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2003 | Gillard: Reparation for violations of international humanitarian law

This article briefly outlines the rules of public international law on reparation and how they apply to international humanitarian law. It then reviews the 2003 situation of the law and practice relating to compensation for individual victims.

With reference to the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts and decisions of the Permanent Court of International Justice, the author states that it is a general principle of international law that a State’s wrongful act, i.e. breach of its obligation under international law, gives rise to its obligation to make reparation in the form of restitution, compensation or satisfaction. This general principle thus also applies to a State violating its obligations under International Humanitarian Law (IHL) and is, moreover, explicitly spelled out in Article 3 of the Hague Convention IV and Article 91 of Additional Protocol I, entailing the obligation to pay compensation. However, these two IHL instruments are confined to international armed conflicts, war between two States. The IHL parts applicable to non-international armed conflicts, to which organized armed groups are per definition a party- do not entail provisions on compensation or any other form of reparation. Although organized armed groups are bound by IHL, it is questionable whether they have a responsibility to make reparation for the damage they have inflicted on their victims. In 2003, such responsibility was limited to individual criminal responsibility.

While IHL instruments address the responsibility to compensate, they do not specify who the recipients of such compensation should be. This raises the question whether individuals, in addition to States, are entitled to claim reparations for violations of IHL. Yes, says the author, however the bottleneck is the individual’s ability to enforce this right. At a national level, sovereign immunity may protect States from being sued. Victims may also be denied the necessary legal standing to pursue their reparation claims directly before national courts due to the fact that the relevant provisions of IHL require would first require implementation in domestic legislation before becoming judicially enforceable. When asserting and enforcing their rights before international fora, victims of IHL have been more successful. Particularly mixed claims commissions and quasi-judicial bodies enable victims to file their claims directly, participate to varying degrees in the claims review process and receive compensation directly.

The work then turns to the question whether individuals – apart from States - have an obligation to make reparation to victims whose rights under IHL they have infringed. The author argues that this obligation can indeed be inferred from various provisions of the four Geneva Conventions and Additional Protocol I, establishing a system of individual criminal responsibility for persons suspected of war crimes, predominantly to be prosecuted by national courts. The individuals’ duty to make reparation has been embedded in the statute of the International Criminal Court: victims can lodge requests for compensation directly and the Court has been vested with the power to award reparation.

The author concludes that despite these promising steps forward on the international plane, the majority of victims of violations of IHL have not in fact been awarded compensation, and thus remain without redress. Given that no IHL statute to date has provided for the establishment of a specific mechanism enabling victims of violations to obtain reparation, it is likely reparation to individual victims of violations of IHL will continue to be made in an ad hoc manner.