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2003 | Zegveld: Remedies for victims of violations of international humanitarian law

This article examines whether victims of war have the right to a remedy under International Humanitarian Law (IHL) and the extent to which this right can be enforced, if at all. Although IHL has been put in place to protect civilians from the dangers of war, it is silent on where to turn for redress when protection fails. This contrasts with other bodies of international law, particularly international criminal law and human rights law, which do contain remedy solutions and enforcement mechanisms for individuals suffering injury caused by a State’s unlawful conduct. To fill this gap, the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Violations of International Human Rights and Humanitarian Law (“UN Principles”) were adopted in the year 2005. These Principles, that were followed and affirmed by several other initiatives, recognized the interests of victims of IHL violations.

At the outset, the article argues that multiple IHL provisions create or presuppose primary substantive individual rights, such as the right not to be killed wilfully. A person whose primary substantive rights under IHL are breached, is defined as a victim of IHL. The right to a remedy is a secondary right, deriving from a breached, primary substantive right. With reference to specific IHL provisions, the author purports that IHL provides victims with the right to claim reparation before a national or international court.

Subsequently, the work addresses the difficulties victims of IHL face with when trying to enforce their right to a remedy before a domestic court. The author first explains that IHL can have either direct or indirect effect in a State’s national legislative system. In the former situation, an individual may invoke an IHL provision directly before national courts, whereas in the latter situation IHL norms must be incorporated into domestic law first through adoption of legislation, before a victim can claim a breach of his/her rights under domestic law. However, the author shows that the most common situation worldwide is that neither course is adopted, leading to a situation wherein victims of IHL cannot enforce their right to a remedy at the national level. Moreover, by 2003 national courts had regularly rejected individual claims for compensation for violations of IHL rights, reasoning that most of the IHL rules apply to States only, and are not applicable in litigation between injured individuals and the State. Against this background, the work recalls the importance of the UN Principles that may provide an incentive for adapting domestic legislation stipulating that States must afford appropriate remedies to victims of violations of IHL, including access to justice.

On the international level, victims of IHL have no general international mechanism to turn to when asserting their rights. That said, the author points to existing international mechanisms that may nevertheless provide a forum for victims of IHL violations. These include Claims Commissions, various Human Rights bodies such as the Inter-American Commission and Court on Human Rights and the European Court of Human Rights that have examined human rights questions in a humanitarian law context. These bodies are well placed to remedy the lack of implementation mechanisms for IHL. Furthermore International Criminal Tribunals and Courts are mentioned as potentially effective fora. Of explicit interest in this context are the statutes of the International Criminal Court incorporating avenues of redress for victims and giving them standing in their own right.

The work concludes that victims of IHL seeking to enforce their right to a remedy at a national level are too often left in the cold by domestic courts that decline to recognize their standing against the State. Meanwhile, on the international level, although progress has certainly been made by international human rights committees and courts as well as criminal courts hearing cases that have resulted in IHL victims, there is no general mechanism that allows victims to assert their rights under IHL.