i.l.a. report compensation for victims of war

8/16/2019 I.L.a. REPORT Compensation for Victims of War

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International Law Association

Committee on Compensation for Victims of War

Compensation for victims of war

- Background Report -

prepared by

Rainer Hofmann and Frank Riemann17 March 2004


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CONTENTS

I. Introduction............................................................................................................................. 31. Terminology ....................................................................................................................... 32. Function............................................................................................................................. 6

3. Scope of applicable law..................................................................................................... 7II. Historical Developments ....................................................................................................... 8

1. Article 3 Hague Convention IV of 1907 ............................................................................ 82. World War I ....................................................................................................................... 93. World War II .................................................................................................................... 11

a) Peace Agreements with Germany ................................................................................ 11 b) Peace Agreements with Japan...................................................................................... 13

4. The Geneva Conventions of 1949 and the Additional Protocol I .................................... 135. Regional Human Rights Courts and Commissions .......................................................... 156. Ad-hoc Claims Commissions ........................................................................................... 16

a) United Nations Compensation Commission (UNCC) ................................................. 17

b) Eritrea-Ethiopia Claims Commission (EECC) ............................................................ 187. World War II revisited ..................................................................................................... 19

a) Distomo Cases.............................................................................................................. 19 b) Forced Labor ................................................................................................................ 21

aa) Claims before courts in Germany........................................................................... 22 bb) Claims before courts in Japan ................................................................................ 22cc) Claims before U.S. courts....................................................................................... 23

c) Comfort women ........................................................................................................... 25aa) Claims before Courts in Japan................................................................................ 26

bb) Claims before Courts in the U.S. ........................................................................... 26d) Japanese Germ Warfare ............................................................................................... 27

8. The ILC Draft Articles on State Responsibility ............................................................... 279. Recent work of the Human Rights Commission, Resolution 44/2002 ............................ 2810. Ad-hoc Criminal Tribunals and the International Criminal Court................................. 29

III. Systematic Account of Issues............................................................................................. 301. Legal Basis for the Claim................................................................................................. 31

a) International Law ......................................................................................................... 31 b) National Laws .............................................................................................................. 33

2. Exclusion or Subsumtion by Peace Treaties ................................................................... 353. Forum for litigation .......................................................................................................... 37

a) International Humanitarian Fact-Finding Commission ............................................... 37

b) International courts and tribunals................................................................................. 38aa) International Court of Justice ................................................................................. 38 bb) International Criminal Court.................................................................................. 38cc) Regional Human Rights Courts and Commissions ................................................ 38

(1) Inter-American Commission and Court on Human Rights ................................ 39(2) European Court of Human Rights ...................................................................... 41(3) African Commission on Human and Peoples’ Rights ........................................ 41

c) Domestic or Foreign Courts......................................................................................... 42aa) Courts in the United States..................................................................................... 44

bb) Courts in the United Kingdom............................................................................... 46d) Courts of Respondent State.......................................................................................... 47

IV. Conclusions........................................................................................................................ 48

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I. Introduction

In May 2003, the International Law Association instituted a new committee on“Compensations for victims of war” and gave it the following mandate:

“Innocent civilians are often casualties during armed conflicts, whether or notintentionally targeted. Deprived of effective protection, they are often leftwithout any remedy if they are killed or wounded, or suffer property or otherlosses. It is time to systematically review the law of war and human rightswith a view to focussing on the rights of victims of war to compensation —

both to serve the end of justice and to inhibit wanton attack on civilian population by the military, whether or not under superior order. The proposed project would have as its goal the preparation and adoption of a DraftDeclaration of International Law Principles on Compensation to Victims ofWar, as a logical sequel to three ILA declarations already adopted: namely, onMass Expulsion (Seoul 1986), Compensation to Refugees (Cairo 1992), andInternally Displaced Persons (London 2000). Underlying all these declarationsis the principle that compensation must, under international law, be paid tovictims of human rights abuses.”

It thus reacted to an ever-increasing demand for scholarly work on the issue ofcompensation for victims of human rights violations or, more specifically, for civilian victimsof war. First initiatives date back to the early 1990ies.1 More recently, individuals whothemselves - or whose family members - have been victims of human rights or humanitarianlaw violations in general international law or instruments of international law that respond tohumanitarian law have instituted procedures before courts of different jurisdictions in order to

claim monetary compensation.

2

The following report aims at providing an overview of the development of the present

state of international law and will point to some issues that are open to further development.

1. Terminology

First, some remarks on the terminology used in this report seem necessary. The term“compensation” as it appears in the name of the Committee seems to be generally understoodas to cover only a monetary payment in cases where a restitutio ad integrum is not possible.

The overarching term that would cover all forms of redress after a rights violation is“reparation”. This terminology formed the basis of the Chorzów Factory case, whichremains the cornerstone of international claims for reparations, whether presented by states orother litigants3. In its judgment, the Permanent Court of International Justice held:

1 See, e.g., The Right to Restitution, Compensation and Rehabilitation for victims of gross violations of humanrights and fundamental freedoms, Final Report of the Special Rapporteur Mr. Theo van Boven, UN Doc.E/CN.4/Sub.2/1993/, 2 July 1993; and L. Lee, “The Right of Victims of War to Compensation”, in R.St.J.

Macdonald (ed.), Essays in Honour of Wang Tieya (1993), p. 489.2 See most recently the report in the British newspaper The Guardian (of 21 February 2004) on court actions

prepared by family members of Iraqui civilians killed by British troops during the military intervention against

Iraq in 2003.3 The ICJ has indicated that the basic principle of reparation articulated in the Chorzów Factory case applies toreparation for injury to individuals, even when a specific jurisdictional provision on reparation is contained in the

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“The essential principle contained in the actual notion of an illegal act [...] isthat reparation must, as far as possible, wipe out all the consequences of theillegal act and re-establish the situation which would, in all probability, haveexisted if that act had not been committed. Restitution in kind, or, if this is not

possible, payment of a sum corresponding to the value which a restitution inkind would bear; the award, if need be, of damages for loss sustained whichwould not be covered by restitution in kind or payment in place of it – such arethe principles which should serve to determine the amount of compensation duefor an act contrary to international law.”4

Both the ILC Draft Principles on State Responsibility and the “Basic Principles andGuidelines on the Right to a Remedy and Reparations for Victims of Violations ofInternational Human Rights and Humanitarian Law” proposed by the UN Commission onHuman Rights use “reparation” as the general term and “compensation” as one of its specialforms. Given that this interpretation seems to be widely accepted and in order not to unduly

restrict the scope of this report, it will take up the term “reparations” as the basis of the study.But the focus of this Report on Compensation is dictated both by the mandate of thisCommittee and the fact that the most common remedy to the breach of internationalobligations is adequate compensation.5

To further illustrate what different forms reparations for victims of war can take,reference can be made to the “Basic Principles and Guidelines on the Right to a Remedy andReparations for Victims of Violations of International Human Rights and Humanitarian Law”,elaborated under the auspices of the UN Commission on Human Rights6 which distinguishthe following cases:

“X. Forms of Reparation

21. In accordance with their domestic law and international obligations, andtaking account of individual circumstances, States should provide victims ofviolations of international human rights and humanitarian law the followingforms of reparation: restitution, compensation, rehabilitation, and satisfactionand guarantees of non-repetition.

22. Restitution should, whenever possible, restore the victim to the originalsituation before the violations of international human rights or humanitarianlaw occurred. Restitution includes: restoration of liberty, legal rights, socialstatus, family life and citizenship; return to one’s place of residence; and

restoration of employment and return of property.23. Compensation should be provided for any economically assessable damageresulting from violations of international human rights and humanitarian law,such as:

statute of the tribunal. Application for Review of Judgement No. 158 of the United Nations AdministrativeTribunal, Advisory Opinion, I.C.J. Reports 1973, p. 166 at pp. 197-98.4 PCIJ, Factory at Chorzów, P.C.I.J. Reports, Series A, No. 17, 1928, p. 47 (emphasis added).5 C. Oliver, “Legal Remedies and Sanctions”, in R. Lillich (ed.), International Law of State Responsibility forInjuries to Aliens, p. 61, 71 (1983).6 The right to Restitution, Compensation and Rehabilitation for victims of gross violations of human rights andfundamental freedoms, Final Report of the Special Rapporteur Mr. M. Cherif Bassiouni, E/CN.4/2000/62, 18January 2000, pp. 5 et seq.

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(a) Physical or mental harm, including pain, suffering and emotional distress7;(b) Lost opportunities, including education;(c) Material damages and loss of earnings, including loss of earning potential;(d) Harm to reputation or dignity; and(e) Costs required for legal or expert assistance, medicines and medical services,

and psychological and social services.24. Rehabilitation should include medical and psychological care as well as legal

and social services.25. Satisfaction and guarantees of non-repetition should include, where applica-

ble, any or all of the following:(a) Cessation of continuing violations;(b) Verification of the facts and full and public disclosure of the truth to the ex-

tent that such disclosure does not cause further unnecessary harm or threatenthe safety of the victim, witnesses, or others;

(c) The search for the bodies of those killed or disappeared and assistance in theidentification and reburial of the bodies in accordance with the cultural prac-

tices of the families and communities;(d) An official declaration or a judicial decision restoring the dignity, reputation

and legal and social rights of the victim and of persons closely connectedwith the victim;

(e) Apology, including public acknowledgement of the facts and acceptance ofresponsibility;

(f) Judicial or administrative sanctions against persons responsible for the viola-tions;

(g) Commemorations and tributes to the victims;(h) Inclusion of an accurate account of the violations that occurred in interna-

tional human rights and humanitarian law training and in educational mate-rial at all levels;

(i) Preventing the recurrence of violations by such means as:(i) Ensuring effective civilian control of military and security forces;(ii) Restricting the jurisdiction of military tribunals only to specifically military

offences committed by members of the armed forces;(iii) Strengthening the independence of the judiciary;(iv) Protecting persons in the legal, media and other related professions and hu-

man rights defenders;(v) Conducting and strengthening, on a priority and continued basis, human

rights training to all sectors of society, in particular to military and security

forces and to law enforcement officials;(vi) Promoting the observance of codes of conduct and ethical norms, in par-ticular international standards, by public servants, including law enforce-ment, correctional, media, medical, psychological, social service and military

personnel, as well as the staff of economic enterprises;(vii) Creating mechanisms for monitoring conflict resolution and preventive in-

tervention.”8

7 On emotional harm see also IACHR, Velásquez-Rodriguez, Judgment of 29 July, 1988, Series C, No. 4 at para.158.8 Paras. 21 - 25.

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It is important to point out that current international law does not recognize punitivedamages9 although it has been suggested that punitive damages should be considered in casesof grave violations of human rights and humanitarian law.

A definition of persons falling into the category of “victims of war” seems appropriate

considering that the term “victim” does not appear in humanitarian law treaties. Howevertheir existence is nevertheless presupposed, because it is their protection the treaties wereenacted for 10. Again a reference to the UNCHR “Basic Principles and Guidelines on the Rightto a Remedy and Reparations for Victims of Violations of International Human Rights andHumanitarian Law” provides the necessary clarity: “A person is ‘a victim’ where, as a resultof acts or omissions that constitute a violation of international human rights or humanitarianlaw norms, that person, individually or collectively, suffered harm, including physical ormental injury, emotional suffering, economic loss, or impairment of that person’sfundamental legal rights”11.

On the other hand, Emanuela-Chiara Gillard points out that the requirement of aviolation of humanitarian law or human rights law in the definition of the victim, as

presupposed by the term “reparation” might lead to injustices in practice.12 She suggestsavoiding these problems by having recourse to a wide definition of victims so as to include all

persons adversely affected by a conflict or another wide test such as the violation of jus adbellum

13. While Gillard’s point is certainly valid, the present report still maintains thedefinition of the victim as stated out above. Using the violation of the ius ad bellum as acriterion seems problematic as it would leave citizens of the state who violated the ius adbellum unprotected 14. Taking all persons adversely affected by the war as a basis for thisstudy would be difficult because it would simply not be specific enough to characterize thecases that will be presented below. This does not mean, however, that in the future course ofthe Committee’s work the definition of the victim should not be revisited and possiblyextended.

2. Function

Reflecting briefly on the function reparation for war victims can fulfill, the position ofthe victim needs to be the point of departure. Reparation can help victims to some extent inrebuilding their lives, be it on the financial, emotional or legal plane. “Help” is the term used

9 S. Kadelbach, “Staatenverantwortlichkeit für Angriffskriege und Verbrechen gegen die Menschlichkeit”, inDeutsche Gesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/DieKonstitutionalisierung der Welthandelsordnung (2003), p.63 at p. 86; W. Heintschel von Heinegg,

“Entschädigung für Verletzungen des humanitären Völkerrechts“, in Deutsche Gesellschaft für Völkerrecht(ed.), Entschädigung nach bewaffneten Konflikten/Die Konstitutionalisierung der Welthandelsordnung (2003),

p. 1 at p. 39.10 See L L. Zegveld, “Remedies for victims of violations of international humanitarian law”, 85 International

Review of the Red Cross (2003), p. 497 at p. 501.11 Para 8.12 Gillard cites the following as an example: “Insistence on the need for a violation would mean that a civilianwhose home was targeted would be compensated, but that his neighbor, whose dwelling was destroyed as theresult of permissible collateral damage, would not.”; E.-C. Gillard, “Reparations for violations of internationalhumanitarian law, 85 International Review of the Red Cross (2003), p. 529 at p. 551.13 E.-C. Gillard, “Reparations for violations of international humanitarian law“, 85 International Review of the

Red Cross (2003), p. 529 at p. 551. On the subject of reparations for violations of the ius ad bellum see also S.Kadelbach, “Staatenverantwortlichkeit für Angriffskriege und Verbrechen gegen die Menschlichkeit”, in

Deutsche Gesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/DieKonstitutionalisierung der Welthandelsordnung (2003), p.63 et seq.14 Although admittedly reparations have in practice regularly been such a one-way street.

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deliberately here, because it seems naive to assume that restitution to the status quo ante could ever be achieved in a significant number of cases.

On another level, reparations can serve a purpose by ensuring better compliance with thenorms protecting individuals in wartime15. The fact that reparations presuppose a breach ofnorms of international law16 further strengthens this connection. Of course, reparations come

by definition only into play once a violation has already taken place, but a secondary right toreparation nevertheless gives additional recognition to the primary right it is related to and canto some extent deter future violations17.

3. Scope of applicable law

As the mandate of the Committee is confined to “Compensation for victims of war ”, thisstudy will focus on those laws applicable in wartime, especially the international humanitarianlaw. As the International Court of Justice held in its Advisory Opinion Legality of the Threator Use of Nuclear Weapons, the law applicable in armed conflict, which is designed to

regulate the conduct of hostilities, constitutes a lex specialis18. It is also widely recognizedthat the system of international humanitarian law is a self-contained regime19 which has itsown system of secondary norms which may not be extended by reference to other bodies oflaw20. While there is undoubtedly a cross-fertilization between human rights law andhumanitarian law21, there are good reasons not to consider them to be one and the same. Thefact that the latter is designed to apply in situations of armed conflict and the former mainly intimes of peace – notwithstanding that human rights law will remain applicable even in timesof armed conflict as long as it is not superseded by the law of armed conflict or derogatedaccording to the applicable rules of international human rights law - and the resulting

15 W. Heintschel von Heinegg, “Entschädigung für Verletzungen des humanitären Völkerrechts“, in DeutscheGesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/Die Konstitutionalisierung derWelthandelsordnung (2003), p. 1 at p. 20 with further references.16 W. Heintschel von Heinegg, “Entschädigung für Verletzungen des humanitären Völkerrechts“, in DeutscheGesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/Die Konstitutionalisierung derWelthandelsordnung (2003), p. 1 at p. 20; J-M. Arbour, Droit International Public, (4e èd. 2002), p. 507.17 E.-C. Gillard, “Reparations for violations of international humanitarian law“, 85 International Review of the

Red Cross (2003), p. 529 at p. 530; W. Heintschel von Heinegg, “Entschädigung für Verletzungen deshumanitären Völkerrechts“, in Deutsche Gesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten

Konflikten/Die Konstitutionalisierung der Welthandelsordnung (2003), p. 1 at p. 20; E. Klein, “IndividualReparation Claims under the International Covenant on Civil and Political Rights: The Practice of the HumanRights Committee”, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p.27 at p. 27; A.H. Robertson, “Implementation System: International Measures”, in L. Henkin (ed.), The

International Bill of Rights (1981), p. 357.18 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996,

p. 225 at p. 240.19 ICJ, Case concerning US Diplomatic and Consular Staff in Teheran, Judgment of 24 May 1980, I.C.J. Reports1980, p. 3 at pp. 40-41.20 T. Kamenov, “The Origin of State and Entity Responsibility for Violations of International Humanitarian Lawin Armed Conflicts“, in F. Kalshoven/Y. Sandoz (eds.), Implementation of International Humanitarian Law(1989), p. 169 at p. 170.21 L. Zegveld, “Remedies for victims of violations of international humanitarian law”, 85 International Review of

the Red Cross (2003), p. 497 at p. 505; J.K. Kleffner, “Improving Compliance with International HumanitarianLaw Through the Establishment of an Individual Complaints Procedure”, 15 Leiden Journal of International

Law (2002), p. 237 at p. 245.

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differences in the state-individual relationship have distinctly shaped both bodies of law asregards their substantive contents, their applicability, and their enforcement mechanisms22.

II. Historical Developments

The following chapter will briefly outline historical patterns in the attempts to establishindividual remedies for victims of war.

1. Article 3 Hague Convention IV of 1907

Well before the development of the modern system of international humanitarian law,norms of the law of war provided for a compensation for victims of hostilities. Article 3 of theHague Convention IV of 1907 respecting the laws and customs of war on land stated:

“A belligerent party which violates the provisions of the said Regulations shall,if the case demands, be liable to pay compensation. It shall be responsible forall acts committed by persons forming part of its armed forces.”

While this liability to pay compensation is, at least in part, aimed at ultimately benefiting the victims of the unlawful conduct23, the provision does not seek to empowerindividuals to claim this compensation by themselves. Article 2 stipulates that the Conventionapplies between “Contracting Parties”; nowhere in the Convention are individuals named asdirect beneficiaries or claimants of the said compensation24. Compensation for violations ofthe Convention is available only to states.25.

Article 3 of the Hague Convention therefore did not constitute a departure from thetraditional principle26 according to which only states can claim compensation from one

22 See R. Provost, International Human Rights and Humanitarian Law (2002), pp. 8-10, 56, 343-345; R. Dolzer,“The Settlements of War- Related Claims: Does International Law Recognize a Victim’s Private Right ofAction? Lessons after 1945”, 20 Berkeley Journal of International Law (2002), p. 296 at p. 337.23 See E.-C. Gillard, “Reparations for violations of international humanitarian law“, 85 International Review ofthe Red Cross (2003), p. 529 at p. 536; F. Kalshoven, „State Responsibility for Warlike Acts of the ArmedForces: From Article 3 of the Hague Convention IV of 1907 to Article 91 of Additional Protocol I and Beyond“,40 International and Comparative Law Quarterly (1991), p. 827 at p. 830; M. Frulli, “When Are States LiableTowards Individuals for Serious Violations of Humanitarian Law? The Markovic Case” 1 Journal of

International Criminal Justice (2003), p. 406 at p.417 and p. 426.24 See German Federal Supreme Court ( Bundesgerichtshof - BGH), Distomo, BGH – III ZR 245/98, 26 June

2003.25 K. Strupp, Das Internationale Landkriegsrecht (1914), p. 29; D. Kube, Private Kriegsschäden in dervölkerrechtlichen Praxis. Ein Beitrag zur Staatenverantwortlichkeit im Kriege (1971), p. 41; R. Provost,

International Human Rights and Humanitarian Law (2002), p. 45 both with further references. Courts in variouscountries have consistently held that Article 3 of the Convention does not support individual claims. UnitedStates: Tel Oren v. Libyan Arab Republic, 726 F. 2d 774, 816 (D.C. Cir. 1984); Leo Handel v. Artukovic, 601 F.Supp. 1421 (D.D.C., 1985); Goldstar (Panama) S.A. v. United States, 967 F. 2d. 965, 968-969 (4th Cir. 1992);Germany: German Supreme Appellate Court (BGH), Distomo, BGH – III ZR 245/98, 26 June 2003; Japan:Tokyo High Court, Judgment of 8 February 2001, 45 The Japanese Annual of International Law (2002), p. 142;Judgment of 11 October 2001, 45 The Japanese Annual of International Law (2002); Italy: Italian Court ofCassation (Corte di Cassazione), Soc. Timber, Soc. Zeta, Soc. Obla v. Ministeri Esteri e Tesoro , 18 International

Law Reports (1951), p. 621 at p. 622.26 E.-C. Gillard, “Reparations for violations of international humanitarian law“, 85 International Review of the

Red Cross (2003), p. 529 at p. 534 even goes as far as to say that Article 3 is only a declaratory expression of thegeneral principle spelled out in the Chorzów Factory Case that a violation of international law leads toreparation.

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another for violations of international law, the fact that an individual was harmed being onlythe basis for the claim (“mediatization” of the individual)27. Dionisio Anzilotti summarizedthe prevailing opinion on the issue when he said: “la conduite d’un Etat, toute contrairequ’elle soit au droit international, ne saurait jamais donner naissance à un droit de l’individu àla réparation du dommage souffert.28” Of course, the position of the individual today could no

longer be summed up in a simple sentence as it was considered sufficient in Anzilotti’stimes29. But at least in part his statement remained true into modern times as the famousdictum of the International Court Justice in the Barcelona Traction Case proves: “in inter-state relations, whether states claims are made on behalf of a State’s national or on behalf ofthe State itself, they are always claims of the State”30.

2. World War I31

Beginning with the Versailles Treaty concluding World War I, the term “reparations”came into use32. Reparations were clearly associated with a moral and legal judgment33 and

were negotiated exclusively between states. Before that time, the focus had been on

27 W. Heintschel von Heinegg, “Entschädigung für Verletzungen des humanitären Völkerrechts“, in DeutscheGesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/Die Konstitutionalisierung derWelthandelsordnung (2003), p. 1 at p. 25; A. Verdross/B. Simma, Universelles Völkerrecht (3rd ed. 1984), pp.873 et seq.; E. Klein, “Individual Reparation Claims under the International Covenant on Civil and PoliticalRights: The Practice of the Human Rights Committee”, in A. Randelzhofer/C. Tomuschat (eds.), State

Responsibility and the Individual (1999), p. 27 at p. 27. On the other hand, the Expert Opinions by FritsKalshoven, Christopher Greenwood, and Eric David in the Prisoner-of-War Cases before the Tokyo High Court(decided in November 1998) argue that individuals could claim compensation from Japan for violation of thelaws of war under Article 3 of the Hague Convention IV of 1907. The opinions are published in H. Fujita/I.Suzuki/K. Nagano (eds.), War and the Rights of Individuals: Renaissance of Individual Compensation (1999),

pp. 31-71.28 D. Anzilotti, “La résponsabilité internationale des Etats à raison des dommages soufferts par des étrangers”,

Revue générale de droit international public 13 (1906), p. 5 at p. 5. See also the famous dictum of the PermanentCourt of International Justice in the Lotus Case: “International law governs relations between independentStates”, P.C.I.J. Series A, No. 10, 1927, p. 18.29 C. Tomuschat, “Individual Reparation Claims in Instances of Grave Human Rights Violations: The Positionunder General International Law”, in A. Randelzhofer/ C. Tomuschat (eds.), State Responsibility and the

Individual (1999), p. 1 at p. 2.30 ICJ , Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February1970, I.C.J. Reports 1970, p. 3 at p. 46. In this tradition, Bosnia-Herzegovina is currently demanding fromYugoslavia (Serbia and Montenegro) “in its own right and as parens patriae for its citizens, reparations fordamages to persons and property”, ICJ, Case Concerning Application of the Convention on the Prevention andPunishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order

of 8 April 1993, I.C.J. Reports 1993, p. 3 at p. 7; Case Concerning Application of the Convention on thePrevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia andMontenegro)), Order of 13 September 1993, I.C.J. Reports 1993, p. 325 at p. 329, under r) respectively. See alsoPCIJ, The Mavrommatis Palestine Concessions, P.C.I.J. Series A, No. 2, 1924, p. 12; The Panevezys-Saldutiskis

Railway Case, Series A/B, No. 76, 1939, p. 16; ICJ, Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, I.C.J. Reports 1949, p. 174 at p. 181-182; Nottebohm Case (Liechtenstein v. Guatemala), Judgment of 6 April 1955, I.C.J. Reports 1955, p. 4 at p. 24; The American LawInstitute, Restatement of the Law, Third, Foreign Relations Law of the United States (1987), § 902 cmt. (h)(I); L.Henkin, Foreign Affairs and the Constitution (1972), p. 262; E. Borchard, The Diplomatic Protection of Citizens

Abroad (1915), p. 251; similarly Shaw, International Law, (5th ed. 2003), p. 722.31 See I. Seidl-Hohenveldern, “Kriegsentschädigung (Regelung in den Friedensverträgen nach dem ErstenWeltkrieg)”, Wörterbuch des Völkerrechts II (1961), p. 238.32 K. Doehring, “Reparationen für Kriegsschäden”, in K. Doehring/B.J. Fehn/H.G. Hockerts (eds.),

Jahrhundertschuld, Jahrhundertsühne: Reparationen, Wiedergutmachung, Entschädigung fürnationalsozialistisches Kriegs- und Verfolgungsunrecht (2001), p. 9 at p. 9.33 See Article 231 of the Versailles Treaty.

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recovering the costs of war and the defeated state was thus obliged to pay “warindemnities”34. The term “reparations” on the other hand reflected the aim of the victoriousAllied powers to hold the defeated state liable not only for the costs of war, but also for “allthe loss and damage to which [...] Governments and their nationals have been subjected as aconsequence of the war imposed upon them”35.

This development took account of the fact that the laws of war increasingly sought to protect the civilian population but that the new legal framework only allowed the victoriousstate and not individual claimants to demand compensation for individual losses36. State

practice after World War I was therefore in line with the established and accepted principlesof international law governing individual war claims37. What is more, this Peace Treaty andmany yet to come based the duty to pay reparations more on an infringement of the ius adbellum or the general notion of “war-related claims” than on a specific reference to violationsof the ius in bello38.

In some instances, however, individual claims were allowed. As an example one can point to the claims brought by U.S. citizens against Germany for violations of the laws of warwhich were decided by the U.S.-German Mixed Claims Commission39. The legal basis for

such claims was Article 297 (e) of the Treaty of Versailles which provided:“The nationals of Allied and Associated Powers shall be entitled tocompensation in respect of damage or injury inflicted upon their property,rights or interests, including any company or association in which they areinterested, in German territory as it existed on August 1, 1914 [...] Theclaims made in this respect by such nationals shall be investigated, and thetotal of the compensation shall be determined by the Mixed Arbitral Tribunal

provided for in Section VI or by an Arbitrator appointed by that Tribunal.This compensation shall be borne by Germany, and may be charged upon the

property of German nationals within the territory or under the control of theclaimant's State. This property may be constituted as a pledge for enemyliabilities under the conditions fixed by paragraph 4 of the Annex hereto. The

payment of this compensation may be made by the Allied or AssociatedState, and the amount will be debited to Germany.”40

34 For a very recent and thorough account of law and practice of war reparations see P. d’Argent, Les

Réparations de Guerre en Droit International Public – La Résponsabilité Internationale des Etats à l’épreuve de

la Guerre (2002).35 Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, Art. 231, 1 Bevans43, 137-38. See also R. Dolzer, “The Settlement of War-Related Claims: Does International Law Recognize aVictim's Private Right of Action? Lessons after 1945”, 20 Berkeley Journal of International Law (2002), p. 296at p. 310; W. Heintschel von Heinegg, “Entschädigung für Verletzungen des humanitären Völkerrechts“, in

Deutsche Gesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/DieKonstitutionalisierung der Welthandelsordnung (2003), p. 1 at p. 23; I. Seidl-Hohenveldern, “Reparations”, in R.Bernhard (ed.), Encyclopedia of Public International Law (2000), IV p. 178.36 R. Dolzer, “The Settlement of War-Related Claims: Does International Law Recognize a Victim's PrivateRight of Action? Lessons after 1945”, 20 Berkeley Journal of International Law (2002), p. 296 at p. 310.37 R. Dolzer, “The Settlement of War-Related Claims: Does International Law Recognize a Victim's PrivateRight of Action? Lessons after 1945”, 20 Berkeley Journal of International Law (2002), p. 296 at p. 310.38 E.-C. Gillard, “Reparations for violations of international humanitarian law“, 85 International Review of the

Red Cross (2003), p. 529 at p. 533-534; similarly de Preux, “Article 91”, in Y. Sandoz/C. Swinarski/B.Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12

August 1949 (1989), para. 3647. It has been argued that it would have been impractical to do otherwise giventhat it is often difficult to establish an accurate account in retrospect of the circumstances that caused thedamage, see e.g. “War Claims”, Report of the Advisory Commission, Ottawa/Canada, 25 February 1952, p. 31.39 See D. J. Bederman in R. B. Lillich (ed.), The United Nations Compensation Commission (1995), p. 257 at p.272-273 with further references.40 See further B.W. Eichhorn, Reparation als völkerrechtliche Deliktshaftung (1970), p. 74 et seq.

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Nevertheless, it remains true that the reparation regime after World War I was firmly

grounded on the view that reparations were inter-state matters. The determination ofindividual damages was only part of a larger effort to calculate the inter-state obligations to

pay reparation41.

3. World War II42

The immediate aftermath of World War II saw a novel development: the criminal

responsibilities of individuals for atrocities committed during the war. Before tribunals in Nuremberg and Tokyo, politicians and officers were held responsible for “war crimes”.Victims seeking reparation could not profit from the progress made in the area of individualcriminal responsibility. Approximately 95% of all claims were regulated by lump-sumagreements with the respective home state of the victims, which received money anddistributed it under own discretion without there being the intent to provide full coverage for

every individual damage43.

a) Peace Agreements with Germany44

Peacemaking with Germany was a longer process that involved a series of agreements,

starting with the Potsdam Agreement of 1945 that confirmed Germany’s general obligation to pay reparation to the Allied Powers and determined that they would largely be paid through atransfer of industrial assets to the Allies. The Paris Agreement of 1946 elaborated thereparation scheme further. Its underlying principle was that Germany would owe a certainshare of its assets to the Allies without attempting to achieve full compensation of all

damages inflicted. Individual claims of citizens were explicitly subsumed by thearrangement45. An Interallied Reparation Agency (IARA) was given the task of dividing theGerman assets among the contracting states – a task in which it ultimately failed. Again the

parties to the Paris Agreement did not intend it to finally resolve all reparation issues andreserved their rights “with respect to the final settlement of German reparations”.46 In a seriesof bilateral treaties which the Allied powers concluded in 1947 with Romania, Hungary andBulgaria as former allies of Nazi Germany, these nations waived on their own behalf and on

behalf of their nationals all claims against Germany and German nationals, including those forloss and damage during the war.

41 B. Heß, “Kriegsentschädigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht”, in DeutscheGesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/Die Konstitutionalisierung derWelthandelsordnung (2003), p. 107 at p. 134.42 See I. Seidl-Hohenveldern, “Reparations After World War II”, in R. Bernhard (ed.) Encyclopedia of Public

International Law (2000), IV, p. 180.43 M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), p. 106; R.B. Lillich/B.Weston, International Claims: Their Settlement by Lump Sum Agreements, Part I: The Commentary (1975), p.11.44 See R. Dolzer, “The Settlement of War- Related Claims: Does International Law Recognize a Victim’s PrivateRight of Action? Lessons after 1945”, 20 Berkeley Journal of International Law (2002), p. 296 at pp. 313- 335;K.J. Partsch, “The Federal Republic of Germany”, Report of the Maastricht Seminar , Special No. 12 (11- 15March 1992), pp. 130- 143; C.P. Meade, “From Shanghai to Globocourt: An Analysis of the “ComfortWomen’s” Defeat in Hwang v. Japan”, 35 Vanderbilt Journal of Transnational Law (2002), p. 211 at pp. 238-

243.45 Article 2 (A) of the Paris Agreement 1946.46 Article 2 (B) (ii) of the Paris Agreement 1946.

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b) Peace Agreements with Japan51

The key difference between Japan and Germany as regards the settlement of post-war

reparations is the fact that the peace process with Germany occurred in several stages, whileJapan in 1951 concluded a formal peace treaty in San Francisco. This agreement again

contained provisions for all subjects typical of a modern peace treaty: territorial issues, political matters, financial and economic elements were included. The San Francisco PeaceTreaty of 1951 also recognized Japan’s obligation in principle to pay reparations to thegovernments of states Japan had invaded during the war. The treaty did not, however, go intofurther details, but left the determination of the exact reparations to subsequent bilateralagreements. The United States waived its right to reparations and so did Nationalist China andthe People’s Republic of China. Bilateral agreements with other states fixed relatively smallreparation sums. Most of these agreements disallowed claims by individuals against Japan52.Overall, the post-war reparation agreements with Japan showed clear characteristics of classicinterstate settlements with lump-sum payments that the recipient state would distribute, whileexcluding individual claims.

4. The Geneva Conventions of 1949 and the Additional Protocol I

In view of the cruelties committed in World War II, the law of international armedconflict was placed on an entirely new basis. The protection of the human victim was placedin the center of these efforts, expressed inter alia in the name for the new body of law thatemerged: international humanitarian law. With regard to the question of reparations, however,the four Geneva Conventions of 1949 brought nothing new. They contained no explicit

provision about compensation53. This provision came only in 1977 when the First Additional

Protocol to the 1949 Geneva Conventions and relating to the protection of victims ofinternational armed conflicts54 was adopted. It contained in its Article 91 a nearly literalreproduction of Article 3 of the Hague Convention IV Concerning the Laws and Customs ofWar on Land of 1907:

“Article 91 - ResponsibilityA Party to the conflict which violates the provisions of the Conventions or ofthis Protocol shall, if the case demands, be liable to pay compensation. It shall

be responsible for all acts committed by persons forming part of its armedforces.”

51 See R. Dolzer, “The Settlement of War-Related Claims: Does International Law Recognize a Victim's PrivateRight of Action? Lessons after 1945”, 20 Berkeley Journal of International Law (2002), p. 296 at pp. 311 et seq;C.P. Meade, “From Shanghai to Globocourt: An Analysis of the “Comfort Women’s” Defeat in Hwang v.Japan”, 35 Vanderbilt Journal of Transnational Law (2002), p. 211 at pp. 225-231; H.N. Scheiber, “TakingResponsibility: Moral and Historical Perspectives on the Japanese War- Reparations Issues”, 20 Berkeley

Journal of International Law (2002), p. 233 at pp. 235- 238.52 See L. Hein, “War Compensation: Claims against the Japanese Government and Japanese Corporations forWar Crimes”, in J. Torpey (ed.), Politics and the Past: On Repairing Historical Injustices (2003), p. 127 at p.132.53 There was only an implicit recognition of the duty to compensate, see Article 51 Convention I, Article 52Convention II, Article 131 Convention III, Article 148 Convention IV.54 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I), adopted on 8 June 1977 by the Diplomatic Conference on theReaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, entry intoforce 7 December 1979, 1125 U.N.T.S. 3.

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The Additional Protocol went into force in 1979. However, the application of the principle contained in the provision does not depend on ratification as it is seen to restatecustomary international law55. While some have argued that the purpose of Article 91 was tostrengthen individual rights, this can only be understood as reinforcing the position ofindividual victims as the ultimate beneficiaries of the compensation. There is no indication

that Article 91 sought to confer a procedural capacity upon individuals to claim thecompensation directly from the violating state56. The very fact that Article 91 was accepted bythe Conference in 1977 without much discussion as a mere restatement of customaryinternational law57 supports the view that there was no intention to venture onto new legalgrounds – and new legal grounds is what a right to a remedy for victims of violations ofinternational humanitarian law would undoubtedly have been58. Instead, Article 91 should beunderstood along the same lines as Article 3 of the Hague Convention IV of 1907, i.e. as notsupporting individual claims for compensation59.

What has been said with regard to Article 3 of the Hague Convention of 1907 applieseven more to the system of humanitarian law set up by the Geneva Conventions and the

subsequent Protocols: the provisions contained therein aim beyond the inter-state level at the protection of individuals60. However, while the protection of individuals throughhumanitarian law has become more and more developed on the level of primary rights overthe years, this has not been true for secondary, especially procedural rights. There still is no

judicial or quasi-judicial body with the explicit competence to consider complaints by victimsof violations of international humanitarian law61. As Liesbeth Zegveld has recently stated:

55 ICRC, Commentary, Article 91, p. 1053, para. 3645; L. Zegveld, “Remedies for victims of violations ofinternational humanitarian law”, 85 International Review of the Red Cross (2003), p. 497 at p. 506 footnote 32;W. Heintschel von Heinegg, “Entschädigung für Verletzungen des humanitären Völkerrechts“, in DeutscheGesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/Die Konstitutionalisierung der

Welthandelsordnung (2003), p. 1 at p. 59; Expert Opinion by F. Kalshoven, „Article 3 of the Convention (IV),respecting the laws and customs of war on land“, in H. Fujita, I. Suzuki, K. Nagano (eds.), War and the Rights of

Individuals (1999), p. 31 at p. 32 who cites decisions of the International Military Tribunals at Nuremberg andTokyo which had already considered the provisions of the Hague Convention IV (1907) to be part ofinternational customary law.56 L. Zegveld, “Remedies for victims of violations of international humanitarian law”, 85 International Review ofthe Red Cross (2003), p. 497 at p. 507; also C. Tomuschat, “Reparation for Victims of Grave Human RightsViolations”, 10 Tulane Journal of International and Comparative Law (2002); p. 157 at p. 179.57 L. Zegveld, “Remedies for victims of violations of international humanitarian law”, 85 International Review ofthe Red Cross (2003), p. 497 at p. 506, footnote 32, see also: M. Frulli, “When Are States Liable TowardsIndividuals for Serious Violations of Humanitarian Law? The Markovic Case”, 1 Journal of InternationalCriminal Justice (2003), p. 406 at p.416; F. Kalshoven, “State Responsibility for Warlike Acts of the ArmedForces: From Article 3 of the Hague Convention IV of 1907 to Article 91 of Additional Protocol I and Beyond”,

40 International and Comparative Law Quarterly (1991), p. 827 at pp.844 et seq.58 W. Heintschel von Heinegg, “Entschädigung für Verletzungen des humanitären Völkerrechts“, in DeutscheGesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/Die Konstitutionalisierung derWelthandelsordnung (2003), p. 1 at p. 39.59 J. de la Preux, ICRC Commentary, Article 91, p. 1053, para. 3645; C. Tomuschat, “Reparation for Victims ofGrave Human Rights Violations”, 10 Tulane Journal of International and Comparative Law (2002), p. 157 at p.178 et seq. 60

G. Abi-Saab, “The specificities of humanitarian law”, in C. Swinarski (ed.), Studies and Essays of

International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet , ICRC (1984), p. 269.61 R. Provost, International Human Rights and Humanitarian Law (2002), p. 50; J. K. Kleffner/L. Zegveld,“Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law”, Yearbookof International Humanitarian Law, vol. 3 (2000), p. 384, at 384. (also in: Collection of Documents for theExpert Meeting “Remedies for victims of violations of international humanitarian law”, Amsterdam Center for

International Law, 9-10 May 2003, p. 71 at 71.); similarly L. Zegveld, “Remedies for victims of violations ofinternational humanitarian law”, 85 International Review of the Red Cross (2003), p. 497 at pp. 497, 514; B.Kempen, “Der Fall Distomo: griechische Reparationsforderungen gegen die Bundesrepublik Deutschland”, H-J.

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“The IHL regime focuses solely on persons to be protected against the dangers of war, leavingopen the question of action when protection fails”62.

5. Regional Human Rights Courts and Commissions

Parallel to these developments in international humanitarian law, new systems of humanrights protection began to emerge, both on a global and a regional level. While globalinstruments such as the Universal Declaration of Human Rights of 194863 and theInternational Covenant on Civil and Political Rights of 196664 came without viableenforcement mechanisms65, regional human rights conventions in Europe66 and theAmericas67 contained a supervisory system of commissions and tribunals that was competentto receive complaints from individuals and to make decisions determining rights violationsand the duty to pay compensation68 that are binding upon member states69. For the particularcase of victims of war, significant difficulty arises from the fact that the competence of thesupervisory bodies was both established by and limited to human rights treaties while the

proper solution of the case might demand some form of application of humanitarian law as thelex specialis for situations of armed conflict70.

Human rights treaties often impose on the State Parties the obligation to provideeffective remedies before domestic courts which may extend to a possibility for victims to

Cremer (ed.), Tradition und Weltoffenheit des Rechts – Festschrift für Helmut Steinberger (2002), p. 179 at p.190.62 L. Zegveld, “Remedies for victims of violations of international humanitarian law”, 85 International Review ofthe Red Cross (2003), p. 497 at pp. 502, 507. See also the ICRC Commentary to the 1949 Geneva Conventions,

Pictet, IV, at 211 and 603: “The Convention does not give individual men and women the right to claimcompensation. The State is answerable to another contracting State and not to the individual […] It isinconceivable, at least as the law stands today, that claimants should be able to bring a direct action for damagesagainst the State in whose service the person committing the breach was working.”63 Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.64 International Covenant on Civil and Political Rights of 19 December 1966, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force 23 March 1976.65 This study does not further discuss the role of the Human Rights Committee under the International Covenanton Civil and Political Rights; for a detailed discussion of this topic see E. Klein, “Individual Reparation Claimsunder the International Covenant on Civil and Political Rights: The Practice of the Human Rights Committee”,in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 27.66 European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 asamended by Protocol 11 of 11 May 1994, 213 U.N.T.S. 221 and 155 E.T.S.67 American Convention of Human Rights of 22 November 1969, 1144 U.N.T.S. 123.68 See Article 41 of the European Convention for the Protection of Human Rights and Fundamental Freedoms asamended by Protocol 11; Article 63 (1) of the American Convention of Human Rights. However, both

provisions leave some discretion to the courts which may include compensation in the awards “if necessary” or“if appropriate” respectively. A famous case under the European Convention is McCann and Others v. theUnited Kingdom, Judgment of 27 September 1995, Series A, No. 324, para. 219, in which the European Court ofHuman Rights had denied a compensation award for the killing of three IRA members who had been gunneddown in Gibraltar. The Court determined that their killing was a violation of the right to life under theConvention but since the three victims were terrorists planning a bomb attack, the Court consideredcompensation inappropriate.69 Europe: See M. Pellonpää, “Individual Reparation Claims under the European Convention on Human Rights”,in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 109; Americas: SeeW.M. Reisman, “Compensation for Human Rights Violations: The Practice of the Past Decade in the Americas”,

in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 63; J.M. Pasqualucci,The Practice and Procedure of the Inter- American Court of Human Rights (2003), p. 230.70 This problem will be addressed below in more detail.

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claim compensation when their rights under the treaty are infringed 71. In addition, afterexhausting domestic remedies, individuals are frequently given the right to claim suchcompensation in person before courts established by the respective treaties72.

6. Ad-hoc Claims Commissions

Claims Commissions have traditionally been a more successful way for individuals toassert their claims for compensation than national courts and other international fora73. Claimscommissions are special arbitral tribunals which are usually set up by bilateral or multilateraltreaty after revolutions and conflicts that led to destruction and the taking of property. Theyregularly give private natural and legal persons the exceptional opportunity to bring anindividual claim for compensation against a state.

There are many examples of such commissions over the course of the last century. TheMixed Claims Commissions set up after World War I have already been mentioned above.Another famous example is the Iran-U.S. Claims Tribunal which was set up by the Algiers

Accords between the U.S. and Iran in 1981 in order to resolve the crisis in relations betweenIran and the U.S. arising out of the detention of U.S. nationals at the U.S. Embassy in Tehranthat commenced in November 1979 and led to the subsequent freezing of Iranian assets by theU.S.74 The Tribunal has jurisdiction inter alia to decide claims of individuals of one stateagainst the other state, which arise out of debts, contracts, expropriations or other measuresaffecting property rights. The U.S. agreed “to terminate all legal proceedings in United Statescourts involving claims of United States persons and institutions against Iran and its stateenterprises, to nullify all attachments and judgments obtained therein, to prohibit all furtherlitigation based on such claims, and to bring about the termination of such claims through

binding arbitration”75. Two other claims commissions deserve to be mentioned in particular:the United Nations Compensation Commission (UNCC) and the Eritrea-Ethiopia ClaimsCommission76.

71 See e.g. Articles 2 (3), 9 (5), 14 (6) of the International Covenant on Civil and Political Rights; Article 14 ofthe Convention against Torture; Article 6 of the Convention on the Elimination of Racial Discrimination; Article5 (5) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended

by Protocol 11. For some of these norms, it has been controversial whether they give a right to compensationagainst the state or whether the state’s obligations only go as far as providing a legal remedy that could lead tocompensation if successful, see M. Traßl, Die Wiedergutmachung von Menschenrechtsverletzungen imVölkerrecht (1994), pp. 38 et seq; C. Tomuschat, Human Rights (2003), p. 298; R. Pisillo- Mazzeschi,“International Obligations to Provide for Reparation Claims?”, in A. Randelzhofer/C. Tomuschat (eds.), State

Responsibility and the Individual (1999), p. 149 at pp. 162- 165.72 Article 41 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as

amended by Protocol 11; Article 63 (1) of the American Convention on Human Rights. See further D. Shelton, Remedies in International Human Rights Law (1999).73 E.-C. Gillard, “Reparations for violations of international humanitarian law“, 85 International Review of the

Red Cross (2003), p. 529 at p. 539.74 See P. Malanczuk, “The Iran- United States Claims Tribunal in The Hague- Some Reflections on a UniqueInstitution of International Dispute Settlement Moving towards the End of its Work”, in: V. Götz/ P. Selmer/ R.Wolfrum (eds.), Liber amicorum Günther Jaenicke- Zum 85. Geburtstag (1998) , p. 221 at pp. 223- 230.75 For the Algiers Accords see the IUSCT website http://www.iusct.org/background-english.html.76 Other important examples are the (residential) property commissions in Bosnia-Herzegovina and Kosovo. TheCommission for Real Property Claims of Displaced Persons and Refugees in Bosnia and Herzegovina (CRPC)was set up by the General Framework Agreement for Peace in Bosnia and Herzegovina concluded between theFormer Republic of Yugoslavia, Croatia and Bosnia-Herzegovina in November 1995 (the “Dayton Agreement”,Article VII). The Agreement stipulated that “all refugees and displaced persons have the right freely to return to

their homes of origin. They shall have the right to have restored to them property of which they were deprived inthe course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.”(Article I of Annex 7). The Commission does not award compensation, but makes final and legally binding

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a) United Nations Compensation Commission (UNCC)77

The UNCC was created in 1991 by Security Council Resolution 687, which established

Iraq’s liability “under international law, for any direct loss, damage, including environmentaldamage and the depletion of natural resources, or injury to foreign Governments, nationalsand corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait”78. Thiswording leaves no doubt that the Commission does not have to establish that the injuries werecaused by a violation of the ius in bello; it suffices that they are a result of Iraq’s violation ofthe ius ad bellum

79.The Commission represented a novel development80. It was the first time that the UN, by

itself, organized the reparation regime in the aftermath of an armed conflict and apportionedthe liability of the Iraqi state. This constituted a departure from the traditional doctrineaccording to which liability under international law for war-related damages was an inter-statematter. While there had been earlier claims commissions where individuals could bring claims

against a state, such as the Iran-U.S. Claims Tribunal, these earlier Commissions and theindividuals’ rights to bring claims had been established through agreement between the statesinvolved that chose to exercise their right to diplomatic protection in this particular way. Withthe UNCC, it was the UN and not states that empowered individuals to assert claims81.

Naturally, the UNCC had to find a way to treat claimants as individuals while avoiding being paralyzed by the sheer number of cases and individual claimants. The compromisefound was that individual claims had to be collected by the home states of the claimants andwere then submitted by these states to the UNCC. No natural person had the right to submitclaims directly to the Commission82; private legal persons could only do so under certaincircumstances83. However, there was a safeguard to protect individuals who were not in the

position to have their claims submitted to the UNCC: Palestinians and stateless persons were

specifically named as examples. For these persons, the UNCC Governing Council appointed

decisions on the ownership of property in Bosnia-Herzegovina; see further H. van Houtte, “Mass property claimresolution in a post-war society: the Commission for Real Property Claims in Bosnia and Herzegovina (CRPC)”,48 International and Comparative Law Quarterly (1999), p. 625. UNMIK in Kosovo set up the Housing andProperty Directorate and the Housing and Property Claims Commission (UNMIK Regulation 1999/23) whichhave the task to resolve the numerous disputes over residential property rights in Kosovo; see further A.Dodson/A. Heiskanen, “Housing and Property Restitution in Kosovo”, in S. Lecke (ed.), Returning Home:

Housing and Property Restitution Rights and Internally Displaced Persons (2003).77 See M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002); N. Wühler, “TheUnited Nations Compensation Commission”, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility andthe Individual (1999), pp. 213- 229; A. Gattani, “The UN Compensation Commission: Old Rules, New

Procedures on War Reparations”, 13 European Journal of International Law (2002), pp. 161- 181; V.Heiskanen, “The United Nations Compensation Commission”, 296 Recueil des Cours (2002), pp. 255- 397; D.D. Caron/ B. Morris, “The UN Compensation Commission: Practical Justice, not Retribution”, 13 European

Journal of International Law (2002), pp. 183- 199.78 UN Security Council Resolution 687 (1991), 8 April 1991, para. 16.79 E.-C. Gillard, “Reparations for violations of international humanitarian law“, 85 International Review of the

Red Cross (2003), p. 529 at p. 541; M. Eichhorst, Rechtsprobleme der United Nations CompensationCommission (2002), p. 89; R. Provost, International Human Rights and Humanitarian Law (2002), p.51; W.Heintschel von Heinegg, “Entschädigung für Verletzungen des humanitären Völkerrechts“, in DeutscheGesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/Die Konstitutionalisierung derWelthandelsordnung (2003), p. 1 at p. 24.80 See M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), p. 195; V.Heiskanen, “The United Nations Compensation Commission”, 296 Recueil des Cours (2002), p. 255 at p. 390.81 See M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), p. 198.82 Neither would individuals normally appear before the Commission in the course of the proceedings.83 See Article 5 (3) UNCC Provisional Rules for Claims Procedure.

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bodies that could submit claims on their behalf, namely the UN Relief and Works Agency forPalestine Refugees in the Near East (UNRWA), the UN High Commissioner for HumanRights (UNCHR), and the International Committee of the Red Cross (ICRC)84. By bundlingthe cases on the level of states, they did not cease to be individual claims 85. States wereobliged to distribute the compensation according to the awards made and not on the basis of

their discretion as it had the traditional solution in reparation cases.The UNCC has been faced with over 2.6 millions claims seeking a total of nearly $ 350

billion in compensation, which almost all came from individual claimants. Given the limitedresources the Commission has at its disposal it was clear that it could in the end only provide,as Norbert Wühler put it, “‘rough’ justice for the claimants as a whole, rather than ‘precise’

justice in each individual case”86.

b) Eritrea-Ethiopia Claims Commission (EECC)

The EECC was established in 2000 by the Eritrea-Ethiopia Peace Agreement87. This

Commission has the exceptional competence to decide claims arising out of violations ofinternational humanitarian law. The Peace Agreement stated, that its task was “to decidethrough binding arbitration all claims for loss, damage and/or injury by one Governmentagainst the other, and by nationals (including both natural and juridical persons) of one partyagainst the Government of the other party or entities owned or controlled by the other partythat are (a) related to the conflict [...], and (b) result from violations of IHL, including the1949 Geneva Conventions, or other violations of international law”88. It is estimated thatapproximately 400,000 claims have been submitted by individuals of the two states89.

84 Governing Council Decision No. 5, 18 October 1991, UN Doc. S/AC.26/1991/5. The ICRC was subsequently

replaced by the UN Development Programme (UNDP), N. Wühler, “The United Nations CompensationCommission”, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 213 at

p. 216; V. Heiskanen, “The United Nations Compensation Commission”, 296 Recueil des Cours (2002), p. 255at p. 292. It has been argued that this provision strengthened the concept of erga omnes norms which accordingto the ICJ in the Barcelona Traction Case (I.C.J. Rep. 1970, p. 3 at p. 32) are “the concern of all States. In viewof the importance of the rights involved, all States can be held to have a legal interest in their protection.” In fact,Governing Council Decision No. 5 seems to reiterate this point when it states: “The international community,represented by the UNCC, bears the overall responsibility for protecting the interests of the above-mentionedindividuals.”; see further M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002),

p. 203 et seq. 85 S. Kadelbach, “Staatenverantwortlichkeit für Angriffskriege und Verbrechen gegen die Menschlichkeit”, inDeutsche Gesellschaft für Völkerrecht (ed.), Entschädigung nach bewaffneten Konflikten/DieKonstitutionalisierung der Welthandelsordnung (2003), p.63 at p. 91; similarly A. Gattani, „The UN

Compensation Commission: Old Rules, New Procedures on War Reparations“, 13 European Journal of International Law (2002), p. 161 at p. 170; V. Heiskanen, “The United Nations Compensation Commission”,296 Recueil des Cours (2002), p. 255 at p. 290.86 N. Wühler, “The Role of Ad-Hoc Claims Commissions – Background Report –“, in Collection of Documentsfor the Expert Meeting “Remedies for victims of violations of international humanitarian law”, AmsterdamCenter for International Law, 9-10 May 2003, p. 50 at p. 51. Claims Commissions typically also apply what

Norbert Wühler called the “lesser or more ‘relaxed’ standard of proof [...] in a mass claims context where it isnormally sufficient that claims by individuals are made credible rather than proven as would be the standard in a

judicial or arbitral setting”, Id. at p. 57.87 Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government ofthe State of Eritrea, 12 December 2000, 40 International Legal Materials (2001), p. 260. For latest developmentssee http://www.pca-cpa.org/ENGLISH/RPC/#Eritrea-Ethiopia%20Claims%20Commission (last visited March2004).88 Article 5 (1) of the Peace Agreement.89 L. Zegveld, “Remedies for victims of violations of international humanitarian law”, 85 International Review ofthe Red Cross (2003), p. 497 at p. 522.

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honor, life, property and religious convictions95. The court stressed that thisobligation, which is addressed to occupying forces, is part of jus cogens96.

The court concluded that, where a state acts in breach of a rule of jus cogens,that state loses its right to invoke sovereign immunity97. It stated that this rule,which was initiated by the International Military Tribunal at Nuremberg98, was

justified for the following reasons:a) When a state is in breach of jus cogens rules, it cannot bona fide expect

that it will be granted immunity privileges. Therefore, it is assumed that it tacitlywaives the privilege (constructive waiver through the operation of internationallaw).

b) The acts of a state that violate jus cogens norms do not have the characterof sovereign acts. In such cases it is considered that the accused state did not actwithin the ambit of its capacity as a sovereign.

c) Acts contrary to jus cogens norms are null and void, and cannot constitutea source of legal rights or privileges, such as the claim to immunity, according tothe general principle of law ex injuria jus non oritur .

d) The recognition of immunity by a national court for an act that is contraryto jus cogens would be tantamount to collaboration by that national court in anact that is strongly condemned by the international community.

e) The invocation of immunity for illegal acts that were perpetrated inviolation of a rule of jus cogens would constitute an abuse of that right.

f) Since the principle of territorial sovereignty is superior to the principle ofstate immunity, a state that violates the former principle by illegally occupyingforeign territory cannot invoke the principle of sovereign immunity for actscommitted during that illegal occupation99.”

The court reasoned that, although the atrocities had been committed bymembers of the German armed forces, they could not be characterized as acts ofsovereignty because they were perpetrated in violation of jus cogens norms100.”101

In its decision of 4 May 2000, the Hellenic Supreme Court upheld this decision and its

reasoning, adding that it was an established principle in the international law on sovereign

95 See JK v. Public Prosecutor, 87 ILR 93 (Neth. Sup. Ct. 1981) (holding that the killing of a civilian by amember of the occupying forces was a breach of Article 46 of the Hague Regulations).96 Judgment at 12. The military tribunals formed at the end of World War II asserted the customary obligation ofthe occupant commander to ensure the welfare of the civilian population within his area of authority, andstressed the strict liability attributed to executive commanders for breaching this obligation. See In re Yamashita,

327 U.S. 1, 16 (1946), where the Supreme Court ruled that Articles 1 and 49 of the Hague Regulations imposed"an affirmative duty to take such measures as were within [an executive commander's] power and appropriate inthe circumstances to protect prisoners of war and the civilian population." See rulings to the same effect inUnited States v. Von Leeb ("The High Command Case"), 11 TRIALS OF WAR CRIMINALS BEFORE THE

NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 462, 544-45, 632(1950); United States v. List ("The Hostages Case"), id . at 757, 1260.97 In such a case, the court determined, the state in question has declined to exercise its immunity privilege.Judgment at 12.98 Id. at 13.99 Id. 100 That is, Article 46 of the Hague Regulations, supra note 6. See Judgment at 14-15.101 I. Bantekas, “Prefecture of Voiotia v. Federal Republic of Germany, Case No. 137/1997, Court of FirstInstance of Leivadia, 30 October 1997”, 92 American Journal of International Law (1997), p. 765 at pp. 766-

767. The references included are those of the commentator. For a positive analysis of the case see M. Gavouneli,“War Reparation Claims and State Immunity”, 50 Revue Hellénique de Droit International (1997), p. 595 at pp.602- 608.

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immunity that a state could not claim immunity if the acts in question are torts committed inthe forum state102. The claimants subsequently tried execution of the awards against Germaninstitutions in Greece such as the Goethe Institute Athens and the German ArchaeologicalSchool generating political and diplomatic tensions. Execution in Greece ultimately failed,however, because the claimants required an authorization by the Greek Minister of Justice

that was denied. Lawsuits against this denial were unsuccessful even though they had beencarried as far up as to the European Court of Human Rights103. In its judgment of 17September 2002, the Special Supreme Court decided on a parallel case that Greek courts didnot have the authority to try cases on reparations for victims of the German occupation as infact no state could be tried by the court of another state for reparations of any kind both attimes of war and peace104.

When the claimants sought to enforce their awards in Germany, they were unsuccessfulthrough all instances. The German Federal Supreme Court105 ruled that the acts in questionwere acts de jure imperii106 and therefore covered by sovereign immunity. The Courtrecognized various tendencies to restrict sovereign immunity, inter alia for violations of juscogens, but held that they were not generally accepted. Therefore, the Greek judgment did not

have any legal effects in Germany.The Court went on to examine whether the Greek claimants could successfully demand

compensation from Germany under international or German law. The Court did not find suchindividual claims per se excluded or subsumed by the various agreements following WorldWar II which addressed the question of reparations. The Court further concluded thatinternational law at the time of the incident, including Article 3 of the Hague Convention IVof 1907, did not recognize individual claims for compensation in cases of a violation of thelaws of war by a state. Rather, to demand such compensation fell within the exclusive domainof states and the mechanisms of diplomatic protection. Neither was there a basis for suchclaims under German national law. The Court held that in wartime, the application of generaltort law is suspended and replaced by the special regime of the laws of war.

b) Forced Labor

Another well-known basis for judicial claims is forced or slave labor. This phenomenonhad existed in earlier wars as well107, but it grew to new dimensions during World War II.Germany for example recruited laborers first from the occupied western states, e.g., France,Belgium and the Netherlands, and then huge numbers from Poland and Russia. Some estimate

102 Areios Pagos (Hellenic Supreme Court) Prefecture of Voiotia v. Federal Republic of Germany, Case No.11/2000, Judgment of 4 May 2000, 95 American Journal of International Law (2001), p. 198. See the critique

by R. Dolzer, “Der Areopag im Abseits”, Neue Juristische Wochenschrift 2001, p. 3525; see also A. Gattini,“To what Extent are State Immunity and Non- Justiciability Major Hurdles to Individuals’ Claims for WarDamages?”, 1 Journal of International Criminal Justice (2003), p. 348 at pp. 356- 362.103 European Court of Human Rights, Kalogeropoulou and others v. Greece and Germany, Decision on theAdmissibility, No. 59021/00, 12 December 2002, available athttp://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=49&Action=Html&X=302123422&Notice=0&Noticemode=&RelatedMode=0 (last visited March 2004).104 DIKE Int 2002, p. 1282; see A. Gattini, “To what Extent are State Immunity and Non- Justiciability MajorHurdles to Individuals’ Claims for War Damages?”, 1 Journal of International Criminal Justice (2003), p. 348 at

pp. 360 et seq.105 German Federal Supreme Court (BGH), Distomo, BGH – III ZR 245/98, 26 June 2003.106 This did also exclude the applicability of the 1968 Brussels Convention on jurisdiction and the enforcementof judgments in civil and commercial matters, see Article 1 (1) of the Convention.107 The Versailles Peace Treaty contained a special provision according to which reparations included “damagescaused to civilians by being forced by Germany or her allies to labour without just remuneration.”, Article 232Annex I.

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that fourteen million forced laborers were deported to Germany during the course of the war.Many of those interned in the concentration camps were forced to work for the German warmachinery and treated terribly. Slave labor was also extensively used by Japan. Claimantssued both states in national as well as U.S. courts.

aa) Claims before courts in Germany108

German courts have faced a number of cases where individuals claimed reparations for

wartime forced labor both from the German government and private German corporations. Inone of these cases, the Regional Court ( Landgericht ) in Bonn addressed the question at theFederal Constitutional Court whether international law only permitted to assert reparationclaims on the basis of an international agreement. The Constitutional Court in its 1996decision held the request for an opinion for procedurally impermissible but made severalobservations by means of an obiter dictum109. First, it held that with respect to internationallaw as it stood at the end of World War II, war victims were not entitled to claim reparations

themselves, but only their state of nationality. Secondly, however, international law did not prohibit a state from enacting domestic law which affords individuals a right to compensationfor war related damages such as had been enacted by Germany pursuant to post-waragreements.

Subsequently, Regional Courts in Bonn110 and Bremen111 ruled that valid claims basedon tort and unjust enrichment may principally be brought by forced laborers under Germanlaw and that their claims had not been waived in bilateral treaties. However, only one plaintifffinally succeeded before the Bonn Regional Court; in all other cases, the Court held, the

plaintiffs had already recovered compensation under the German statutory reparation scheme.As for the remaining plaintiff, the Court ruled that his claim was recognized and deferred inthe London Debt Agreement. With the 2 + 4 Treaty, the deferral had been lifted and the claimwas timely.

In December 1998, the Regional Appeals Court (Oberlandesgericht ) in Colognereversed the judgment of the Bonn Regional Court and ordered that the claim be dismissed 112.It stated that the claims of the plaintiff were not covered by the existing statutes and that theLondon Debt Agreement did not intend to establish such a claim. Having reviewed the fullrange of German statutes and lump-sum agreements, the Court held that these instruments as awhole were intended to be a final settlement with respect to all victims. However, the Courtexplained that this reasoning applied only to claims against the German State but left claimsagainst private entities and persons intact.

bb) Claims before courts in Japan

108 See A. Randelzhofer/O. Dörr, Entschädigung für Zwangsarbeit? Zum Problem individueller Entschädigungsansprüche von ausländischen Zwangsarbeitern während des Zweiten Weltkriegs gegen die

Bundesrepublik Deutschland (1994).109 BVerfGE 94, 315.110 Regional Court Bonn, Judgment of 5 November 1997, No. 1 0 134/92.111 Regional Court Bremen, Judgement of 2 June 1998, No. 1-0-2889/90, available at http://www.ns-zwangsarbeiterlohn.de/zwangsar/dokumentation/4_3_prozesse/downloads/bvg_urteil/98_07_02_bremen.rtf (last

visited March 2004)112 Regional Appeals Court Cologne, Judgement of 3 December 1998, No. 7 U 222/97, 52 Neue JuristischeWochenschrif t (1999), p. 1555.

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In Japan, several actions brought by ex-prisoners of war against Japan demandingcompensation for forced labor during World War II, were unsuccessful, because the courtsheld that the norms of international law on which the plaintiffs had based their claims,especially Article 3 of the Hague Convention IV of 1907, did not grant individuals a right toclaim compensation directly from a foreign government113.

In April 2002, however, fifteen Chinese men received an award of over US$1.28 millionagainst the Mitsui Mining Company in the Fukuoka District Court on the grounds that theyhad been forcibly taken to Japan to work in the company’s coal mines during World War II114.

cc) Claims before U.S. courts

Parallel to attempts to bring their claims to national courts in Germany and Japan, formerslave laborers also sued in U.S. courts.

Against Germany115

The class-action lawsuits were directed not against the German state but rather against

German companies who had used slave labor in World War II. An example is the case Burger-Fischer et al. v. Degussa AG and Lichtman et al. v. Siemens AG

116, in which plaintiffssought damages from the German companies Degussa and Siemens, relying on customaryinternational law and German law.

The court found that the defendants’ actions had violated customary international law. Inaddition, the court referred to authoritative German scholars having “provided declarationsestablishing that defendants’ alleged conduct violated German civil law in effect at the timethey engaged in that conduct”.

The Court then rejected the argument that the claims against German companies weretypical claims of individuals against private entities. The Court pointed to the fact that theaction at hand was but one of many cases where German corporations were sued before U.S.courts at the time. Viewed in their entirety, the Court went on, plaintiffs were in fact invitingU.S. courts to try their hands at refashioning the reparations agreements which the UnitedStates and other World War II combatants117. The question whether Germany had lived up toits obligation to adequately compensate victims of Nazi oppression, the Court concluded, wasa “political question”118 which it must decline to determine:

113 See the references in H. Kasutani, “Japan”, 2 Yearbook of International Humanitarian Law (1999), pp. 389-390; M. Igarashi, “Post- War Compensation Cases, Japanese Courts and International Law”, 43 The Japanese

Annual of International Law (2000), p. 45 at p. 47.114 “Victims of Germ Warfare Protest over Japanese Court Ruling”, People’s Daily, 28 August 2002.115 See A. Ramasastry, “Corporate Complicity: From Nuremberg to Rangoon, An Examination of Forced LaborCases and Their Impact on the Liability of Multinational Corporations”, 20 Berkeley Journal of International

Law (2002), p. 91 at pp. 119- 127; D.L. Christopher, “ Jus Cogens, Reparation Agreements, and Holocaust SlaveLabor Litigation”, 31 Law and Policy in International Business (2000), p. 1227 at pp. 1230 et seq.116 Burger-Fischer et al. v. Degussa AG and Lichtman et al. v. Siemens AG, 65 F. Supp. 2d 248 (D.N.J. 1999).For discussion of the case see K. C. Ryf, “ Burger- Fischer v. Degussa AG: U.S. Courts allow Siemens andDegussa to Profit from Holocaust Slave Labor”, 33 Case Western Reserve Journal of International Law (2001),

pp. 155-178.117 Similarly K. Doehring, “Reparationen für Kriegsschäden”, in K. Doehring/B.J. Fehn/H.G. Hockerts (eds.),

Jahrhundertschuld, Jahrhundertsühne: Reparationen, Wiedergutmachung, Entschädigung für

nationalsozialistisches Kriegs- und Verfolgungsunrecht (2001), p. 9 at p. 41.118 On the “political question doctrine“ see Judge Adams’ majority opinion for a Three-Judge District Court,

Atlee v. Laird , 347 F. Supp. 689 (E.D. Pa.. 1972), aff’d, 411 U.S. 911, 93 S. Ct. 1545, 36 L. Ed. 2d 304 (1973);

Justice Brennan in Baker v. Carr , 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); K. C. Ryf, “ Burger-Fischer v. Degussa AG: U.S. Courts allow Siemens and Degussa to Profit from Holocaust Slave Labor”, 33 CaseWestern Reserve Journal of International Law (2001), p. 155 at pp. 172- 174.