2017 | Designing Amends for Lawful Civilian Casualties, by L. Wexler and J.K. Robbennolt, Yale Journal of International Law, Vol. 42 (1) 2017
Historically, reparations have been available only to victims of unlawful harm. Harm that results from lawful conduct does not give rise to a claim for reparations. Exploring this issue through the lens of International Humanitarian Law (IHL), the authors observe that this body of law currently contains no requirement for compensation, responsibility-taking, or apologies for those civilians who are affected by lawful combat activities. While recent developments, including the emergence of mass claims commissions and courts providing access for individuals to seek reparations, strengthen the position of civilian victims of unlawful harm seeking redress, victims of lawful harm do not directly benefit from this expansion.
Civilian victims of United States (US) drone strikes conducted during armed conflict, so far have had no legal venue under US domestic law to seek reparations for their harm suffered. Nor would a family be able to pursue a tort claim in domestic courts against the state in which the civilian casualty occurred, as states have sovereign immunity in foreign courts. American courts have often dismissed reparations cases on justiciability grounds. Moreover, attempts to force the US government to provide information on individual drone strikes have been largely unavailing. Instead, the US employs ex gratia or condolence payments for drone victims of armed conflict. But these voluntary payments are not an admission of fault nor an acknowledgement of any moral or legal responsibility for someone's death, injury or damage.
The authors note that amends for lawful harm do not stem from legal liability but instead from the needs of affected civilians and the needs of the military and the soldiers involved in the relevant incidents. They advocate for an amends mechanisms that would enhance satisfaction of IHL's humanitarian purposes. States should voluntarily adopt domestic amends programs that recognize the humanity of the affected civilians and their families as also of those who have caused the injury – at the levels of state, military group and individual combattants. Such an amends program should provide more than a monetary condolence payment; it ought to accommodate victims' desire for acknowledgement of the harm inflicted, cultural values, explanation about what happened, promises of forbearance, accountability and apologies, sand ystematic post-strike review or investigation of all incidents involving civilian casualties, the outcome of which should, to the extent possible, be communicated back to the victims and their communities.
The authors conclude that much research still needs to be done in order to fully understand the needs for and effects of making amends in the context of armed conflict. For example, there is little existing research on how individuals in affected countries react to current efforts to make amends through condolence payments or how they would react to a more relationship-oriented amends process.
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