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2014 | Alphonse Muleefu; Reparations for Victims of Collateral Damage: A Normative and Theoretical Inquiry

War causes harm such as the destruction of lives and property of civilians. This harm is either lawful or unlawful. It is considered lawful when originating from conduct in compliance with the laws of the war, meaning proportionate and discriminate attacks and/or due to incidental damage that is not (clearly) excessive in relation to the expected military gains. Harm is unlawful when resulting from acts in breach of the laws of the war. Victims of unlawful damages have a right to reparation, as opposed to victims of lawful damage, also referred to as collateral damage. This PhD thesis focusses on understanding the reasons for this dichotomy and tries to find out whether there are grounds on which reparation to victims of collateral damage could be justifiable.

Legal norms on the right to reparation

Chapter 3 puts reparations to victims of war in historical perspective and elaborates on the legal underpinnings for reparation to victims of war, highlighting Article 91 of Additional Protocol I, Article 3 of the 1907 Hague Convention, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005) and the Declaration of International Law Principles on Reparation for Victims of Armed Conflict (2010). There are however significant limitations to the efficacy of these instruments: while it is still unclear whether the laws of war provide a direct right to victims to claim reparation under international law in their own capacity without depending on their state seeking reparation on their behalf, the latter two instruments  formulate reparation as a ‘secondary right’ meaning that it can only be invoked after the violation of another ‘primary right’, which confines the right to reparation to victims of unlawful damages, to the exclusion of victims of collateral damage.

Practice and the right to reparation

Following this normative search, the work examines whether the right to reparation for victims of lawful war damages can be derived from practice by analysing the approach of post-war mass reparation programmes, Truth and Reconciliation Commissions (TRCs) and the making of amends and condolence/ex gratia payments. Indeed, at the end of the Cold War (1991) there has been some progress in the development of individual victim-based reparation: the United Nations Compensation Commission (UNCC) for example, never attempted to discriminate between victims based on the lawfulness or unlawfulness of the attacks that harmed them and TRCs have generally avoided making distinctions between victims of war crimes and victims of collateral damage. But despite encouraging developments, the author concludes that practice provides too limited evidence to suggest an emerging customary norm for the right to reparation for victims of collateral damage.

To the author, the absence of a legal obligation to repair collateral damage and current practice do not justify the conclusion that these victims should not be entitled to reparation. While pointing out that reparation is about undoing, restoring or adequately dealing with the consequences of acts of war, he underscores that these consequences are alike for the victims regardless the lawfulness or unlawfulness of an attack and therefore finds that fairness would dictate that the two categories of victims be treated alike. However, reparation of collateral damage based on fairness is not consistent with the laws of war requiring wrongful conduct, a breach of that law, as ground for reparation.

Chapter 6 delves into potential grounds justifying reparation for victims of collateral damage by drawing analogies with tort law, human rights law, international state (strict) liability and the role of addressing lawful damages caused by the Dutch police. Although this interesting exercise may provide some arguments for the right to reparation to victims of lawful harm (namely: human dignity, equality and strict liability), the conclusion also here is that they do not provide for a justification consistent with the laws of war as ground for reparation.

Humanitarian grounds as argument for reparations of lawful harm

Interestingly, the author purports in chapter 7 that such ground can be found in humanitarian reasons. Humanitarianism is a concern for the wellbeing of an individual as a human being, the feeling for the suffering of others.  The same concern also lies at the heart of the laws of war, more particularly the Four Geneva Conventions and its Additional Protocols, focussing on reducing human suffering, protecting civilians and their properties from being targeted, and the right to humanitarian assistance. It is advanced that this parallel satisfies the requirement of consistency with the laws of war. This seems a somewhat laborious reasoning, bearing in mind that the work repeatedly emphasizes that for ‘consistency with the laws of war’, a wrongful conduct is required as a ground for reparation, which introducing a ground breathing the same humanitarian spirit as existing laws is not.

Basically, the author concludes that whereas under the existing law, victims of collateral damage have no right to reparation, humanitarian grounds nevertheless justify this right that as a next step, should be formalized in new legislation; at the international level through inclusion in Article 91 Additional Protocol 1 and at the domestic level through the adoption national legislation providing reparation to all victims of war.