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2002 | Kleffner: Improving Compliance with International Humanitarian Law through the Establishment of an Individual Complaints Procedure - 15 Leiden Journal of International Law 2002 pp. 237–250

This article is a shortened version of J.K. Kleffner & L. Zegveld, Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law, 3 Yearbook of International Humanitarian Law 384–401 (2000).

Whereas International Humanitarian Law (IHL) and Human Rights Law (HRL) run parallel in their concern for the protection of individual and human dignity, they deviate on the point of venues competent to supervise compliance. Where IHL lacks a judicial or quasi-judicial body competent to hear claims of victims of violations of IHL, HRL offers a number of complaints procedures and mechanisms for individuals whose human rights have been breached. In an attempt to fill this void, human rights bodies have applied IHL when hearing individual complaints.

The author argues that there are several reasons why human rights bodies cannot effectively repair the lack of supervision of compliance with IHL. Firstly, human rights bodies can use IHL as a means of interpretation. However, this does not go far enough if the aim is to improve the supervision of compliance with humanitarian law. Using humanitarian law as a means of interpretation of human rights law is only an indirect and ultimately inadequate way to achieve this aim: questions arising specifically out of the context of an armed conflict can only be properly decided by reference to the law applicable in armed conflict, and the answers cannot be deduced from the terms of human rights treaties. Another problem with the implementation of humanitarian law through human rights bodies is the fact that their scarce practice suggests that they only consider alleged violations of states. Consequently,violations of humanitarian law by other parties to conflicts, most notably armed opposition groups, are excluded from scrutiny.

Given that human rights bodies are thus ill-equipped platforms for victims of IHL violations, the authors suggest concluding a third Additional Protocol to the Geneva Conventions establishing a Humanitarian Law Committee (HLC) with jurisdiction to apply the four Geneva Conventions, Additional Protocols I and II and customary law. This is particularly important in relation to IHL applicable during non-international armed conflicts. The protection of individuals during non-international armed conflicts codified in Common Article 3 and Additional Protocol II is rudimentary while rules on international armed conflicts have been expanded over the years to apply as customary law in non-international armed conflicts. Given that today’s conflicts are predominantly of a non-international character, it is vital to ensure that those norms are also within the competence of the supervisory body which deals with individual complaints.

The authors advance that a legal basis for an individual right of claim could be derived either from those provisions of IHL that implicitly or explicitly confer rights on individuals or presuppose the existence of such rights. Or alternatively, that any rule of IHL could trigger the HLC’s competence to examine any alleged violation of IHL. Meanwhile, at the time this report was written, and up until the time of posting this summary (June 2018) national courts have turned down individual claims for compensation based directly on IHL, arguing that such claims should instead be based on domestic laws put in place to enforce IHL provisions.

The author considers that the HLC should be competent to order restorative measures, while acknowledging that large-scale IHL violations may well generate a quantity of claims that would overwhelm the body. He points out too that awarding monetary compensation to large numbers of victims could also result in a State’s or non-state armed group’s bankruptcy, undermining their capacity to provide reparatory measures for victims who do not address themselves to the HLC. So, in order to avoid ‘illusory reparatory measures’ the article emphasises the importance of other forms of reparation such as restitution, rehabilitation and satisfaction.