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2012 | Legal Foundations for “Making Amends” to Civilians Harmed by Armed Conflict, by A. Childers & A. Lamut, International Human Rights Clinic, Harvard Law School 2012

The increasing international concern for civilians harmed by armed conflict is reflected in multiple international legal standards such as the four Geneva Conventions and its Optional Protocols, the Rome Statute and the emerging doctrine on the Responsibility to Protect. Most of these international legal developments deal with civilian harm caused by unlawful activities by warring parties whereas civilian victims of lawful harm (such as unintentionally killed civilians during an air strike on a legitimate military target) fall through the legal cracks. The principle of Making Amends is based on the idea that victims of lawfully caused harm should receive recognition of and assistance for their suffering for reasons of dignity and humanity. Making amends should have no bearing on a warring party’s legal responsibility for the harm it caused and neither should it prevent individuals from pursuing legal remedies for violations of international or domestic law.

Existing international law does not mandate specifically that warring parties make amends to victims of lawful harm. However, in this paper the authors claim that there exist multiple grounds for doing so: morality calls for warring parties to recognize and ease the suffering they cause, recognition and assistance often mean more to victims if they come from the injuring party and finally, and most relevant to this paper, international legal standards and state practice increasingly look to warring parties - or the state in whose territory victims live - to bear primary responsibility to provide relief for the harm they caused during armed conflict. To that end, the work examines international treaties, resolutions and guidelines adopted by the U.N. General Assembly, principles from the International Law Commission, and documents from international human rights bodies and criminal courts. These sources are germane to the discussion of amends for lawful harm because they show that civilian victims are entitled to be treated with dignity and humanity. Specifically Human Rights Law and International Humanitarian Law stress the importance of protecting and preserving the dignity and humanity of victims, particularly during armed conflict.

The article champions that victims should be defined broadly as individuals, families, and communities and that similarly, they should receive amends for a broad range of harms, such as death, physical injury, loss or damage to property, psychological, emotional, social, and economic harms. In the same vein, making amends may take many forms: from monetary payments, reconstruction projects, livelihood assistance programs, to non-monetary dignifying gestures such as apologies. By referring to multiple conventions, principles, commissions and programs, the authors show how these issues are dealt with in practice.