by Dieter Fleck*

For times unmemorable and still during recent decades reparations for war victims have escaped general legal regulation and mostly remained dependent on governments’ discretion. Obligations of States, eloquently explained by Avril McDonald, were held unclear and implementation was often lacking. General legal conclusions were darkened by the ad hoc character of most of the decisions taken. If the topic has now progressively turned into a matter of international law, this is also due to convincing efforts of non-governmental organizations, such as the Stichting Japanse Ereschulden.^[1] Yet contradistinctive legal principles such as State responsibility and sovereign immunity, contested interpretations, and last not least the compelling facts in war-torn countries make it difficult, if not impossible, to reach universally accepted solutions.

It may seem paradox in armed conflicts today that the individual  responsibility  for international crimes is fully part of current international law, whereas the  rights  of individual victims under international humanitarian law remain ‘imperfect’ in that there is no correlative and enforceable duty on the side of the responsible States. Not the individual victims but States are to claim such imperfect rights on behalf of their citizens, and States may waive or settle the claims in any manner they wish.^[2]

Indeed, it is not that the existence of individual rights of war victims could be denied under current international law.^[3] But State practice and jurisprudence have not accepted so far that such rights are enforceable by the individual bearers.^[4] While the need to establish and progressively develop an individual right to reparation, including compensation, for victims of armed conflict is accepted by an increasing number of international bodies, there is no sufficient State practice to allow for a fully developed individual right to be considered as constituting customary international law.^[5]

The legal controversies involved may sound academic; yet their result is very practical. A number of relevant questions are still to be answered in order to make a claims system work effectively: If an individual right exists, what use can be made of it, if the owner of the right cannot claim it and is unable to have it asserted? If a right to reparation can be established, must it be strictly fulfilled or just to the extent possible? Is that right limited to more serious or systematic breaches or does it apply to any violation of international humanitarian law or human rights? May it be triggered by collateral damage in armed conflict, i.e. in situations where States and their armed forces while causing enormous damage have acted in compliance with the laws of war? Must corresponding obligations to make reparation be borne by States or also by non-State actors? May individual victims claim those rights, and if so, how? These are the questions which embarrassingly enough remain unanswered by the law in force. It must be accepted that victims of armed conflict are frustrated by legalistic objections to compensation of serious and incontestable violations of international humanitarian law and human rights. But international law should not only be taken as a fixed body of rules. Legal arguments should rather be seen as a process limiting the power of the mighty and strengthening the weak. In that respect quite considerable progress could be achieved during the last decades. 

In cases before the International Criminal Court victims may participate and voice their interests already at the early stages. They may make representations to the Pre-Trial Chamber in accordance with the Rules of Procedure and Evidence,^[6] submit observations to the Court with respect to jurisdiction or admissibility,^[7] and actively participate in proceedings before the Court. The protection of their safety, physical and psychological well-being, dignity and privacy is regulated in detail.^[8] What may be more important, a Trust Fund is established under the Statute,^[9] and the Court shall establish principles relating to reparations including restitution, compensation and rehabilitation, without prejudice to the rights of victims under national and international law.^[10] But of course individual perpetrators can hardly be expected to financially fulfil their full liability for crimes they have committed. It is upon States, and the international community as a whole, to cope with this task.

Professor van Boven convincingly explained that the Basic Principles and Guidelines adopted by the UN General Assembly in 2005^[11] are the result of difficult negotiations and many diplomatic compromises which had been worked out in the Human Rights Commission, a political body now replaced by the Human Rights Council. As a result the rights of individual victims are more visible today, but they have not lost their character as imperfect rights: Under these Principles and Guidelines the obligation to respect, to ensure respect for and implement human rights law and international humanitarian law includes, inter alia, the duty: (a) to take appropriate measures to prevent violations; (b) to investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; (c) to provide victims with equal and effective access to justice; and (d) to provide effective remedies to victims, including reparation. This language confirms the responsibility of States to provide remedies and reparation for gross violations. It even calls for access to relevant information concerning violations and reparation mechanisms. But it conspicuously avoids to  address the controversial question as to the extent of individual rights, except for a plea to provide equal and effective access to justice, adequate, effective and prompt reparation for the harm suffered. Thus again the responsibility of States is invoked to act on their own initiative and close gaps which continue to exist in current international law. It may be realistic to support practical solutions, which should be developed rather pragmatically for each situation, and not so much expect generic provisions of international law in this respect. As Frits Kalshoven has rightly put it, ‘it will still be the governments that, on a case-by-case basis, determine whether to do something for the individual and, if so, what.^[12]

The new Declaration of International Law Principles on Reparation  for Victims of War which is being prepared by the International Law Association^[13] will not change this situation fundamentally. If adopted, it may be taken as a statement of best practice and as a recommendation for useful further development of rules that are not yet regulated by customary international law. Any further development will depend on decisions to be taken by States and International Organizations, on treaty negotiations, progressive practice, and in particular on the willingness of States to accept new obligations vis-à-vis the victims.

One of the most important obstacles for making full reparation results from the factual limitations existing in post-conflict situations. Art. 10 of the current ILA Draft Declaration^[14] states that the amount of compensation due may not be limited unless (a) this is the only means for the responsible State to safeguard its own means of subsistence and (b) the victims are not severely disadvantaged by the failure to make full compensation. This will allow for limitation in quite many cases which are unique to post-conflict situations. The legal possibility to make such exception is in line with a former text proposal for the UN Draft Articles on Responsibility of States for Internationally Wrongful Acts^[15] which unfortunately had disappeared from the final version and is now difficult to be read into that document by means of interpretation.^[16] It is obvious that in the aftermath of an armed conflict full reparation may jeopardise the social system and severely impede post-conflict reconstruction within the territories of all Parties to the former conflict. Thus a balance must be found between the rights of victims and the possibilities of the State concerned. In establishing peace individual victims must accept limitations in the interest of all. 

Victims of armed conflicts do of course know best that a legalistic approach to claims settlement would be illusionary and also counterproductive. They are not just looking for restitution, but will rather seek for a remedy or redress in the forms of compensation, rehabilitation, satisfaction, or guarantees of non-repetition. Satisfaction is not limited to financial efforts: it may include an acknowledgement of the breach, an expression of regret or an official apology. For violations of  human rights and international humanitarian law committed in armed conflicts full reparation will be impossible and should not be expected even under the most progressive legal system.^[17] Yet the political willingness to meet international obligations may lead to positive results even under the most enormous economic strain. In South Africa a modest individual grant for victims of the apartheid policy, accompanied by symbolic reparation, health care and institutional reform made very effective results in the democratisation process.^[18] After the end of the civil war in Guatemala at least historical facts were elaborated and officially acknowledged.^[19] Other countries – we will discuss examples later during this conference – have taken enormous efforts after World War II to help victims irrespective of their nationality and made compensation clearly beyond existing legal obligations.

Convincing efforts to make reparation may not only be expected from the responsible State, but also from the State to which the victim belongs. While in the latter case claims settlement activities are fully part of national law, international legal considerations will not be absent, in recognition of the negotiations between the States concerned and international standards of good governance which must be observed. At least for one legal reason domestic claims settlement activities are indispensable: they can and must comprise war damage that has been caused not in violation of international law, but as collateral damage, a legal term to describe damage resulting from attacks against military objectives in an armed conflict without infringing with the principle of proportionality or other rules of the laws of war. Experience shows that a considerable portion of damages committed under the scourge of war is caused by highly disciplined forces conducting their operations in full compliance with the laws of war. The attacker cannot be held liable under international war for collateral damage; but it would be less than reasonable if the attacked State would not take any effort to make reparation also in this respect.

There may also be acts in armed conflicts the wrongfulness of which is precluded by specific circumstances. As a matter of general international law, a whole chapter of the Draft Articles on Responsibility of States for Internationally Wrongful Acts is listing such circumstances in terms of consent, self-defence, countermeasures in respect of an internationally wrongful act, force majeure, distress, or necessity, but it also states that ‘[n]othingnothing in this chapter precludes the wrongfulness of any acts of a State which is not in conformity with an obligation arising under a peremptory norm of general international law’.^[20] It is well accepted today that many rules of international humanitarian law and human rights have peremptory character. Both branches of law are equally applicable in situations of attack and of self-defence and international humanitarian law being a compromise between military and humanitarian requirements, considerations of military necessity cannot justify departing from its rules to seek a military advantage using forbidden means.^[21] It must also  be considered that countermeasures are widely prohibited under international humanitarian law today^[22]. Lex specialis norms must of course be honoured, as expressly stated in the Draft Articles.^[23]

Claims against States that have caused war damage may be submitted within municipal legal orders of these States. Experience shows that this is not altogether unsuccessful. Of course, defendant States have denied and are still denying today any direct obligation towards individual victims. But all States have an objective interest in the settlement of damage they have caused in an armed conflict. This is especially true for post-conflict situations where efforts to improve good governance are met with political will and economic renewal. It is in such a political climate that appropriate settlement of war damage may be achieved without contentious court proceedings, as it is fully realised by the government that a solid outcome will be in the interest of justice and social welfare. Where a claim must be submitted to the courts of the State of the respondent Party, state immunity is not an issue, even if the claimant invokes rights under international rather than the national law of the respondent State. There may be the best prospects for individuals to seek reparation within the municipal legal order of the responsible State if international legal obligations are well incorporated and fundamental rights of the individual fully ensured.

But for proceedings before national courts of other than the responsible State immunity continues to be an effective impediment. As a general rule, States committing human rights violations or breaches of international humanitarian law do not forfeit protection under the law of immunity .^[24] An exception for the violation of certain core norms of international humanitarian law and human rights which is now under discussion in the ILA Committee^[25] raises problems of interpretation of what is a core norm and what is part of generally accepted jus cogens. Even if such an exception could be defined in unequivocal terms, it would still meet with some problems, as it would deviate from comparable principles of international criminal law where exceptions from State immunity are accepted for the crime of genocide, crimes against humanity, and war crimes,^[26] but not for other acts or omissions even if core norms of international humanitarian law or human rights may have been violated. It could certainly be argued that these principles and rules of international criminal law may be without prejudice to the law of reparation;^[27] but they are indicative for the requirement to limit exceptions to State immunity to that what is absolutely necessary and not to allow for the creation of obligations that are not clearly defined.

Remedies for war damage will thus remain subject to good will and political pressure, unless effective international jurisdiction exists, as it is the case with the ICC, with regional human rights courts – although the judgments of the latter may not be directly enforceable –  and special claims processes which may be established on an ad hoc basis. ^[28]

A particular problem of immunity is related to peace operations. In Kosovo cluster munitions that had not been removed still in March 2000, long after the termination of active hostilities, have caused the tragic death of playing children; also persons were kept in operational detention over several months in 2001 without any court decision.^[29] In another case individual property rights were left without investigation over several years prior to 2004.^[30] Yet the European Court of Human Rights denied admissibility of all these cases arguing that the acts or omissions in question were attributable to the United Nations and not to States. Recently, the District Court in The Hague has applied the same ratio with respect to the failure of peacekeepers who had operated under UN mandate in Srebrenica.^[31] Even if these judgments may be questioned under the existing rules on unified command and control of both KFOR and UNPROFOR, and the control to be exercised by the Security Council may have been over-interpreted by the judges, this jurisprudence reveals that there is a lack of  independent legal control of multinational peace operations.^[32]