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2015 | Helen Duffy; The 'War on Terror' and the Framework of International Law

by Helen Duffy

2nd ed. Cambridge University Press 2015 ISBN 110760172X, 9781107601727

Of specific interest for reparations for drone victims is chapter 7. On accountability and justice, see chapters 4, 6, 7, 11.

While suspects of terrorism are being attacked with lethal drones, civilians too are being killed and otherwise suffer harm therefrom. Beyond the right to life, the harm inflicted on civilians may breach other rights including the right to private life, family life, an adequate standard of living, housing and health. As a recognized principle of (customary) international law, specifically enshrined in human rights instruments, victims of rights violations have the right to a remedy. The rights to a remedy elaborated on in the context of human rights law, have been drawn across as tools to interpret this right under the law of armed conflict and examples are provided to show the role of the UN in this cross-fertilisation and harmonisation between the two areas of law.

The right to a remedy includes the right to restitution, compensation for damages and recognition for harm suffered and applies to victims who suffered harm caused by the use of force while countering terrorism, as well. Nevertheless, and without prejudice to some cases where states made ex gratia payments to victims while explicitly stating that this is not a form of recognition or acknowledgement of responsibility, acknowledgement of wrongdoing and reparation by states remains bare.

In face of a lack of political remedies or criminal prosecutions, victims seeking remedies have filed civil claims, but have encountered legal, practical and political obstacles. Domestic law and constitutions may bar legal procedures by providing –among others- immunity for heads of state or government officials irrespective of the fact that the lawfulness of such measures is limited by the international human rights and criminal law obligations to investigate and prosecute human rights violations at a national level. In addition, judicial review so far has stranded on various preliminary issues such as lack of a victim’s legal standing, the secrecy surrounding drone attacks and courts findings that they are ill-equipped to second guess the Executive’s decisions to deploy lethal drones. In this context, the availability of remedies outside national jurisdictions has proved increasingly significant as the only avenue towards a measure of justice and accountability. However, it remains to be seen whether they can contribute to justice for victims and will confirm the much-neglected human rights principles of remedy and accountability.

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