climate harms. The analysis looks beyond State-to-State obligations to consider reparations owed to individuals, communities and ecosystems, including through ecocentric approaches and the potential criminalisation of ecocide. It argues that, while transitional justice cannot resolve the climate crisis, it offers guidance for designing reparative mechanisms that are participatory, multi-layered and credible.
Keywords
The pursuit of climate justice is a form of climate action that seeks to address the imbalance between those most responsible for climate-harms and those most affected by them. 1 Increasingly, this pursuit is understood as encompassing reparations, 2 with individuals, communities and States exploring diverse pathways to seek reparation for climate harms. One such pathway is litigation; plaintiffs worldwide are using class actions, human rights frameworks and international law to seek to define and enforce the responsibilities of States and other actors with regards to the loss and damage experienced in the climate crisis. 3 Recent high-profile examples include the International Court of Justice (ICJ) 4 and Inter-American Court of Human Rights (IACtHR) 5 advisory opinions on the obligation of States with respect to climate change. The former affirmed that violations of States’ climate responsibilities could trigger ‘a panoply of legal consequences’ including full reparation. 6 The latter emphasised States’ obligations to provide full reparations for breaches of human rights law and to create effective mechanisms that enable victims to access reparation for climate harms. 7
These opinions have direct implications for Australia: the ICJ’s advisory opinion puts pressure on the Commonwealth government to increase its ambitions for emission reduction and raises the prospect of future climate reparation claims from developing countries. 8 Meanwhile, the IACtHR’s recognition of the right to a healthy environment as a jus cogens norm (ie binding on all States without permissible derogation) reinforces States’ obligations to protect this right, including through prohibitions and reparation for breaches. 9 The opinions also contribute to growing evidence that calls for climate reparation will increase in volume and urgency in future.
The momentum behind the climate reparations movement raises legal and practical questions regarding implementation. How are climate reparations to be designed and delivered, and what kinds of principles might inform the delivery of reparations to thousands, if not millions of beneficiaries? While the potential scale of climate harm is arguably unprecedented, the climate crisis is not the first time difficult questions regarding the delivery of justice for wide-ranging harms have been raised. The climate reparations debate can be usefully informed by lessons from the field of ‘transitional justice’, defined as the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past violations and abuses to ensure accountability, serve justice, and achieve reconciliation.
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Comprising domestic and international criminal prosecutions, human rights claims, non-judicial reparation awards and a range of other forms of reparative justice, transitional justice offers established frameworks and practices for addressing large-scale harms in politically sensitive contexts. 11
Recognising these similarities, transitional justice scholars have begun to explore what the field might offer the climate justice debate in terms of lessons learnt, 12 and how existing mechanisms might be adapted to respond to the harms caused by the climate crisis. 13 There are obvious limitations to such an exercise. Emerging from post-conflict and post-authoritarian contexts, transitional justice has been critiqued for assuming a temporally bounded period of violence, easily identifiable perpetrators and human-centred notions of victimhood, all of which sit uneasily with the diffuse, ongoing and ecological nature of the climate crisis. 14
Nonetheless, as transitional justice scholar Jasmina Brankovic has noted, the transitional justice field contains over three decades’ worth of experience in addressing large-scale harm that might help the international community think creatively about how to approach climate justice. 15 These experiences have been reflected on in a rich literature, including a substantial amount that engages with the question of reparation and victims’ rights. 16 In the narrower field of international criminal law, there is a parallel body of work that seeks to reconfigure atrocity crimes to respond to environmental and climate harms, both through existing core crimes (war crimes, crimes against humanity, genocide) and through the creation of new environmental offences such as ecocide. 17
In this article, I seek to contribute to this growing body of scholarship. I focus on two questions: first, how transitional justice practice and scholarship might help conceptualise victims’ rights, and second, how this scholarship and practice might inform the design and pursuit of pathways to reparation. I do not seek to propose a comprehensive theory of climate reparations, nor to resolve the highly contested political questions of responsibility which animate that debate. Rather, my intervention is more modest and practical: to distil a small set of operational lessons from transitional justice practice that are directly relevant to the design of emerging climate reparations mechanisms and might be taken forward by others in practice. I thereby seek to shift attention from whether reparations are justified to how reparative mechanisms might be structured, legitimised and experienced by those most affected, particularly in contexts of scale, political contestation and uncertainty.
Victims’ rights and redress
Reparation debates have often centred around what States might owe each other. However, the IACtHR’s opinion is a powerful reminder that the victims of the climate crisis are the living inhabitants of those (and other) States, and that reparation might therefore be owed to affected individuals, communities and ecosystems. 18 Although the ICJ’s grounding in international law orients its advisory opinion around inter-State obligations, a more inclusive understanding of victimhood is also evident in, for example, the separate opinion drafted by Judge Bhandari. He suggests that attention ought to be given to the specific forms of reparation that might be owed to, among others, Indigenous peoples, communities and habitats. 19
Building on this recognition, this section explores how the field of transitional justice has developed an understanding of victims’ rights insofar as it might apply to a climate reparation context, focusing on participatory and procedural rights, the importance of multifaceted repair and the expansion of victimhood beyond the human.
Participatory rights
A fundamental pillar of transitional justice is the recognition and protection of victims’ rights. The field is informed by the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation, 20 which outlines principles such as the right to truth, justice and reparations. Beyond these substantive outcomes, the Basic Principles recognise procedural rights, including access to remedies and assistance in seeking access to justice. 21 Transitional justice practice and scholarship have expanded on these procedural aspects, emphasising the importance of ensuring that those most affected by harm actively participate in shaping justice processes and outcomes. 22 Research on judicial mechanisms that have facilitated participation, such as the Extraordinary Chambers in the Courts of Cambodia (ECCC), suggest that victim involvement can contribute to a stronger sense of justice and acknowledgment. 23
When it comes to designing and delivering reparations, participation has further practical significance. A lack of victims’ involvement can result in measures that only superficially or inadequately address victims’ harms, leading to discontent or even feelings of revictimisation. 24 In contrast, successful reparations programmes tend to provide a central role for victims in their design, development and delivery. 25 Furthermore, delivering a sense of ‘procedural justice’ through participation can enhance the acceptance of outcomes, which may be important if (as is likely given the scale of climate harms) reparation claims are perceived as only an incomplete response to the harm experienced. 26 Taken together, victim participation can be understood as a pathway towards ensuring reparations are seen as legitimate, 27 and that victims’ voices are heard.
These are arguably important lessons for climate justice debates, which have often progressed on the assumption that States can adequately represent the wishes of victimised communities. This assumption overlooks the reality that many of those communities – such as climate refugees, women, children, Indigenous peoples and minorities within States – have been historically excluded from environmental decision making. 28 In the Australian context, for example, the assumption that the State represents the interests of its inhabitants risks obscuring the ongoing dispossession and marginalisation of First Nations peoples, as well as their historic and contemporary struggles to protect their peoples, culture and Country from climate harms. 29 Victim participation offers a counter to this risk, offering symbolic recognition of communities’ agency and legal entitlement to repair, 30 as well as contributing to particular outcomes. 31 There are multiple examples of reparation programmes that have designed participation in ways that are sensitive to the specific marginalisation experienced by certain groups (for example, by selecting representatives from diverse groups for the purposes of participating in reparation design). 32 These can be drawn upon to inform future practice.
In the climate crisis context, victim participation raises inevitable challenges regarding scale: how to incorporate the perspective of thousands (or even millions) of individuals? Related challenges in transitional justice contexts have led to a notable shift towards collective participation, enabling groups of victims to speak through a shared representative. 33 Transitional justice practice highlights the importance of civil society organisations in this regard, emphasising the important role they can play in assisting victims in articulating their claims, pushing for reparations, and advocating for their rights. 34
Yet collective models inevitably mean compromise, diluting the individual sense of agency to respond to the reality of mass harm. They also introduce questions of victim hierarchy, requiring sensitivity to the power dynamics that can exist within victimised populations as well as between victims and the State. 35 Navigating these tensions may require approaches that draw from restorative justice models, which are more oriented towards multiple perspectives. 36 Indeed, the application of restorative justice to future Australian climate reparation claims has been explored in theory. In an experimental reparations award drafted as part of the ‘judgments for the Anthropocene’ project, Zoe Nay and Julia Dehm drew on previous transitional justice mechanisms to establish a ‘democratic, deliberative, and participatory process that foregrounds the voices and perspective of those most impacted by already existing and future impacts of climate change’. 37
Multilayered redress
The UN Basic Principles and transitional justice practice establish that victims are entitled to a range of substantive justice outcomes, including restitution, compensation, rehabilitation, guarantees of non-repetition and measures of satisfaction (eg apologies and memorials). 38 As acknowledged in the IACtHR Advisory Opinion, these rights extend to victims of climate-related human rights violations. 39
Transitional justice practice demonstrates that harm must be understood as not only material but also social, cultural and psychological. 40 As such, multilayered forms of reparation are required, with the most effective responses to harm combining symbolic recognition with more practical forms of redress. 41 The IACtHR’s reparations jurisprudence has been ‘trailblazing’ in this regard. 42 For example, it has previously ordered States to restore Indigenous lands and implement community development initiatives in response to conflict-related environmental and human rights abuses. 43 At the ECCC in Cambodia, reparations for the crimes of the Khmer Rouge regime comprised various measures of memorialisation alongside educational initiatives designed to guarantee non-repetition. 44 In Chile, reparations for the violence of the Pinochet regime included museums alongside access to health care and pensions. 45
In the climate reparations context, a multifaceted approach to reparations might encompass official apologies from high-emission countries and companies, public memorials for climate-displaced communities, and/or global truth commissions documenting the responsibility of industrialised nations and companies for climate change. Such forms of acknowledgment, apology and memorialisation may provide psychological benefits to affected populations, while contributing to a broader societal reckoning with injustices. 46
Transitional justice theory and practice have also underscored the importance of guarantees of non-repetition, emphasising that reparations should ideally be both backward and forward facing. 47 In many transitional justice contexts, legal and institutional reforms such as constitutional amendments, human rights protections and policy changes have been enacted to prevent the recurrence of violence and injustice. 48 While neither offered detailed guidance regarding what guarantees of non-repetition might entail, the advisory opinions of both the ICJ 49 and IACtHR 50 highlight guarantees of non-recurrence’s particular importance in the climate context, with the latter stating that guarantees of non-repetition should be ‘addressed at reducing vulnerability, monitoring compliance with existing obligations, and enhancing the resilience of natural and human systems within the framework of sustainable development.’ 51 Examples might be stronger environmental regulations, shifts towards renewable energy, protection of Indigenous land rights and the dismantling of extractivist economic systems that perpetuate climate harm. 52 Such initiatives would require sustained, forward-looking commitments, thereby blurring the boundaries between reparation and reform.
As such, guarantees of non-repetition are among the more politically controversial reparative measures and are likely to face the most sustained resistance. The term ‘non-repetition’ may not translate neatly into climate contexts, as the level of transformation needed to mitigate the climate crisis’ impacts would far exceed any that have gone before. Indeed, the very notion of ‘guaranteeing’ non-repetition is therefore complicated by the reality that many climate harms are now unavoidable, and that some ecological tipping points have most likely already been passed. 53 In this context, guarantees can only ever be partial and prospective. Without confronting the fact that emissions continue to rise and many harms are already locked in, guarantees of non-repetition might be interpreted as empty promises rather than credible components of justice. Yet, the absence of forward-looking measures risks any reparation for past harms being perceived as attempts to buy-off victims while failing to address the systemic causes of the climate crisis. 54
Longer-term structural goals must be balanced with the need for time-sensitive and immediate reparations. In many transitional justice processes, delays in reparations have left victims waiting for decades, eroding trust in justice institutions. 55 Climate reparations face similar pitfalls, aggravated by the ‘slow violence’ of climate injustice and the practical challenges of determining liability and appropriate redress. 56 Urgent needs, such as relocation assistance for climate refugees, emergency funding for disaster-affected communities and ecosystem rehabilitation, call for a swift response, while broader policy reforms and accountability mechanisms require time.
Determinations as to how funds are to be allocated in the face of these wide-ranging challenges will require a focus on transparency and equitability if they are to be perceived as legitimate. Funding mechanisms such as the Fund for Responding to Loss and Damage could draw on the successes and failures of transitional justice reparations, 57 with previous practice suggesting that a lack of a strategy concerning how reparations are to be funded, or an over-reliance on voluntary contributions, can be fatal to any attempt at redress. 58 Royal Commissions, long familiar in Australia, offer potential domestic pathways here: the Royal Commission into National Natural Disaster Arrangements, for instance, combined official recognition of harm with recommendations for systemic reform. 59 Yet these processes remain fragmented and reactive, illustrating the importance of embedding broader, forward-looking reparative measures in domestic climate responses.
These proposals inevitably confront political resistance. Climate reparations have been resisted precisely because they challenge entrenched economic interests and unsettle narratives of responsibility grounded in sovereignty and voluntarism. Yet transitional justice experiences suggest that even fragmented or symbolic measures can alter institutional practices and normative horizons, particularly when driven by sustained civil society mobilisation. Thus, they offer roadmaps for an incremental theory of change in which litigation, advisory opinions, participatory processes and partial reparative measures cumulatively reshape expectations, expand the legal imagination and create footholds for affected communities to press claims over time.
Victims’ rights beyond the human
More recent transitional justice scholarship and practice highlight pathways for thinking about how victimhood might be conceptualised to better recognise harms against the natural world. The Colombian Jurisdicción Especial para la Paz (JEP) recognition of Indigenous and Black communities’ territories as victims, and related acknowledgment that landscapes, rivers and ecosystems can suffer harm and deserve reparations, sets a groundbreaking precedent for viewing the environment as more than just a backdrop for human suffering. 60 JEP’s recognition aligns with a growing ecocentric legal turn that acknowledges the interdependent relationships between human and other-than-human entities. 61
This turn is supported by the IACtHR’s climate advisory opinion, which recognises Nature as a subject of rights, and underscores that States must not only refrain from acting in a way that causes significant environmental damage, but have the positive obligation to adopt measures to guarantee the protection, restoration and regeneration of ecosystems.
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Such an approach challenges conventional legal systems that view environmental damage only through the lens of human economic loss or resource exploitation. 63 While the ICJ’s advisory opinion does not go so far, 64 Bhūmi Devi (Mother Earth) is recognised as a primary subject of concern in Judge Bhandari’s separate opinion, and the main opinion notes the long-standing recognition of the interdependence between human rights and the environment. 65
The recognition of ecosystems as victims finds some resonance in Australia. The Victorian government’s recognition of the Wilip-gin Birrarung murron (Yarra River) as a living entity with rights, an approach developed in partnership with the Wurundjeri Woi-wurrung people, demonstrates the potential for ecocentric legal frameworks within settler colonial systems. 66 Indigenous worldviews across the continent, which understand Country as kin and recognise rivers, land and other-than-human beings as integral to community identity, 67 provide a foundation for extending reparative justice beyond the human. These developments suggest that Australian law is already tentatively experimenting with the kinds of ecocentric shifts envisaged in international transitional justice debates.
Future climate litigation could benefit from the growing recognition of rights of nature by advocating for reparative frameworks that treat ecosystems as rights-bearing entities. 68 For instance, the Colombian JEP’s practice reinforces the argument that natural entities can have both material and cultural significance, particularly for communities whose livelihoods and spiritual practices are deeply tied to the land. This model could be adapted to climate justice mechanisms by ensuring that reparations include ecological restoration, legal protections for affected ecosystems and community-led conservation efforts.
Having reviewed the potential lessons and examples that might be drawn from transitional justice to inform future climate reparation mechanisms, the following section takes a closer look at the specific role that might be played by international criminal law in promoting climate reparations. To do so, it considers the campaign to criminalise ecocide, and the pathways that this might open towards victim recognition and individual liability for climate reparation.
Liability for reparations through a crime of ecocide
The campaign to criminalise ecocide as an international crime at the International Criminal Court (ICC) has some commonalities with the push for climate reparation, 69 with both seeking to hold powerful actors accountable for the large-scale harms caused by unsustainable natural resource extraction. However, in contrast to the frequent focus on State and corporate responsibility in climate reparation discussions, ecocide debates emphasise the role of (international) criminal law in holding individuals, including corporate executives, government officials and military leaders, criminally responsible for the kinds of large-scale environmental harms that contribute to the climate crisis. 70
Building on the above focus on victims’ rights, it is worth considering what such a move would offer in terms of procedural and reparative justice. The ICC features a unique victim-participation model, enabling victims to present their views and concerns when their personal interests are affected. 71 Victims can access common legal representatives, submit evidence and question witnesses and, crucially, request reparations such as restitution, compensation and rehabilitation. 72 Should ecocide be introduced as a new crime, this model would offer a potential pathway for victims of climate injustice, such as Indigenous groups and frontline communities, to have their voices heard 73 and to access court-ordered reparations. 74 Convicted individuals (the ICC only has jurisdiction over natural persons) could be ordered to pay financial compensation to impacted communities, fund ecological rehabilitation projects and/or contribute to community-led adaptation efforts. 75 Reparations at the ICC are facilitated by a Trust Fund for Victims, which already has some limited experience of facilitating ‘ecosensitive’ forms of reparation, such as ecologically sustainable economic rehabilitation projects. 76 The Trust Fund also facilitates forms of victim assistance in the absence of a judicial ruling; 77 this is funded by voluntary contributions and if appropriately supported, could offer assistance to victims dealing with acute impacts of ecocide prior to a conviction. 78
The implications of ecocide’s criminalisation have the potential to extend beyond the possibility of a small number of prosecutions at the ICC. 79 The ratification of an ecocide amendment to the ICC’s Statute would likely be followed by the introduction of ecocide offences in ratifying States’ domestic criminal codes, 80 creating the possibility of prosecutions and associated reparation orders in domestic as well as international contexts. 81 Indeed, while there are a range of barriers to ecocide’s criminalisation as an international crime, a small but growing number of States have made moves in recent years to introduce domestic ecocide offences. 82
Pursuing an individual criminal liability approach would mark a significant shift from the current climate finance approach, which is often dependent on political will rather than enforceable legal rulings. Such a framework has salience for Australia, both as a State Party to the ICC’s Rome Statute 83 and as one of the world’s largest exporters of coal and gas, where corporate and political actors have long resisted calls for structural reform. 84 However, there are a range of limitations to ecocide’s potential impact. Its application would be limited by the general principle of non-retroactivity, enabling past polluters to escape criminal liability. 85 Amending the ICC’s Statute to include ecocide would likely be a slow and politically contentious process. 86 States which chose not to ratify the amendment would not be bound by it, further limiting its application. Even if ratified, investigating and prosecuting a crime of ecocide would present novel challenges, particularly in terms of identifying individual perpetrators and proving appropriate levels of gravity and intent. 87 In the case of a conviction, actually enforcing reparations against powerful corporate actors or State officials could face barriers; seizing assets has been a consistent challenge for the ICC. 88 While the Trust Fund can also receive voluntary contributions from States (Australia has previously been a significant donor), 89 it has been consistently under-resourced in practice.
In sum, the turn to ecocide as an international crime highlights both the promise and the limits of criminal law as a vehicle for climate accountability and reparations. While its recognition at the ICC and in domestic legal systems could offer victims new avenues for participation, recognition and reparations, its effectiveness will depend on overcoming political resistance, definitional challenges and enforcement barriers. 90 Even so, the very prospect of individual criminal liability for ecocide reframes climate harm as a matter of justice rather than charity and signals a potential shift towards more enforceable and victim-centred forms of redress.
Conclusion
This article has argued that the entrenchment of victims’ rights within transitional justice offers partial lessons for addressing climate injustice – from ensuring meaningful participation and multilayered reparations to recognising other-than-human victims and pursuing accountability through emerging frameworks such as ecocide. While it has focused on what can be gained from engagement with this practice and scholarship, the application of transitional justice to the climate crisis is inevitably imperfect. Frameworks developed to address past periods of acute violence cannot fully encompass the ongoing, planetary scale of climate harm, nor the diffuse nature of responsibility.
The language of non-repetition in particular has limits, implying a future that may no longer be attainable in a destabilised climate. Yet even in a context where full non-recurrence is no longer achievable, guarantees of non-repetition remain worth pursuing because they articulate minimum standards of responsible conduct, orient legal and political institutions towards harm reduction rather than resignation, and provide affected communities with a forward-looking claim to structural change rather than compensation alone. What I hope to have shown is that transitional justice provides practical insights into how to deliver reparations at scale, as well as a conceptual lens that insists those most affected by harm must be central to shaping remedies and that responses to climate harm must be as transparent and transformative as possible.
For Australia, these insights have both international and domestic resonance. In the Pacific, States such as Vanuatu have led global calls for advisory opinions and the recognition of ecocide, placing reparative justice questions directly on Australia’s doorstep and testing the credibility of its climate diplomacy. Domestically, the increasing severity of bushfires and floods has heightened communities’ demands for acknowledgment, accountability and structural guarantees against recurrence. These intersect with, and intensify, the long-standing claims of Aboriginal and Torres Strait Islander peoples to land restitution, truth-telling and recognition of ongoing dispossession and harm to Country. Australia’s position as a high-emitting State, a regional power in the Pacific, and an early site of climate-related human rights findings make it a particularly salient testing ground for the practical limits of climate reparations discourse.
Australia’s ability to respond credibly to regional and global calls for climate justice will therefore depend on its willingness to confront its own reparative responsibilities. To neglect these obligations risks perpetuating cycles of exclusion and vulnerability; to embrace them opens the possibility of building a more legitimate and inclusive response – one that recognises historical responsibility, centres both human and ecological victims, and seeks to repair past harm in the pursuit of a more just future.
Footnotes
Acknowledgment
For their feedback during this article’s early development, thank you to the organisers and participants at the April 2025 ‘Climate Change and Reparations’ conference at the Université de Montréal and the May 2025 ‘Climate Reparations in Australia’ workshop at the University of Melbourne. For their comments on the earlier draft, thank you to Erin Fitz-Henry and Julia Dehm. And for facilitating the publication of a related blog post on the Climate Law blog at Colombia Law School, thank you to Camille Martini and his collaborators.
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
