individualright bank schwager

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- Work in Progress. Version August 2005 - An Individual Right to Compensation for Victims of Armed Conflicts? By Elke Schwager and Roland Bank “There will be no justice without justice for the victims.” 1 - I. Introduction 3 II. Claims against States 6 1. Law of Armed Conflict 6 a) Reparation for Violations of International Humanitarian Law 7 (1) Traditional Approach: No Individual Rights under International Humanitarian Law 8 (2) Mixed Approach: Differentiation between Primary and Secondary Rights 11 (3) Individualised Approach: Individual Rights to Compensation 12 (a) Art. 3 of the Hague Convention IV 12 (b) Individual Rights as Secondary Rights in Peace Treaties and Security Council Resolutions 14 (c) Individual Rights as Secondary Rights in International Jurisprudence 17 (4) Discussion of the various approaches 19 (a) The wording of norms of international humanitarian law 19 (b) The interpretation of norms of international humanitarian law in context and in the light of its object and purpose 20 (c) No individual right without an individual remedy? 24 (d) Secondary right 25 b) Reparation for Violations of the Ius ad Bellum 28 2. International Human Rights Law 32 a) Applicability of Human Rights Law in Situations of Armed Conflict 32 b) Norms Explicitly Granting an Individual Right to Compensation 33 c) General Obligation to Compensate for Violations under the Heading of the Right to an Effective Remedy 34 d) Applicability of the Norms providing for Compensation in Times of an Armed Conflict 36 3. National Law 36 a) Claims based on Violations of International Law 37 b) State Liability, Tort Law 38 1 Statement by Fiona McKay, Redress, on behalf of the Victims Rights Working Group, on the occasion of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference), 16 June 1998 (published on the internet: http://www.un.org/icc/speeches/616mck.htm).

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Page 1: IndividualRight Bank Schwager

- Work in Progress. Version August 2005 -

An Individual Right to Compensation for Victims of Armed

Conflicts?

By Elke Schwager and Roland Bank

“There will be no justice without justice for the victims.”1 -

I. Introduction 3

II. Claims against States 6 1. Law of Armed Conflict 6

a) Reparation for Violations of International Humanitarian Law 7 (1) Traditional Approach: No Individual Rights under International Humanitarian Law 8 (2) Mixed Approach: Differentiation between Primary and Secondary Rights 11 (3) Individualised Approach: Individual Rights to Compensation 12

(a) Art. 3 of the Hague Convention IV 12 (b) Individual Rights as Secondary Rights in Peace Treaties and Security Council Resolutions 14 (c) Individual Rights as Secondary Rights in International Jurisprudence 17

(4) Discussion of the various approaches 19 (a) The wording of norms of international humanitarian law 19 (b) The interpretation of norms of international humanitarian law in context and in the light of its

object and purpose 20 (c) No individual right without an individual remedy? 24 (d) Secondary right 25

b) Reparation for Violations of the Ius ad Bellum 28 2. International Human Rights Law 32

a) Applicability of Human Rights Law in Situations of Armed Conflict 32 b) Norms Explicitly Granting an Individual Right to Compensation 33 c) General Obligation to Compensate for Violations under the Heading of the Right to an Effective

Remedy 34 d) Applicability of the Norms providing for Compensation in Times of an Armed Conflict 36

3. National Law 36 a) Claims based on Violations of International Law 37 b) State Liability, Tort Law 38

1 Statement by Fiona McKay, Redress, on behalf of the Victims Rights Working Group, on the occasion of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference), 16 June 1998 (published on the internet: http://www.un.org/icc/speeches/616mck.htm).

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4. Special Situation of Mass Violations 42 a) Practice of States and International Bodies 43 b) Some reflections on legal arguments for a modification of the contents of individual reparations

claims in mass claims situations 45

III. Claims against Non-State Actors 48

IV. Conclusions 48

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I. Introduction

Throughout the last years, there has been an increasing attention to the issue of compensation

for victims of human rights violations and for civilian victims of armed conflict on the

scholarly level2 and on the level of intergovernmental cooperation, for instance in the UN

Commission on Human Rights3 as well as in the work of human rights treaty bodies.

Moreover, individuals who themselves - or whose family members - have been victims of

human rights or humanitarian law violations frequently have instituted procedures before

courts of different jurisdictions in order to claim monetary compensation.4 Last but not least,

the Statute of the International Criminal Court provides in its Art. 75 for a possibility that the

Court orders compensation to be paid by the perpetrator to victims.

Why is compensation so important? As in contrast to criminal prosecution of atrocities where

the focus necessarily lies on the perpetrator, compensation puts the suffering of victims into

the focus of attention. It can support victims to a certain extent in their efforts to rebuild their

lives, be it on the financial, emotional or legal plain – even if the suffering by financial awards

never can balance the suffering caused by serious atrocities. From the viewpoint of the victim

compensation is not limited to alleviating the economical consequences of a violation of its

rights: Paying compensation also constitutes an acknowledgement that an injustice was

committed by the violator of the victim’s rights. This may not only strengthen the legal

position of a victim but also constitutes a first element in a process of reconciliation with the

past which in turn is one of the most fundamental elements for restoring peace in a war-torn

society or in post-war bi- or multinational relations.

On another level, effective reparation regimes, in particular in the form of financial

2 See for instance M. Igarashi, "Post-War Compensation Cases, Japanese Courts and International Law", 43 Japanese Annual of International Law (2000), p. 45; J.K. Kleffner /L. Zegveld, "Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law", 3 Yearbook of International Humanitarian Law (2000), p. 384; P. d'Argent, Les réparations de guerre en droit international public, 2002; W. Heintschel von Heinegg, "Entschädigung für Verletzungen des humanitären Völkerrechts", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 1; B. Heß, "Kriegsentschädigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 107; S.H. Bong, "Compensation for Victims of Wartime Atrocities", 3 JICL (2005), p. 187; L. Lee, “The Right of Victims of War to Compensation”, in: Essays in Honour of Wang Tieya, R.St.J. Macdonald (ed.), 1993, p. 489; D. Shelton, Remedies in International Human Rights Law, 1999; C. Tomuschat, "Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International Law", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 1; L. Zegveld, "Remedies for victims of violations of international humanitarian law", 85 IRRC (2003), p. 497; R.P. Mazzeschi, "Reparation Claims by Individuals for State Breaches of Humanitarian Law and Human Rights: An Overview", 1 JICL (2003), p. 339. 3 See, e.g., The Right to Restitution, Compensation and Rehabilitation for victims of gross violations of human rights and fundamental freedoms, Final Report of the Special Rapporteur Mr. Theo van Boven, UN Doc. E/CN.4/Sub.2/1993/, 2 July 1993. 4 See, e.g., most recently the court judgement on actions prepared by family members of Iraqi civilians killed by British troops during the military intervention against Iraq in 2003, High Court of Justice QB, Al Skeinei v The Secretary of State for Defence, 14 December 2004, [2004] EWHC 2911 (Admin).

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compensation, may contribute to ensuring better compliance with the norms protecting

individuals in wartime. The fact that reparation usually presupposes a breach of international

law further strengthens this connection. Of course, reparations by definition only come into

play once a violation has already taken place, but a secondary right to reparation nevertheless

gives additional recognition to the primary right it is related to and can to some extent deter

future violations.5

All persons suffering damage and loss as a consequence of an armed conflict, and not only

victims of a violation of a legal norm, might need support. In this analysis, we restrict the

issue of compensation nevertheless to victims of a violation of a legal rule; as such an

infringement is usually the condition for an enforceable right to compensation.

The question of compensation for victims of armed conflict has gradually developed since the

beginning of the 20th century but is far from having arrived at any conclusive situation even

regarding most fundamental questions. The most central of these questions is whether there is

an individual right to compensation for a violation of the laws of an armed conflict or human

rights law in the situation of an armed conflict. The traditional concept of international law

was that a breach of international law would prompt a right to reparation only on part of the

state against whom the violation took place. This approach is based on the concept that only

states are subjects of international law. This concept was prevailing with a view to Germany’s

reparation obligations towards the victorious states both after World War I (in the “Treaty of

Versailles”) and after World War II (in the Potsdam Agreement of the Allied Powers). Even

when (Western) Germany established a scheme for individual payments to certain victims of

Nazi persecution this measure was not regarded as complying with a legal but rather with a

moral obligation. An individual right to a payment was not considered to be a question of

international law but one of national law: according to this understanding Germany created

rights for individuals to compensation, for instance, in the Federal Law on Compensation.6

Even as far as those rules in international law on armed conflict which have been recognised

as providing individual rights against infringements are concerned, an individual right to

compensation often is denied all the same.7 On the other hand, there is also state practice and

5 E.-C. Gillard, “Reparations for violations of international humanitarian law“, 85 IRRC (2003), p. 529 at p. 530; 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. 20; E. Klein, “Individual Reparation Claims under 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 at p. 27; A.H. Robertson, “Implementation System: International Measures”, in L. Henkin (ed.), The International Bill of Rights (1981), p. 357. 6 Bundesentschädigungsgesetz in der Fassung des BEG-Schlussgesetzes vom 14 September 1965, BGBl. 1965 I, 1315. 7 See most recently, the German Federal Constitutional Court, decision of 28 June 2004 (2 BVR 1379/01) (published on the internet: www.bverfg.de/entscheidungen/rk20040628_2bvr137901.html).

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academic arguments in favour of an individual right to compensation in such cases.

At the same time, since the aftermath of World War II, international law has seen the

emergence of the concept of human rights whereby rights were systematically accorded

immediately to individuals under international law. In the field of human rights, where there

can be no doubt about the individual nature of primary rights, we will argue that it is difficult

to escape the conclusion that an infringement of an individual right prompts an individual

right to compensation as a secondary right or – depending on the wording of the respective

provisions and their interpretation – under the heading of the right to an effective remedy

expressly protected in a number of human rights treaties.8

Another question is in how far this also applies in situations of armed conflicts. This is less a

question of whether human rights are applicable at all in situations of armed conflicts: it can

hardly be denied that human rights obligations do apply also in armed conflicts, interpreted,

however, in the light of international humanitarian law. As a consequence of this argument on

the interpretation on human rights law in war times the question arises whether and how the

situation under international humanitarian law impinges on an eventual individual right to

compensation under human rights law.

We restrict our analysis to the question of the material right of individuals. The question of

the enforcement of the eventual right, i.e. the procedural capacity to exercise the right, gives

rise to intricate questions under international law.9 For the purpose of this article, however,

these questions can and will be left aside to a large extent: a right under international law

exists independently of the procedural capacity to enforce it under international law.10

The aim of this article is to provide a critical analysis of the practice of states and international

bodies as well as views presented in academia with regard to the question whether there is an

individual right to compensation. The different approaches in the law of armed conflict as

8 In particular, Art. 13 ECHR. 9 On the procedural side, it has been notoriously difficult for individual victims to sue foreign states for violations of humanitarian law or human rights law. International forums outside the human rights courts do not provide for a possibility of standing of individuals and national forums used to decline jurisdiction on eventual violations by other States mainly due to the doctrine of state immunity. Also in those respects, practice of the past two decades has broken out a number of bricks in the wall which used to shield violating states from court proceedings for compensation. In particular, United States courts have frequently issued judgments against foreign State officials for their involvement in human rights violations ordering high amounts to be paid to victims. Moreover, the principle of state immunity has increasingly become shaky after a number of judgments regarding the criminal responsibility for crimes under international law, that is for most severe cases involving genocide, torture, crimes against humanity and war crimes. These developments regarding criminal responsibility have also influenced the situation regarding civil liability for compensation. Most fundamental issues and principles of international law such as the principle of equality of states (par in parem non habet imperium) and of the hierarchy of norms (f.e. the quality of the prohibition of torture as a peremptory norm of international law) will have to be taken into account. 10 A. Randelzhofer, "The Legal Position of the Individual under Present Internatinonal Law", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 231, at p. 234; R. McCorquodale, "The Individual and the International Legal System", in: International Law, M.D. Evans (ed.) 2003, p. 299, at p. 304. For the discussion of an eventual impact on the existence of an individual right to compensation, see below, chapter II. 1. b. (4) (c).

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well as those under international human rights law are reviewed. We argue that – even if this

has not yet been fully acknowledged by state practice – there are compelling legal arguments

in favour of an individual right to compensation de lege lata both under international

humanitarian law as well as under international human rights law.

Besides individual rights to compensation at the international level, an individual claim for

compensation may also arise under domestic law, especially law on state liability or tort law.

In our view, domestic law on state liability remains applicable in the course of an armed

conflict. However, international law can influence national claims. If the act which harmed

the victim is in compliance with the rules of international humanitarian law, these rules might

be invoked as a justification or a reason precluding the wrongfulness of the act, or change the

standard of negligence and thereby exclude the possibility of a claim under the law of state

liability.

If one sets aside the uneasiness with the increasing subjectivity of the individual under

international law which can sometimes be observed, the central practical preoccupation with

such a result – both visible in the practice of states as well as in academia – seems to be the

fear that states may be overburdened with compensation obligations after an armed conflict.

This question indeed requires a well-founded answer since overwhelming financial

obligations may negatively impinge both on an often fragile peace or armistice and on the

perspective of victims ever obtaining just satisfaction. We are going to argue that whereas the

amount of compensation owed is not limited from the outset, there is a possibility to balance

out the situation in the framework of a treaty under international law, in particular in the

framework of a peace treaty. In this context, states may find well balanced solutions which

take into account the economic feasibility of an agreement, the need for expedited procedures

and relaxed standards of proof. By balancing out the conflicting interests, it is possible to

establish ceilings on individual compensation amounts.11

II. Claims against States

1. Law of Armed Conflict

11 Apart from the state as a debtor of individual compensation, the individual perpetrator may also be individually liable. Indeed, it will be shown that there is a possibility under international law to claim compensation directly from the person responsible. This may have two important consequences: firstly, the victim obtains an additional debtor. While this at first sight may not seem to be overly attractive from an economic point of view, the individual debtor may be easier to sue. As a result of the evolving concept of international criminal law, the cracks in the wall of state immunity have become much more evident with a view to the individual responsibility of the perpetrator. Secondly, the concept of individual responsibility may exert considerably more preventive pressure on potential perpetrators than the concept of state responsibility. A section on this question will be inserted into the article at a later stage.

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When considering the question whether an individual has a right to compensation for the loss

suffered as a consequence of a violation of the law of armed conflicts, there are two different

points of departure which have to be analysed. There can be no doubt that damage suffered as

a consequence of a war which is not justified under international law by the ius ad bellum12

may give rise to an obligation to provide for reparation. Moreover, any infringement of the

rules and principles governing an armed conflict, the ius in bello13 prompts an obligation to

provide for reparation. It applies to all parties in an armed conflict irrespective of the

responsibility for the violation of the ius ad bellum. Different considerations apply, however,

with regard to the question of an individual right to compensation: the concept of international

peace including the ius ad bellum protects the peaceful relations between states whereas

international humanitarian law, which is part of the ius in bello, is based on humanitarian

considerations or motivations14 and is governing, in particular, the treatment of the individual

in armed conflicts.15

a) Reparation for Violations of International Humanitarian Law

The rule of responsibility with a view to compensation for violations of international

humanitarian law is set forth in Art. 3 of the Hague Convention IV, which states:

“A belligerent party which violates the provisions of the said Regulation shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”16

The rule was repeated in Art. 91 of Protocol additional to the Geneva Conventions of 12

August 1949 and relating to the protection of victims of international armed conflicts17

(Additional Protocol I) and is implicitly recognised by Art. 51 of Geneva Convention I, Art.

52 Geneva Convention II, Art. 131 Geneva Convention III and Art. 148 Geneva Convention

IV, which state that “no High Contracting Party shall be allowed to absolve itself or any other

High Contracting Party of any liability incurred by itself or by another High contracting Party

in respect of [grave breaches of these Conventions]”.

12 The modern ius ad bellum is of relatively recent origin as the first universally accepted prohibition of war is to be found in the Kellog-Briand Pact in 1928. A general prohibition of the use of force is now stipulated in Art. 2 Para. 4 of the UN Charter and exceptional conditions for its rightful use are determined by Chapter VII of the UN Charter. The prohibition is a principle of customary international law, see ICJ, Case concerning military and paramilitary activities in and against Nicaragua, 27 June 1986, ICJ Reports 1986, para. 187 et seq. 13 The ius in bello as it is used today finds its roots in the eighteenth century. F. Münch, "War, Laws of, History", in: Encyclopedia of Public International Law, R. Bernhardt (ed.), IV, 2000, p. 1386, at p. 1387. 14 K.J. Partsch, "Humanitarian Law and Armed Conflict", in: ibid. Vol. II, 1995, p. 933, at p. 933. 15 C. Greenwood, "Historical Development and Legal Basis", in: The Handbook of Humanitarian Law in Armed Conflicts, D. Fleck (ed.) 1995, p. 1, at p. 102. 16 Convention Respecting the Laws and Customs of War on Land, adopted on 18 October 1907 in The Hague, entered into force on 26 January 1910, in: Documents on the Law of War, A. Roberts/ R. Guelff (ed.), 3rd ed. 2000, p. 69 et seq. 17 Adopted at Geneva on 8 June 1977, entered into force on 7 December 1978; 1125 UN Treaty Series, p. 3. Art. 91 reads: “A party to the conflict which violates the provisions of the Conventions or of this 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 armed forces.”

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It is disputed whether the obligation to pay compensation exists only with regard to states or

also with regard to individual victims of violations of international humanitarian law.

Whereas there are no individual rights whatsoever contained in international humanitarian law

according to the traditional approach (1), a differentiation between individual primary rights

and secondary rights only pertaining to states is proposed by the “mixed approach” (2). In

contrast to these concepts, others argue in favour of an individual right to compensation under

international humanitarian law under the “individualised approach” (3). The exposition of

these different concepts will be followed by a discussion of the arguments in favour and

against them (4).

(1) Traditional Approach: No Individual Rights under International

Humanitarian Law

Following the traditional approach, individuals are neither vested with primary nor secondary

rights in the field of international humanitarian law. The rules of international humanitarian

law are only considered to be standards of treatment or conduct18 and the individual is seen

merely as a beneficiary of the rules rather than the holder of a right.19 According to this

concept, individuals consequently cannot claim compensation for losses suffered as a result of

an infringement of a rule of international humanitarian law.

This approach is frequently followed by domestic courts, especially in states which are being

sued for violations of international humanitarian law. In dealing with individual claims arising

out of an international armed conflict courts have often refused to recognise an individual

right to compensation for losses suffered as a consequence of a violation of international

humanitarian law. Whereas in certain cases, those courts explicitly state that the individual is

not protected under international humanitarian law, in other cases the respective judgements

seem to presuppose the absence of any individual rights in this legal area.

Japanese courts had to deal with claims arising out of the Second World War and especially

out of the fate of the so-called “comfort women“.20 The courts generally considered norms of

international humanitarian law to be not self-executing and consequently incapable of

18 R. Provost, International Human Rights and Humanitarian Law, 2002, p. 27 et seq.. 19 K.J. Partsch, "Individuals in International Law", in: Encyclopedia of Public International Law, R. Bernhardt (ed.), Vol. II, 1995, p. 957, at p. 959. 20 Often, on the initiative of the Japanese military, “comfort stations“ were set up and operated between 1930 and 1945, where an estimated 200,000 “comfort women“ were pressed into prostitution. For a discussion of the facts and the Japan’s court rulings see M. Igarashi, "Post-War Compensation Cases, Japanese Courts and International Law", 43 Japanese Annual of International Law 2000, p. 45-82. Nongovernmental organisations have organised a “Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery“ and held proceedings in Tokyo in 2000. They found Emperor Hirohito guilty and ruled that Japan’s international responsibility was engaged and recommended reparations. C.M. Chinkin, "Women's International Tribunal on Japanese Military Sexual Slavery", 95 ACIL (2001), p. 335 at p. 338.

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according individual rights to persons protected by the respective treaties.21 The Tokyo High

Court held that the damage of an individual should be considered as one of the state to which

the individual belongs.22 It ruled that “Article 3 of the Hague Convention should be

interpreted, from its wording itself, to provide state responsibility between states, not

individual rights for compensation”.23 In denying an individual right to compensation, the

Tokyo High Court refers also to the fact that there is no procedure under which the individual

could exercise its rights.24

In Hwang Geum Joo v Japan, the “comfort women” also brought their claim for

compensation before US courts. The case is still pending and, so far, the issue of

compensation has not been addressed as the initial debate is whether the US courts have

jurisdiction over the claim.25 In other cases, US courts decided that the Hague Convention is

not self-executing and that thus it does not grant individuals the right to seek damages for

violation of its provisions.26 In Tel-Oren et al v Libyan Arab Republic, Judge Bork argues

further that such “lawsuits might be far beyond the capacity of any legal system to resolve at

all”, and that “the prospect of innumerable private suits at the end of a war might be an

obstacle to the negotiation of peace and the resumption of normal relations between

nations.”27

The German Federal Supreme Court found in the Distomo case, which concerned claims of

dependents of the German massacre in 1944 in Distomo, that at least at the time of the Second

World War, the individual was not directly protected by international law and that

international law did therefore not provide an individual right to compensation.28 Having to

judge upon claims of victims of the NATO intervention in Yugoslavia, a German Regional

High Court dismissed the claim by arguing that the individual neither has any rights under

international humanitarian law nor can avail him or herself of any procedure to enforce

21 Shimoda et al. v. The State, District Court of Tokyo, Judgment of 7 December 1963, 32 ILR (1964), 626; X et al. v. the State of Japan, Tokyo High Court, Judgment of 7 August 1996, 40 Japanese AIL (1996) 117, 188. 22 High Court Tokyo, So Shinto, 30 November 2000, analysed by H. Kasutani /S. Iwamoto, "Japan", 3 YIHL 2000, p. 541, at p. 543. 23 High Court Tokyo, 8 February 2001, 45 Japanese AIL (2002), p. 143, see also High Court Tokyo, X et al. v the Government of Tokyo, 11 October 2001, 45 Japanese AIL (2002), p. 145; High Court Tokyo, So Shinto, 30 November 2000, analysed by H. Kasutani /S. Iwamoto, "Japan", 3 YIHL 2000, at p. 544. 24 High Court Tokyo, 8 February 2001, 45 Japanese AIL (2002), p. 143. 25 The Courts of Appeals ruled that the exception in the Foreign Sovereign Immunities Act of 1976 for commercial activities was not applicable retrospectively; District of Columbia Circuit 332 F.3d 679 (2003). The Supreme Court vacated the judgment and remanded further consideration in light of its recent judgment in Republic of Austria v Altmann, 124 S.Ct. 2240, where it held that the FSIA is applicable in retrospect; 124 S.Ct. 2835. 26 Tel-Oren et al v. Libyan Arab Republic, 726 F.2d 774 (US App.D.C. 1984), 810; Goldstar (Panama) SA v. United States (4th Cir. 1992), 96 ILR (1994), 55, 58-59; Princz v. Federal Republic of Germany, 26 F.3d 1166 (US App.D.C. 1994). 27 U.S.App.D.C., Tel-Oren et al v Libyan Arab Republic, 726 F.2d 774, at p. 810; See also Leo Handel v Andrija Artukovic, District Court for the Central District of California, in: M. Sassòli /A.A. Bouvier, How Does Law Protect in War? 1999, p. 713. 28 BGH, Distomo, NJW 2003, p. 3488 at p. 3491.

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eventual individual rights.29 Quoting Article 2 of the Hague Convention, the Regional High

Court emphasises that the Hague Convention would only apply between the State parties to

the treaty.30 In this respect, the ruling was confirmed by the competent Court of Appeal,

which held that there are no individual claims under international humanitarian law.31

With a view to compensation, the German practice after World War II provides for ample

examples of payment programmes which created individual rights under German national law

while at the same time refusing to accept the existence of a respective obligation under

international law. This approach was reiterated by the Federal Constitutional Court in its

decision of 13 May 1996 concerning forced labour claims according to which the individual

did not have the quality of a subject of international law at the times of World War II:

“The traditional concept of international law as law applying between states does not

accord the role of a subject of international law to the individual but only provides for

indirect international protection: In the case of violations of international law vis-à-vis

foreign nationals, the claim does not pertain to the individual but to his home state.

(…) This principle of an exclusive entitlement of the state also applied to violations of

human rights in the years 1943 to 1945.”32

The most prominent example for this approach33 is the Federal Law on Compensation

(Bundesentschädigungsgesetz) which was adopted in 1953, i.e. eight years after the end of

World War II.34 This law provided for the individual compensation of victims of Nazi

persecution based on an individualised assessment of the loss suffered. Those persons who

fulfilled the conditions of eligibility were entitled by law to obtain compensation for the

damage suffered.

The latest of Germany’s activities to make good to some extent for certain of the atrocities

committed during the Nazi era was to establish a foundation with the task of organising

worldwide payments for victims of National Socialist injustice, in particular victims of forced

labour.35 This foundation was established as late as summer 2000, i.e. more than 55 years

29 LG Bonn, decision of 10 December 2003, NJW 2004, p. 525 at p. 526. 30 LG Bonn, decision of 10 December 2003, NJW 2004, p. 525 at p. 526. 31 OLG Köln, decision of 28 July 2005, 7 U 8/04. 32 BVerfG, decision of 13 May 1996, 2 BvL 33/93, BVerfGE 94, p. 315. 33 On the other hand, the fact that the young Federal Republic of Germany started its way back into the international community with payments addressed to the State of Israel and the Commission for Jewish Claims against Germany, an NGO composed of numerous Jewish member organisations, show that to some extent it was not the state to state relationship which inspired compensatory payments but rather the obligation towards the victims. However, this motivation must not be overemphasised since victims of the Nazis in Central and Eastern European States were not similarly taken into account due to the communist regimes of their home states. Even if such activities were always conditional on the non-recognition of any rights existing independently from the treaties then concluded the wording of the treaties mentioned as well as the other treaties concluded with victim states used to make clear that the payments afforded by the Federal Republic of Germany were intended for the compensation of individual victims. 34 BGBl. 1953 I, 1387. 35 Law on the Creation of a Foundation “Remembrance, Responsibility and Future” (Federal Law Gazette BGBl. I 2000, 1263. For an

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after the end of World War II. It was maintained by the German side throughout the process

of adopting this law that the establishment of the Foundation was voluntary. This approach

also found its way into the law finally adopted which carefully seeks to avoid to grant a legal

right to beneficiaries vis-à-vis the German State or the Foundation by avoiding any direct

legal relationship between the claimant and the Foundation or the German State.36 Instead of

this, the law seeks to provide only for an ex-gratia entitlement.

(2) Mixed Approach: Differentiation between Primary and Secondary

Rights

In contrast to the traditional approach, some national courts and scholars recognise the

existence of individual primary rights in the field of international humanitarian law, but deny

the individual a right to compensation for a violation of its rights.

In its decision on claims of so called Italian Military Internees37 during the Second World

War, the German Federal Constitutional Court acknowledged that individuals enjoy rights

under international humanitarian law.38 However, the Court ruled that there is no individual

right to compensation, and that especially Art. 3 of the Hague Convention IV does not contain

an individual right. Rather, the Article would simply reiterate the general principle under

international law according to which liability for infringements of a treaty obligation exists

only between the states concerned. The Court mentioned Art. 1 of the ILC-Draft on State

Responsibility as a reference for its statement and did not provide further argumentation.39

Art. 1 of the ILC-Draft on State Responsibility reads:

“Every internationally wrongful act of a State entails the international responsibility of

that State.”

Similarly, Tomuschat agrees on the existence of individual rights under international

humanitarian law in as far as the violations in question amount to an international crime as

analysis of this programme as well as parallel programmes addressing Nazi injustice, see R. Bank, The New Programmes for Payments to Victims of National Socialist Injustice, GYIL 44 (2001), p. 307-352. 36 In particular, Section 10 paragraph 1 of the Foundation Law provides: “The approval and disbursal of one-time payments to those persons eligible under Section 11 will be carried out through partner organizations. The Foundation is neither authorized nor obligated in this regard. (…)” 37 The term was assigned to the persons in question by Hitler contrary to their legal status as prisoners of war. It applied to members of the Italian Forces who were captured by the German army immediately after Italy had quit the Axis with Germany and had concluded a truce with the Allied Powers. Several hundred thousand soldiers were detained by Germany and – after they had refused to join in on side of the German forces – were regarded as traitors by the German Reich and often treated very badly. In order to avoid the supervision by the International Committee of the Red Cross and any claims to treat them in accordance with international humanitarian law protecting prisoners of war, Hitler invented the term “military internees” which used to be applied to combatants detained by a neutral power. Cf. G. Schreiber, Die italienischen Militärinternierten im deutschen Machtbereich 1943-1945, München 1990, p. 97 et seq. 38 BVerfG, NJW 2004, p. 3257, at p. 3258. 39 Ibid.

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defined by the ILC Draft on State Responsibility.40 He argues further that such a primary right

deriving from the fact that some kinds of behaviour are banned under the concept of

international crimes “does not necessarily translate into a secondary right as a consequence of

its breach”.41 According to Tomuschat, as long as there is no procedural remedy, there can be

no secondary right.42 Such a step marks another far-reaching development of a legal system as

it is to be seen by the example of the European Union.43 He seems to assume that primary

rights can only give rise to secondary rights within a system with its own institutions and

particularly a genuine judicial branch.

(3) Individualised Approach: Individual Rights to Compensation

There are also incidents where an individual right to compensation for a violation of

international humanitarian law is recognised. The origin of such a right is seen either in Art. 3

of the Hague Convention IV (a), in special treaty provisions or Security Council Resolutions

(b), or in a general secondary right prompted by a violation of a primary right (c).

(a) Art. 3 of the Hague Convention IV

An individual right to compensation is often seen in Art. 3 of the Hague Convention IV. A

similar provision is to be found in Art. 91 of the Additional Protocol I, which provides for

compensation in cases of violations of the Geneva Conventions of 194944 or of Additional

Protocol I. Referring to the travaux préparatoires of the Hague Conventions, Kalshoven found

that Art. 3 of the Hague Convention IV was intended to contain an individual right to

compensation in the case of violations of the ius in bello vis-à-vis the state responsible for such

violation.45 Other scholars follow this approach,46 and the Basic Principles and Guidelines on

the Right to a Remedy and Reparation for Victims of Violations of International Human Rights

and Humanitarian Law of the United Nations47 affirm this interpretation. In Para. 1 of its

Preamble, they name Art. 3 of the Hague Convention IV and Art. 91 of the Additional Protocol

I as provisions providing a right to a remedy for victims of violations of international

40 A. Randelzhofer, "The Legal Position of the Individual under Present Internatinonal Law", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 231, at p. 11 et seq. 41 Ibid., at p. 13. 42 Ibid., at p. 11. 43 Ibid., at p. 13 et seq. 44 Signed at Geneva on 12 August 1949, entered into force on 21 October 1950, 75 UN Treaties Series, p. 32 et seq. 45 F. Kalshoven, “State Responsibility for Warlike Acts of the Armed Forces”, 40 ICLQ (1991), p. 827 et seq. 46 C. Greenwood, "International Humanitarian Law (Law of War)", in: The Centennial of the First International Peace Conference, F. Kalshoven (ed.) 2000, p. 161, at p. 250; L. Zegveld, "Remedies for victims of violations of international humanitarian law", 85 IRRC (2003), p. 497, at p. 506; different view P. d'Argent, Les réparations de guerre en droit international public, 2002, p. ; W. Heintschel von Heinegg, "Entschädigung für Verletzungen des humanitären Völkerrechts", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 1, at p. 31; C. Tomuschat, Human Rights: Between Idealism and Realism, 2003, p. 294. 47 Commission on Human Rights Resolution 2005/35 (19 April 2005).

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humanitarian law.48 The report of the International Commission of Inquiry on Darfur states

that even if Art. 3 of the Hague Convention IV was initially not intended to provide for

compensation for individuals, it does so meanwhile, as the emergence of human rights in

international law has altered the concept of state responsibility.49

In contrast, the majority of domestic courts do not recognise an individual right to

compensation under Art. 3 of the Hague Convention IV or Art. 91 of the Additional Protocol

I.50 However, some interesting court decision acknowledging an individual right under the

provision can be found.

As early as 1952, a German Higher Administrative Court ruled that Art. 3 of the Hague

Convention IV provides for an individual right to compensation.51 The decision did not

address a claim arising directly out of an armed conflict, but dealt with the claim of a German

individual who was seriously injured by a vehicle of the British occupying power.

Compensation was granted, inter alia, based on Art. 3 of the Hague Convention IV.

In 1997, a Greek court dealing in the first instance with the Distomo case found that the

victims respectively the dependants of the victims of the massacre had a right to claim for

compensation under Art. 3 of the Hague Convention IV.52 Also judging upon the Distomo

case, the Aeropag53 differentiated between situations within the immediate context of an

armed conflict and other situations not inextricably linked to the armed conflict. As far as

compensation claims relating to the armed conflict are concerned, it stated that they are

governed by bi- or multilateral agreements after the end of the war. Although the approach

taken by the Aeropag concerned the question of state immunity, it follows implicitly that the

Aeropag considers such claims to pertain exclusively to the State parties to the conflict. As a

reason for this, the court referred in particular to practical reasons such as avoiding a flood of

court proceedings. In contrast, as far as a particular group of victims was singled out by the

48 The provision reads: “Recalling the provisions providing a right to a remedy for victims of violations of […] international humanitarian law as found in article 3 of the Hague Convention of 18 October 1907 concerning the Laws and Customs of War and Land (Convention No. IV of 1907), article 91 of Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I).”�

49 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General pursuant to Security Council Resolution 1564, 25 January 2005, at para. 593 et seq. 50 See above, chapter II. 1. b. (1), (2). 51 OVG Münster, 9 April 1952, ILR (1952), p. 632-634. 52 Prefecture Voiotia v Federal Republic of Germany, Court of First Instance of Leivadia 137/1997, 30 October 1997, analysed by I. Bantekas, "International Decisions, Prefecture of Voiotia v Federal Republic of Germany", 92 ACIL (1998), p. 765. The ruling of the Areios Pagos in the same matter does not deal with Art. 3 of the Hague Convention IV, Case No. 11/2000, 4 May 2000, analysed by M. Gavounelli/ I. Bantekas, 95 ACIL (2001), p. 198. The Areios Pagos does not discuss war crimes, but judges the massacre as a crime against humanity, which can also be committed in time of peace. The reason for this approach can be seen in the exception of state immunity in peace time, E. Micha, "Correspondent's Reports, Cases", 3 YIHL (2000), p. 511; M. Gavounelli /I. Bantekas, "International Decisions, Prefecture of Voiotia v Federal Republic of Germany", 95 ACIL (2001), p. 198. 53 Federal Republic of Germany v. Selfadministration of the Prefecture Böotien as representative of Konstantinos Avoritis et al., Aeropag, decision of 20 January 2000.

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perpetrators and the situation does not affect the civilian population in general as a necessary

consequence of the armed conflict, the Aeropag refused to grant immunity and implicitly

seemed to accept the possibility of individual claims. This differentiation was criticised as

artificial by a minority of the Aeropag judges. Indeed, the argument of the majority of

Aeropag judges remains somewhat opaque, in particular, since it does not clarify which

violation of humanitarian law may lead to an individual claim. The criterion of necessity

(damage as a necessary consequence of the armed conflict) is not convincing with a view to

differentiating between various violations of international humanitarian law since it

constitutes a central criterion for differentiating between violation and action in accordance

with the ius in bello.

In the Margellos case, in the context of granting immunity to the German State before Greek

Courts for violations of international law during the Second World War, the Greek Highest

Special Court mentions the possibility that compensation could be claimed either by the home

State of the victims or the victims themselves.54 Thus, it recognises the possibility of

individual claims as well.

In the Ferrini case, the Italian Corte Suprema di Cassazione had to answer the question

whether Germany could claim immunity in Italian courts against legal action initiated in Italy

arising out of situations involving war crimes and crimes against humanity (deportation and

submission to forced labour).55 Even though the scope of the decision was limited to the issue

of immunity, which had to be resolved before any other legal question in the respective case

could be addressed, the Court explicitly presumed a possibility of individual rights to

compensation to be enforced through civil litigation.56 It thereby necessarily accepted the

concept of an individual right to compensation at least in cases of international crimes.

(b) Individual Rights as Secondary Rights in Peace Treaties and Security Council

Resolutions

There are a number of examples, in which a right for individuals to obtain compensation in

case of a violation of international humanitarian law is explicitly mentioned in a peace treaty

or a Security Council Resolution without explicitly grounding the right on Art. 3 of The

Hague Convention or the respective provisions in the Geneva Conventions. This could

constitute an argument in favour of the existence of a secondary right to compensation.

54 Federal Republic of Germany v. Miltiadis Margellos, Highest Special Court, decision of 17 September 2002; in: M. Panezi, "Soveign Immunity and Violation of Ius Cogens Norms", 56 RHDI (2003), p. 199. 55 Corte Suprema di Cassazione, Ferrini, 11 March 2004, 87 Rivista di diritto internazionale (2004), p. 540. 56 Ibid., para. 9.

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It is arguable that the individual is the bearer of a right to compensation for violations of

international humanitarian law before the Eritrea-Ethiopia Claims Commission (EECC). Art.

5 Para. 1 Sentence 2 of the Agreement between the Government of the Federal Democratic

Republic of Ethiopia and the Government of the State of Eritrea stipulates:

„The mandate of the Commission is to decide through binding arbitration all claims for losses, damage or injury by one Government against the other, and by nationals (including both natural and juridical persons) of one party against the Government of the other party or entities owned or controlled by the other party that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.”57

According to this rule, individuals are entitled to obtain reparation for their loss suffered from

a violation of international law in the context of the conflict between Eritrea and Ethiopia.

Even though the individual has no standing before the EECC, the individual is the bearer of

the material right to reparation under the Agreement. The wording of Art. 5 Para. 8, 9 of the

Agreement, of the Rules of Procedure58 and of Decision No. 559 indicate that the state, when

claiming for a loss suffered by an individual, is not invoking its own right, but is acting on

behalf of the individual. In its recent Partial Award on Eritrea’s Claims 15, 16, 23 & 27–32,

the EECC confirmed this classification by ruling that claims brought by Eritrea on its own

behalf for non-nationals are outside the scope of jurisdiction of the Commission. These claims

should have been made on behalf of the individuals themselves, as “the claim remains the

property of the individual and that any eventual recovery of damages should accrue to that

person.”60 The Agreement therefore confers to individuals a right to obtain reparation for a

violation of the ius in bello.

In the framework of the UNCC there is one situation in which a payment can be made for a

violation of international humanitarian law even though the UNCC usually grants

compensation for damages resulting in the violation of the prohibition of the use of force by

Iraq. These cases concern claims by the members of the Allied Coalition Armed Forces, who

are usually excluded from submitting claims before the UNCC. Only if they were prisoners of

war and have suffered a mistreatment contrary to the rules of international humanitarian law,

57 Agreement of 12 December 2000, 40 ILM (2001), p. 260. 58 Article 23 and 24 no. 3 (b), available at: http://www.pca-cpa.org/ENGLISH/RPC/EECC/Rules%20of%20Procedure.PDF. 59 Available at: http://www.pca-cpa.org/ENGLISH/RPC/EECC/Decision%205.pdf. 60 Partial Award of 17 December 2004, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32, para. 19. Claims for injuries of Eritrean nationals were only brought on behalf of Eritrea and not explicitly on behalf of the individuals. However, they are within the jurisdiction of the Commission, as Art. 5 para. 8 of the Peace Agreement states that claims shall be submitted on behalf of the parties and the nationals themselves. The Commission seems to consider the formulation chosen by Eritrea to be sufficient to include claims of the individuals.

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they are entitled to obtain compensation from the commission.61

Another explicit link between a violation of international humanitarian law and an individual

right to compensation was made by the Security Council in the context of the Israeli-

Palestinian conflict. In its Resolution 471, the Security Council stated that the violation of Art.

27 Geneva Convention IV by Israel established the obligation “to provide the victims with

adequate compensation for the damages suffered as a result of these crimes”.62

The documents mentioned do not contain any reference to Art. 3 of the Hague Convention IV

or the general principles of state responsibility, nor do they give other arguments for the

existence of such a right. At first sight, it is therefore not completely clear whether the

documents presuppose and confirm an existing individual right to compensation under

international law or whether they intend to establish an individual right by treaty or by

resolution.63 The situation underpinning the peace treaty between Eritrea and Ethiopia seems

prone to accepting obligations in the treaty only with a view to already existing obligations:

the Peace Treaty between Eritrea and Ethiopia results from a draw situation where warring

factions enter the negotiating table because of having accepted that neither of them can win. It

seems unlikely that they would accept obligations beyond what they are bound to already

without a treaty. Consequently, this Peace Treaty is more likely to constitute a confirmation of

individual rights to compensation resulting from infringements of international humanitarian

law.

The example of the UNCC as practice of the Security Council regarding compensation for

violations of international humanitarian law is admittedly not very strong since the entire

mandate of the UNCC goes back to the violation of the ius ad bellum by Iraq. It has been

argued that with a view to such violations the Security Council has created individual rights

for compensation.64 Consequently, it will be difficult to argue that the Governing Council of

the UNCC only acted in recognition of rights existing independently of the Security Council

Resolution establishing the entire framework.

61 Decision No. 11 of the Governing Council, UN Doc. S/AC.26/1992/11. 62 S/RES/471, 5 June 1980, para. 2 and 3. 63 This is also true for those peace agreements which do not even differentiate between losses resulting from an infringement of the ius in bello and others such as the US-German Mixed Claims Commission (Kube states in this respect that the reason for Germanys’ responsibility is the violations of the ius in bello plus contractual obligations laid down by treaty; D. Kube, Private Kriegsschäden in der völkerrechtlichen Praxis. Ein Beitrag zur Staatenverantwortlichkeit im Kriege, 1971, p. 189 et seq.) or the Property Commission for Bosnia and Herzegovina established under the Dayton Peace Agreement. The Dayton Peace Agreement explicitly states the rights of persons deprived of their property to restoration or compensation (Annex VII, Art. 1 Para 1): “Rights of Refugees and Displaced Persons: 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 in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. (…)” The right seems also to cover compensation for property which was destroyed during the conflict; however, the right is not dependent on any violation of international humanitarian law. 64 For the competence of the Security Council to do so see A. Gattini, "The UN Compensation Commission: Old Rules, New Procedures on War Reparations", 13 EJIL (2002), p. 161, at p. 164 et seq.

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In contrast to that, the example of the Security Council in its resolution 471 concerning Israel

could hardly be clearer in grounding the individual right to compensation on a violation of

international humanitarian law.

(c) Individual Rights as Secondary Rights in International Jurisprudence

In a most striking fashion, the ICJ dealt with the question of compensation in its advisory

opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory by the ICJ.65 After stating that Israel had violated primary obligations under human

rights law and international humanitarian law, the Court finds that from these violations

follows the duty to make reparations including compensation to individuals:

“152. Moreover, given that the construction of the wall in the Occupied Palestinian Territory has, inter alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court finds further that Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned. The Court would recall that the essential forms of reparation in customary law were laid down by the Permanent Court of International Justice in the following terms: […]

153. Israel is accordingly under an obligation to return the land, orchards, olive groves and other immovable property seized from any natural or legal person for purposes of construction of the wall in the Occupied Palestinian Territory. In the event that such restitution should prove to be materially impossible, Israel has an obligation to compensate the persons in question for the damage suffered. The Court considers that Israel also has an obligation to compensate, in accordance with the applicable rules of international law, all natural or legal persons having suffered any form of material damage as a result of the wall’s construction.”66

Most remarkably, this part of the ICJ’s ruling did not meet with any opposition not even on

part of judges who issued dissenting opinions. Unfortunately, the reasoning behind the

opinion is lacking in detail and it is therefore not clear, on which argument the duty to make

reparation is based.67 As the Court is not referring to special provision providing for

individual compensation, but to the ruling of the PCIJ in the Factory at Chorzów Case, which

deals with the general principle of state responsibility, it can be assumed that the Court ruled

in favour of a general principle to make reparations to individuals in case of a violation of

their rights. The wording used by the Court, which is talking of an obligation to make

reparation rather than of a right of the injured party to obtain reparations, does not deny the

right of the injured party to obtain reparation. This wording is common when considering the

65 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004. 66 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004. 67 See for the critic of an absent of reasoning in the opinion see also R. Higgins, Dissent opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, para. 24.

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consequences of an internationally wrongful act68 and can be explained by the intention not to

exclude any aspect of reparation, for instance, declaratory relief. Further, by using the term

obligation, there is no need to differentiate in the terminology when considering the obligation

to provide for reparation in case of a violation of an obligation erga omnes, where the

obligation to provide for reparations owed to the international community; but the

international community is not the holder of a secondary right.69

It cannot be argued against the conclusion of an individual secondary right that in absence of

a Palestinian State, the Court was forced to rule in favour of individuals. It could have made a

ruling in favour of the Palestinian National Authority as representative for the Palestinian

people.70

An approach in favour of a secondary right had already been taken by the International

Criminal Tribunal for the Former Yugoslavia (ICTY) in an obiter dictum. In the Furundzija

case, the Tribunal addressed the question of compensation for individuals in case of a

violation of the prohibition of torture as a norm of ius cogens quality. The Court held that:

“155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter- state and individual levels. […] Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act.” 71

One can deduct from the Tribunal’s decision that the individual victim of a violation of a

norm with ius cogens character is entitled to claim for compensation before an international or

national judicial body or also a foreign national court. The wording quoted above shows that

the Tribunal assumes the existence of a secondary right to compensation under international

law in the absence of any requirement for national measures to provide for the respective

right. The Tribunal derives the obligation immediately from international law. The general

argument underpinning this conclusion seems to be that a violation of a ius cogens norm

prompts a right to a compensation; it could be deduced from this approach of the ICTY that at

least violations of international humanitarian law norm with the status of ius cogens prompt a

right to compensation.

68 PCIJ, Factory at Chorzów, Merits, PCIJ Series A, No. 17, at p. 47; Art. 31 ILC-Draft on Responsibility. 69 J. Crawford, "Third Report", A/CN.4/507 2000, at p. 6, 14. 70 The Palestinian National Authority is a subject under international law, O. Kimminich /S. Hobe, Einführung in das Völkerrecht, 2004, p. 167. 71 ICTY, Furundzija, 10 December 1998, IT-95-17/ I-T, at para. 155.

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(4) Discussion of the various approaches

The opponents of an individual right to compensation for violations of international

humanitarian law base their arguments on the following grounds: There is no individual right

because the wording of the respective norms does not provide for this conclusion (a); the

situation under international law in which humanitarian law is embedded and in the context of

which it must be interpreted does not provide for individual rights in such cases (b). These

two aspects call for an interpretation according to the rules of international customary law or

the Vienna Convention on the Law of Treaties; taking into account the treaties which were

concluded after the entry into force of the convention. A further argumentation is that the

existence of an individual right is not possible without a procedural remedy (c). Further, it

will be examined whether in case of an individual primary right, there is an individual

secondary right to compensation in case of a violation of the primary right (d).

Finally, the argument is put forward that individual rights to compensation would entail the

threat of innumerable private suits. This aspect is not a legal, but a political one. It addresses

an important problem which, however, cannot determine the legal question whether there is

an individual right; it may only have an impact on the content of the right or the way the right

is realized. One can only arrive at this question if there is an individual right to compensation.

The legal implications of mass claim situations will be discussed further below (Section 4).

(a) The wording of norms of international humanitarian law

Already the Hague Convention IV and its Annex with the Regulations Respecting the Laws

and Customs of War on Land contain provisions which are more or less explicitly according

rights to individuals. For instance, the humane treatment of prisoners of war may be read as a

right of the person concerned; the last sentence of the same section may be read as a guarantee

to respect their property:

“Prisoners of war […] must be humanely treated. All their personal belongings, except arms, horses, and military papers, remain their property.” (Art. 4 Annex to the Hague Convention IV)

Even more explicit is Article 13 of the Annex to the Hague Convention IV which literally

uses the terminology of “entitlement”:

“Individuals who follow an army without directly belonging to it, […] who fall into the enemy's hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war […].”

The famous provision on compensation in Art. 3 of the Hague Convention only mentions the

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party which is liable to pay compensation and not the eventual claimant. Thereby, the

provision is not worded in a manner explicitly conferring rights on individuals. However, due

to its reference to other provisions of the Hague Convention IV and its Annex, it could be

read to also include the possibility that the violating party could be liable to the individual

protected by the respective rules. The provision reads:

“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 for all acts committed by persons forming part of its armed forces.” (Art. 3 of The Hague Convention IV)

After World War II, international humanitarian law has developed more clearly in the

direction of protecting the individual from any excess of the use of force in an armed conflict.

Consequently, the 1949 Geneva Conventions and the 1977 Additional Protocols are full of

examples for norms worded in a manner explicitly granting individual rights.72

To argue with respect to such provisions that they are generally not sufficiently precise in

order to fulfil the conditions for being self-executing is not convincing. If one takes the

example of humane treatment of prisoners of war, the structural role as a protection tool for

the benefit of certain individuals is as clear as in those rules of international or national human

rights norms. The right to humane treatment of prisoners of war may be applied to the benefit

of the individual just as the right to freedom from torture, inhuman or degrading treatment as

it is enshrined in human rights treaties.

(b) The interpretation of norms of international humanitarian law in context and in the

light of its object and purpose

These results, however, have to be interpreted in the light of its object and purpose as well as

in the context, taking into account relevant aspects from within and from outside the text, in

particular subsequent state practice and relevant international law applicable between the

parties.

A strong argument for an interpretation that individual rights were accorded in international

humanitarian law treaties already at the turn of the century is that one of the functions of the

treaties is to protect the individual; a function which was clearly visible at the time. At least

some of the provisions of the treaties do not protect the states’ interest in leading an effective

warfare but impose absolute limitations on that effectiveness in favour of the protection of

72 E.g. Art. 27 Para. 1 Geneva Convention IV, Art. 7 Geneva Convention III. See C. Greenwood, "Rights at the Frontier - Protecting the Individual in Time of War", in: Law at the Centre, B.A.K. Rider (ed.) 1998, p. 277, at p. 281 et seq.

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individuals. The Hague Convention IV may be seen as establishing an absolute limitation on

the effectiveness of warfare in certain respects; as it can be seen from its preamble:

“According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.”

This paragraph of the preamble shows that military requirements are reflected in the norms

then adopted. Therefore, that military necessity cannot constitute an excuse for an

infringement of the rules set out subsequently unless explicitly mentioned (for instance in

Article 15 of the Annex). Consequently, provisions on individual protection impose an

absolute limitation on opportunities for action in warfare.73 This observation argues in favour

of an individual right. However, this conclusion is not compelling given the possibility of a

mere obligation among states.

It can be argued that it was in the area of international humanitarian law where the individual

was first vested with rights and obligations under international law due to the need to protect

an individual independently of the assistance of its state in situations of international armed

conflict, where the state’s authority may be weak or even undergo changes.74

On the other hand, even though the function of protecting the individual is visible already in

international humanitarian law treaties applying in the times before and during World War II,

the overall legal situation at that time remained rather alien to the concept of conferring rights

directly upon individuals under international law. As Oppenheimer stated in 1905:

“Since the Law of Nations is a law between States only, and since States are the sole exclusive subjects of International Law, individuals are mere objects of International Law., and the latter is unable to confer directly rights and duties upon individuals.”75

However, as the discussions during the negotiation of the Hague Convention IV demonstrate,

the concept of individual rights was not alien at the time. In this context, it is important to

note that in contrast to the system of treaty interpretation according to Art. 31, 32 of the

Vienna Convention, the trauvaux préparatoires are of particular relevance for the

interpretation of the Hague Convention since at that time interpreters of treaty provisions

would predominantly apply the subjective approach.76 The German delegate von Gündell

73 See also K. Ipsen, Völkerrecht, 5th ed. 2004, § 65, Note 2 et seq. 74 Y. Dinstein, "Human Rights in Armed Conflict", in: Human Rights in International Law: Legal and Policy Issues, T. Meron (ed.) Vol. 2, 1984, p. 345, at p. 347, 355; K. Ipsen, Völkerrecht, 5th ed. 2004, § 67 Note 4. 75 L. Oppenheimer, International Law, Vol. I, 1905, 200. 76 W. Heintschel von Heinegg, "Entschädigung für Verletzungen des humanitären Völkerrechts", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 1, at p. 29 footnote 29.

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proposed originally two articles dealing with compensation, as he differentiated between the

method of payment to persons national of a neutral state and persons national of an enemy

state. The first version names the individual as beneficiary of the rule:

„La Partie belligérante qui violera les dispositions de ce Règlement, au préjudice de personnes neutres, sera tenue de dédommager ces personnes du tort qui leur a été causé. …“77

The reasoning for the provision given by von Gündell is as follows:

„Le cas, le plus fréquent à se produire, sera celui où aucune négligence n’est à la charge du Gouvernement, lui-même. Si, dans ce cas, les personnes lésées par suite d’une contravention au Règlement, ne pouvaient demander réparation au Gouvernement, et qu’elles fussent obligées à se retourner contre l’officier ou le soldat coupable, elles seraient, dans la majorité des cas, destituées de la faculté de obtenir l’indemnisation qui leur est due.“78

Thus, the provision was not only meant to regulate the liability of the state for actions of its

organs which were taken not in their official capacity, but to confer a right to the individual

concerned. The provision especially mentions the individual and it was clear in the debate that

the individual would be vested with a right. The British delegate stated:

„…L’article 1er accorde aux personnes neutres un droit contre la partie belligérante de réclamer le dédommagement du tort qui leur a été causé…..“79

In the report about the discussion, Baron Giesl von Gieslingen speaks of a „droit“, of a right

of the neutral person,80 and concluded that no difference should be made between the right of

a neutral or an enemy person.81 Indeed, the proposition of the German delegate was only

criticised in respect of this differentiation,82 and thus it was abandoned by drafting a single

article dealing with compensation.83 In this short version, which is Art. 3 of the Hague

Convention IV in its current form, the bearer of the right to compensation was no longer

mentioned.

Consequently, the overall approach rejecting the idea of individual rights under international

law and the discussions during the negotiations on the Hague Convention IV stand in stark

contrast. The ambiguous picture prevailing after these considerations is not elucidated by the

diverging state practice concerning compensation claims for the time of World War II.

77 Deuxième Conférence internationale de la Paix: actès et documents, III, 1908, p. 144. 78 Ibid., p. 145. For an English translation see Y. Sandoz, "Unlawful Damages in Armed Conflicts and Redress under International Humanitarian Law", 22 IRRC (1982), at p. 137. 79 Deuxième Conférence internationale de la Paix: actès et documents, III, 1908, p. 147. 80 Ibid., Vol. I, p. 103. 81 Ibid., p. 104. 82 Ibid., p. 103. 83 Ibid., p. 104.

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The picture changes completely with the adoption of the Charter of the United Nations –

adopted under the impression of the unimaginable atrocities committed before and during

World War II – which led to the acceptance of the position of the individual as a subject of

international law. As Lauterpacht said:

“The Charter of the United Nations, in recognising the fundamental human rights and freedoms, has to that extent constituted individuals subjects of the law of nations.”84

Not only the Charter of the United Nations, but also numerous international human rights

treaties have been adopted and international customary law has evolved which provides for an

absolute protection of the individual from certain atrocities such as torture. Moreover, also

international humanitarian law has developed in the form of the 1949 Geneva Conventions

and the 1977 Additional Protocols which confer rights on individuals. In this context,

provisions have been introduced according to which states cannot amend or waive the

individual rights.85 For instance, Art. 6 of the 1949 Geneva Convention III contains the

following provision:

“No special agreement shall adversely affect the situation of prisoners of war, as defined by the present Convention, nor restrict the rights which it confers upon them.”

Another argument in favour of individual rights could be seen in the existence of norms which

protect individuals independently of their nationality.86 Under these provisions, states are

guaranteeing rights to their own nationals as well as other nationals under international law.

In the absence of the argument that the concept of individual rights under international law is

non-existent, it is difficult to see why the respective provisions in the treaties of international

humanitarian law would not confer individual rights. This is also valid with a view to those

Articles of the Hague Convention which are still applicable; they have to be interpreted in

accordance with those rules on treaty interpretation applying today. The establishment of the

concept of individuals as subjects of international law consequently must be reflected in the

interpretation of relevant treaty provisions as “relevant rules of international law” in the sense

of the customary international law norm on treaty interpretation as it was codified in Art. 31

Para. 3 c of the Vienna Convention on the Law of Treaties.87

84 H. Lauterpacht, International Law and Human Rights, 1950, p. 61. 85 See, for example, Art. 6 Para. 1 Geneva Convention III, Art. 7 Para. 1 Geneva Convention IV. 86 See, e.g. Art. 13 of the Geneva Convention IV of 1949 or the norms applicable during a non-international armed conflict. See J. Pictet, Development and Principles of International Humanitarian Law, 1985, p. 94. A provisions obliging parties to afford care irrespective of the nationality of the person was already agreed on as early as 1864 with regard to wounded combatants (Art. 6 of the Geneva Convention of 1864). 87 For the character of those norms of treaty law which were codified in Art. 31 to 33 of the Vienna Convention of the Law of Treaties see I. Sinclair, The Vienna Convention on the Law of Treaties, 1984, p. 19 (including references to international jurisprudence).

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Consequently, taking into consideration the arguments presented above on Art. 3 of the Hague

Convention IV, the question whether this provision nowadays contains an individual right to

compensation has to be answered in the affirmative.88 The argument put forward by scholars

that a treaty dating from the year 1907 could not confer rights upon individuals89 is not valid

anymore. After the concept of individual rights under international law has become accepted,

it cannot be denied that certain norms of the Hague Convention IV contain individual rights.

Art. 3 of the Hague Convention IV is providing for such an individual right in case of a

violation of international humanitarian law.90 The same applies to Art. 91 of the 1977

Additional Protocol I.91

(c) No individual right without an individual remedy?

In denying an individual right in this area, it is sometimes referred to the fact that there is no

procedure under which the individual could exercise its rights. This reasoning does not take

into account that a primary right to compensation or a secondary right to the same end can be

directly applicable in national or – under certain circumstances – international courts as a

basis for obtaining compensation. Consequently, the remedy – which may be ineffective for

various reasons such as immunity or statutes of limitations – may be deduced from the right.

There is no reason why national courts could not directly apply Art. 3 of the Hague

Convention IV in national proceedings on tort or state liability.

The view, that no specific remedy is necessary, is confirmed by international jurisprudence. In

the case Jurisdiction of the Courts of Danzig, the PCIJ affirmed the existence of a right for an

88 Different view K.J. Partsch, "Individuals in International Law", in: Encyclopedia of Public International Law, R. Bernhardt (ed.), Vol. II, 1995, p. 957, at p. 959 and R. Provost, International Human Rights and Humanitarian Law, 2002, p. 27 et seq. An argument put forward against this conclusion is that state practice is not confirming that the Article contains an individual right. P. d'Argent, Les réparations de guerre en droit international public, 2002, p. 785. The threshold here would be, however, that state practice would clearly demonstrate that the Article does not contain an individual right; this threshold is not reached. 89 W. Heintschel von Heinegg, "Entschädigung für Verletzungen des humanitären Völkerrechts", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 1, at p. 31. 90 A further question is whether there is a right to compensation under this norm only in case of a violation of an individual right under international humanitarian law or whether the infringement of any rule of international humanitarian law is sufficient to trigger the right to compensation. The wording of Art. 3 of the Hague Convention and Art. 91 of Additional Protocol I suggests that there is no need for a violation of a rule containing an individual right. The articles dealing with the issue of compensation can thus be seen as conferring an independent right to compensation. 91 Scope: It is debatable whether Art. 3 of the Hague Convention IV and Art. 91 of Additional Protocol I are only applicable in international armed conflicts or whether they provide for compensation in case of a non international armed conflict as well. Art. 91 of Additional Protocol I refers to violations of the Geneva Conventions and of Additional Protocol I as relevant infringements for compensation. It does not include violations of Additional Protocol II, which contains rules for a non international conflict. There is no norm on compensation in Additional Protocol II neither. Thus, on could conclude that Art. 3 of the Hague Convention IV is only applicable in international armed conflicts. P. d'Argent, Les réparations de guerre en droit international public, 2002, p. 517; E. David, Principes de droit des conflict armés, 2002, p. 641 para. 4.37 But is has to be taken into consideration that the Geneva Conventions contain with its common Art. 3 rules governing non international armed conflicts. As Art. 91 of Additional Protocol I refers to all violations of the Geneva Conventions, it includes violations of common Art. 3 and thus violations of rules valid in non international armed conflicts. Therefore, Art. 3 of the Hague Convention IV and Art. 91 of Additional Protocol I provide for compensation also in non international conflicts, see Max Huber, Réclamation britanniques au Maroc espagnol, Rapport du 1er mai 1925, RSA 11, 645 ; cited after E. David, Principes de droit des conflict armés, 2002, p. 641 para. 4.37. This interpretation is confirmed by the report of the International Commission of Inquiry on Darfur. The Commission recommends the establishment of a Compensation Commission for the compensation of the victims of the conflict in Sudan. It refers to Art. 3 of the Hague Convention IV as legal basis for the establishment of the Commission (International Commission on Inquiry on Darfur, Report to the Secretary General, 25 January 2005, para. 593 et seq.) and applies it thereby to a non-international armed conflict.

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individual under international law which could be enforced before national courts; an

international enforcement mechanism was not considered to be necessary.92 The ICJ followed

this line in the LaGrand case by holding that Art. 36 Para.1 of the Vienna Convention on

Consular Relations “creates individual rights, which, by virtue of Article 1 of the Optional

Protocol, may be invoked in this Court by the national State of the detained person.”93 Thus,

the enforcement of rights of individuals can be pursued either on the international level, by

the home state representing its national94 or by the national itself if this is possible, or on the

national level by the individual.95 It follows from this that a right under international law

exists independently of the procedural capacity to enforce it under international law.96

(d) Secondary right

A right to compensation for an individual could not only be found in the provisions of Art. 3

of the Hague Convention IV and Art. 91 of the Additional Protocol I, but could also result as

a general secondary right from a violation of a primary right of the individual.

The strongest argument in favour of a secondary right to compensation may be taken from the

famous judgment of the Permanent Court of International Justice in the Factory at Chorzów

case. The PCIJ seems to presuppose the existence of a secondary right to compensation as a

necessary consequence of an act in violation of international law:

“The essential principle contained in the actual notion of an illegal act (…) is that reparation must, as far as possible, wipe out all the consequences of the illegal act (…).”97

This approach has recently been taken up by the ICJ in its advisory opinion on the Legal

Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The ICJ

deduced from the violations of international humanitarian law and human rights law an

obligation to afford compensation without recurring to an explicit provision on compensation.

Instead, the ICJ exclusively referred to the Permanent Court of International Justice and its

ruling in the Factory at Chorzów case and concluded that there was an obligation to afford

92 PCIJ, Jurisdiction of the Courts of Danzig, Advisory Opinion, PCIJ, Series B, No. 15, at p. 17,18 „…it cannot be disputed that the very object of an international agreement, according to the intention of the contracting parties, may be the adaptation by the parties of some definite rules creating individual rights and obligations and enforceable by national courts.” 93 P.H. Kooijmans, "Discussion", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 45; ICJ, LaGrand (Germany v United States of America), 27 June 2001, ICJ Reports 2001, at p. 29 para. 77. 94 B. Heß, "Kriegsentschädigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 107, at p. 174. 95 E. Roucounas, "Facteurs privé et droit international public", 299 RdC (2002), p. 48-49. 96 A. Randelzhofer, “The Legal Position of the Individual under Present International Law”, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual, 1999, p. 231 at p. 234; R. McCorquodale, “The Individual and the International Legal System”, in: International Law, M. Evans (ed.), 2003, p. 300 at p. 304. 97 Factory at Chorzów, Merits, Judgment, No. 13, 1928, PCIJ Series A, No. 17, p. 47.

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compensation to the individuals affected.98

Evidence in favour of a secondary right to compensation may be taken from the ILC Draft on

State Responsibility. Even if the ILC Draft on State Responsibility generally only deals with

the principles applying between States, it explicitly acknowledges the possibility that

individual rights may arise from an internationally wrongful act:

“This part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.” (Article 33 para. 2 ILC Draft on State Responsibility)

This paragraph forms part of the Chapter setting out the general principles concerning the

legal consequences of the internationally wrongful act which has triggered international

responsibility of a state. The quoted paragraph demonstrates that the ILC did not doubt the

existence of secondary rights for individuals even if it decided not to deal with them in its

draft articles.

According to the principles of international responsibility, it is generally the injured party

which can invoke state responsibility.99 If it were possible to apply the principles of the ILC

Draft on State Responsibility to situations in which responsibility is invoked by an individual

it could be said that the injured party is that party, to which the fulfilment of an obligation is

owed or which is especially affected by a breach of the obligation.100 As a rule, it seems, that

in case of an individual right, the respect of the rights is owed at least also to the individual; it

is clear, that particularly in the case of international humanitarian law, a violation of an

individual right especially affects the individual rather than the state. It may be considered

even one of the core functions of individual rights to detach those rights from the state’s

interest.

It could be argued that the principle of reciprocity underpinning numerous treaties stands in

the way of individual rights, in particular, individual secondary rights. However, in the field

of international humanitarian law, the principle of reciprocity only functions as a mechanism

determining the question of applicability of certain rules. According to Art. 2 of each of the

1949 Geneva Conventions, the treaty provisions are indeed only applicable vis-à-vis a party to

the conflict, if this party is a state party to the Convention as well. But if this condition is

fulfilled, the treaty provisions have to be respected irrespective of whether the other party is

98 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 152 et seq. 99 Factory at Chorzów, Merits, Judgment, No. 13, 1928, PCIJ Series A, No. 17, p. 47; Art. 42 ILC-Draft on Responsibility. 100 For states see Art. 42 ILC-Draft on Responsibility.

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keeping to its obligations under the Convention or not. This follows from Article 1 of each of

the 1949 Geneva Conventions, which demands to respect the Convention under all

circumstances.101 The fact that reciprocity is not the reason for the existence of an obligation

results also from the fact that some provisions have to be respected vis-à-vis nationals of the

state party as well as vis-à-vis third country nationals.102 Finally, at least the core provisions

such as the common Article 3 of the 1949 Geneva Conventions also apply outside the treaty

framework as customary international law erga omnes.103 Consequently, every state is bound

to respect those rules in an armed conflict and problems of reciprocity do not arise.

It is sometimes argued that the area of international humanitarian law is a self-contained

regime.104 The definition of a self-contained regime was used by the ICJ in the Case

concerning US Diplomatic and Consular Staff in Teheran in order to describe the law of

diplomatic relations as a system to which the general rules of state responsibility are not

applicable, as the system provides its own set of secondary rules.105 In the field of

international humanitarian law, there are indeed some rules differing from the general

principles of state responsibility, such as the restricted possibility of taking

countermeasures.106 However, some diverging rules do not lead to the inapplicability of the

general rules of state responsibility, as this would leave the field of international humanitarian

law with large gaps.107 The ILC has abandoned the concept of a self-contained regime and

considers rules which are differing from the general principles of state responsibility as lex

specialis (see Art. 55 of the ILC Draft on State Responsibility).108 In the absence of a special

norm in international humanitarian law stating the contrary, the general principles of state

responsibility are applicable in the field of international humanitarian law. A state is

responsible for violations of international humanitarian law and is required to make reparation

for the loss or injury caused.109 In the absence of rules providing for an exclusion of

101 J. Pictet, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary, I, 1952, Art.1, p. 25. 102 R. Provost, International Human Rights and Humanitarian Law, 2002, p. 128, 129. 103 J. Künzli, Zwischen Rigidität und Flexibilität: Der Verpflichtungsgrad internationaler Menschenrechte, 2001, p. 49-63; J. Kokott/K. Doehring /T. Buergentahl, Grundzüge des Völkerrechts, 2003, p. 136 No. 296. Different view see J.S. Watson, Theory & Reality in the International Protection of Human Rights, 1999, p. 79 et seq. 104 T. Kamenov, "The Origin of State and Entity Responsibility for Violations of International Humanitarian Law in Armed Conflicts", in: Implementation of International Humanitarian Law, F. Kalshoven/Y. Sandoz (eds.), 1989, p. 169, at p. 170}M. Eichhorst, Rechtsprobleme der United Nations Claims Commission, 2002, p. 94 et seq. 105 ICJ Reports 1980, 40 et seq. See B. Simma, "Self-contained Regimes", 16 Netherlands Yearbook of International Law (1985), p. 111. 106 Art. 46 Geneva Convention I, Art. 47 Geneva Convention II, Art. 13 Geneva Convention III, Art. 33 Geneva Convention IV, Art. 20, 51 Para. 6, 52 Para. 1, 53 lit. c, 54 Para. 4, 55 Para. 2, 56 Para. 4 of AdditionnaI Protocol I. 107 B.W. Eichhorn, Reparation als völkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer Berücksichtigung Deutschlands (1918-1990), 1992, p. 34; M. Sassòli, "State Responsibility for Violations of International Humanitarian Law", 84 IRRC (2002), p. 401, at p. 404. 108 Commentaries to the draft articles on Responsibility of States for internationally wrongful acts, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), p. 358; J. Crawford, "The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect", 96 ACIL (2002), p. 874, at p. 879, 880. 109 J.-M. Henckaerts /L. Doswald-Beck, Customary International Humanitarian Law, Vol. I Rules, 2005, p. 537, Rule 150.

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individual rights, the usual principles would seem to apply in this regard as well.

b) Reparation for Violations of the Ius ad Bellum

A violation of the ius ad bellum constitutes an international wrongful act which triggers the

responsibility of the violating state.110 State responsibility includes the obligation to provide

reparation for the loss and damage caused by the prohibited use of force. Reparation for a

violation of the ius ad bellum has to be made vis-à-vis the state against which the use of force

was directed. As the ius ad bellum is a rule protecting the territorial integrity of states, the

right to claim reparation is that of the state suffering from an unlawful use of force directed

against it. Even though an indirect effect of the prohibition of the use of force is also the

protection of individuals from violence, their welfare is not the main concern of the ius ad

bellum. Individuals are thus not vested with individual rights under the rules of the ius ad

bellum and are usually not the beneficiary of reparation paid for an infringement of these

rules.

This approach is corroborated by international practice. The Treaty of Versailles which was

concluded after the First World War ordered in its Art. 231 reparations to be paid by Germany

and its allies to the Allied and Associated Governments for the aggression of Germany and its

allies.111 The reason for the reparation is thus a violation of the ius ad bellum.112 Even though the

system of reparations in the Treaty was based on intergovernmental payments, the Treaty of

Versailles contained some individual rights.113 Interesting is especially Art. 297 lit e) of the

Treaty of Versailles, according to which nationals of Allied or Associated Powers could claim

compensation for damage or injury suffered by the application of an “exceptional war measure”

or “measures of transfer” before Mixed Arbitral Tribunals. The scope of these claims was

restricted as “exceptional war measures” were defined as measures that were taken with regard to

enemy property and which were lawful.114 Other losses of individuals resulting from the war

could not be claimed by the individuals themselves, as they were part of the reparation owed to

110 Principle 1 of Resolution A/RES/2625 (XXV) of 24 October 1970, Art. 5 Para. 2 of Resolution A/RES/3314 (XXIX) of 14 December 1974 and Art. 1 of Resolution A/RES/42/22 of 18 November 1987; BGH, Distomo, NJW 2003, p. 3492; F. Berber, Lehrbuch des Völkerrechts; Kriegsrecht, Zweiter Band, 1962, p. 239 § 48; I. Brownlie, International Law and the Use of Force by States, 1963, p. 147; P. d'Argent, Les réparations de guerre en droit international public, 2002, p. 449-461; W. Heintschel von Heinegg, "Entschädigung für Verletzungen des humanitären Völkerrechts", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 1, at p. 23; S. Kadelbach, "Staatenverantwortlichkeit für Angriffskriege und Verbrechen gegen die Menschlichkeit", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 63, at p. 66; different view K.J. Partsch, "Remnants of War", 78 AJIL 1984, p. 386, at p. 392-393. 111 RGBl. 1919, No. 140, 984. 112 I. Brownlie, International Law and the Use of Force by States, 1963, p. 138; P. d'Argent, Les réparations de guerre en droit international public, 2002, p. 50, 77; B. Heß, "Kriegsentschädigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 107, at p. 132. 113 B.W. Eichhorn, Reparation als völkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer Berücksichtigung Deutschlands (1918-1990), 1992, p. 75 et seq. 114 See Annex 1-3 to Section IV of the Treaty; H. Jsay, Die privaten Rechte und Interessen im Friedensvertrag, 1923, p. 156.

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their national government.115 The individual rights under the Treaty of Versailles are an

exception and cannot lead to the conclusion that individuals have a right to reparation resulting

from an infringement of the ius ad bellum. Rather, the individuals’ rights were attributed by the

Treaty of Versailles itself.116

For claims of nationals of the US, the US-German Mixed Claims Commission was installed after

the First World War.117 Claims of the individuals were represented by the US before the

Commission.118 Its mandate was much broader than those of the Mixed Arbitral Tribunals under

the Treaty of Versailles, covering also losses suffered by individuals as a consequence of

ordinary measures of the war.119 No differentiation was made as to whether the loss was a

consequence of a violation of international humanitarian law or not. Nevertheless, the system

under the US-German Mixed Claims Commission cannot be seen as affirming individual

rights to compensation resulting from a breach of the ius ad bellum. The US government did

not support the concept expressed by the Treaty of Versailles that Germany was legally

responsible to pay reparation for a violation of the ius ad bellum.120 The conduct of a war was

not forbidden, only the aggression towards the neutral Belgium was illegal at the time.121

Thus, the claims of US nationals under the system of the Commission are not based on a

concept of responsibility for an infringement of the rules of the ius ad bellum.

At the end of the Second World War, the Allied Powers were acting on the basis of an

assumption that Germany owed reparation to the Allied Powers as the aggressor state when

they started negotiating the modalities of reparation for the time after the war in Jalta and

continued their negotiations in Potsdam after the war.122

Under the system of the United Nations, Security Council Resolutions on the unlawful use of

force – for instance concerning the attacks of Lebanon in 1968, of Baghdad in 1981, and of

Tunis in 1985 by Israel, and the attack of Angola by South Africa in 1976123 – explicitly have

stated an obligation of an aggressor state to provide for reparation to the attacked state.

115 Art. 232 Treaty of Versailles, B.W. Eichhorn, Reparation als völkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer Berücksichtigung Deutschlands (1918-1990), 1992, p. 76; P. d'Argent, Les réparations de guerre en droit international public, 2002, p. 47 et seq. 116 H.U. Granow, "Ausländische Kriegsschäden und Reparationen", 77 AöR 1951/52, p. 67, at p. 68 117 The US did not ratify the Treaty of Versailles but concluded a separate treaty with Germany on 25 August 1921, according to which the US enjoyed all the rights resulting from the Treaty of Versailles, RGBl. 1921, 1371. The US-German Mixed Claims Commission was established by an agreement dates 10 August 1922, RGBl. 1923, 113. See W. Kiesselbach, Probleme und Entscheidungen der Deutsch-Amerikanischen Schadens-Commission, 1927, p. 1-2. 118 Ibid., p. 18. 119 See Decision No. 1 of the Commission of 1 November 1923, in: Ibid., p. 174 et seq. 120 D. Kube, Private Kriegsschäden in der völkerrechtlichen Praxis. Ein Beitrag zur Staatenverantwortlichkeit im Kriege, 1971, p. 389; P. d'Argent, Les réparations de guerre en droit international public, 2002, p. 74. 121 I. Brownlie, International Law and the Use of Force by States, 1963, p. 135 et seq. 122 Ibid., p. 142-147; B.W. Eichhorn, Reparation als völkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer Berücksichtigung Deutschlands (1918-1990), 1992, p. 44-45. 123 See with details P. d'Argent, Les réparations de guerre en droit international public, 2002, p. 313-318.

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Even though there is thus an obligation to pay reparation for a violation of the ius ad bellum

by the state infringing the rules towards the state suffering damage as a result from the

violation, the obligation is often not fulfilled.124 An exceptional example for a functioning

reparation regime for the violation of the ius ad bellum can be found in the United Nations

Compensation Commission125 (UNCC), which rules upon claims resulting from Iraq’s

unlawful invasion and occupation of Kuwait. This regime is insofar special as it not only had

been imposed on Iraq by a resolution of the UN Security Council but also provided for a

source from which reparation was to be paid. According to Resolution 687

“Iraq … is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of the unlawful invasion and occupation of Kuwait”.126

The wording of the resolution seems to suggest that individual victims are entitled to redress

for Iraq’s violation of the ius ad bellum under international law. However, the exact wording

does not necessarily specify the owner of the right but only enumerates the damages and

persons who may have suffered such damages. This leaves open whether the individual is the

owner of the claim or whether the state may also claim damages incurred by individuals as

reparation.

The procedural rules and the Commission’s practice clearly demonstrate a concept endowing

the individual who has suffered damages as described in the resolution of the Security

Council with a right to reparation.127 According to the wording of Art. 5 Para. 1 (a) of the

Provisional Rules for Claims Procedure, “a Government may submit claims on behalf of its

nationals”.128 Consequently, whereas the individual has no standing before the UNCC, the

state acts as representative for the individual before the Commission.129 It cannot be argued

124 Reparation is a sensible term for States since it seems to be regarded as an acknowledgement of a legal obligation. The question whether a payment is considered as “reparation” may even finally impede the payment. An interesting example for this may be found in the non-implementation of the treaty between the United States and Vietnam which ended the Vietnam War: Under Art. 21 of the Agreement Ending the War in Vietnam, the USA and the Democratic Republic of Vietnam agreed that „the United States will contribute to healing the wounds of war and to postwar reconstruction of the Democratic Republic of Viet-Nam and throughout Indochina“. See Agreement on Ending the War and Restoring Peace in Viet-Nam, signed at Paris on 27 January 1973, came into force on 27 January 1973, UN Treaty Series 174, 4. The US stated later that it would pay about $ 3,25 billions in order to fulfil this obligation; see letter of the President of the USA to the Prime Minister of Vietnam of 1 February 1973, reprinted in T.V. Minh, "Les réparations de guerre au Vietnam et le droit international", 81 RGDIP (1977), p. 1046, at p. 1099.The parties are arguing whether the payment has to be considered as a payment of a reparation or not, and the money has not been paid yet. See T.V. Minh, "Les réparations de guerre au Vietnam et le droit international", 81 RGDIP (1977), at p. 1086-1090. Even if such a disagreement cannot affect the obligation to pay reparation as a consequence of an unlawful use of force it seems to affect the willingness to fulfil it. 125 Established by S/RES/692 of 20 May 1991. 126 S/RES/687 of 3 April 1991. 127 C. Alzamora, "The UN Compensation Commission: An Overview", in: The United Nations Compensation Commission, R.B. Lillich (ed.) 1995, p. 3, at p. 8-9; J.R. Crook, "Is Iraq Entiteled to Judicial Due Process?" in: The United Nations Compensation Commission, R.B. Lillich (ed.) 1995, p. 77, at p. 80; N. Wühler, "The United Nations Compensation Commission", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 213, at p. 216. 128 UN Doc. S/AC.26/Dec.10 (1992), 26 June 1992. 129 B. Heß, "Kriegsentschädigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschädigung nach bewaffneten Konflikten.

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that the states are exercising diplomatic protection in favour of their nationals before the

Commission, as the states are also representatives for individuals which are not their

nationals, but which are residing within the states territory.130 Further, claims filed by states

on behalf of individuals are dependent on the consent of the individual as they have to be

accompanied by a signature of the individual whose claim is covered.131 The states have also

to assure to the individual claimant that any damage paid is distributed to the individual if

successful.132 The status of the state as representative for the individual is affirmed once more

by Art. 5 Para. 3 of the Provisional Rules for Claims Procedure, according to which a

corporation or other private legal entity may itself make a claim to the Commission,

independently from any assistance of a state, if the respective state fails to do so.133 Persons,

who were not in a position to have their claims submitted by their governments, will not be

deprived of their claim, as according to Art. 5 Para. 2 of the Rules an appropriate person,

authority or body shall be appointed to submit claims their behalf. Thus, an individual right to

obtain reparation for the loss suffered caused by Iraq’s unlawful invasion of Kuwait within

the reparation regime established by Resolution 687 can hardly be denied.

At the same time, there is no indication that the position accorded to individuals within the

reparation regime is an expression of a change in concept of the entitlement to reparation in

the case of a violation of the ius ad bellum. Since the primary right of the ius ad bellum only

protects the equality of states and their peaceful relations and thereby only pertains to states,

there is no reason to accept a secondary right pertaining to the individual. For practical

reasons, it may be useful to accord individual rights within a specific reparation regime in

order to facilitate the evaluation of damages incurred and the distribution of means granted by

way of reparation. This can be done by a resolution of the UN Security Council, by treaty or

also after the transfer of reparation to the victim state by national law in the respective

country. In case of the UNCC, the individual right to obtain redress for the loss suffered as

result from Iraq’s invasion, it seems, was attributed to the individual by the resolution of the

UN Security Council concerning Iraq’s liability and does not result from a principle

established under international law.

Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 107, at p. 158. 130 Art. 5 para.1 UNCC Provisional Rules for Claims Procedure, id., V. Heiskanen, "The United Nations Compensation Commission", 296 RdC (2002), p. 259, at p. 328. 131 UN Doc. S/AC.26/Dec.1 (1991), 2 August 1991, para. 19. 132 UN Doc. S/AC.26/Dec.18 (1994), 24 March 1994. 133 UN Doc. S/AC.26/Dec.10 (1992), 26 June 1992.

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2. International Human Rights Law

In the area of international human rights law, the possibility for an individual to obtain

compensation in case of a violation of one of its rights enjoys a wider recognition than in the

field of international humanitarian law. Even if the position of individual rights to

compensation in international humanitarian law were rejected, individual rights to

compensation could still arise under the human rights regimes.

a) Applicability of Human Rights Law in Situations of Armed Conflict

Human rights law with its substantive law and its enforcement mechanisms is applicable in

times of armed conflicts.134 By foreseeing the possibility to derogate from certain provisions

during an armed conflict but excluding this possibility for certain other provisions,135 a clear

assumption of the continued applicability of human rights in an armed conflict is contained in

the respective human rights conventions: some provisions only cease to apply if properly

derogated in accordance from in a defined procedure whereas others never cease to apply

irrespective of the circumstances. The specific set of rules regulating armed conflicts,

international humanitarian law, is therefore not a lex specialis in a sense that it would exclude

the application of human rights regimes. In as far as it provides detailed stipulations for the

conduct in an armed conflict it may only influence the interpretation of human rights law.136

It is sometimes argued that while human rights law supplements international humanitarian

law in situations of occupation and applies to civilians in the power of a party to the conflict

and not taking a direct part in the hostilities as well as to all persons hors de combat, it would

not be valid on the battlefield.137 This approach, however, fails to take into due account that

non-derogable human rights norms are clearly also guaranteed in the context of hostilities and

armed battle. The prohibition of an arbitrary deprivation of the right to life, for example,

guaranteed under human rights law, also encompasses unlawful killings on the battlefield.138

The ICJ put it in the following terms in the Nuclear Weapons case:

“[T]he test of what is an arbitrary deprivation of life, however, then falls to be

determined by the applicable lex specialis, namely, the law applicable in armed

134 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 240 Ziff. 25; C. Greenwood, "Rights at the Frontier - Protecting the Individual in Time of War", in: Law at the Centre, B.A.K. Rider (ed.) 1998, p. 277, at p. 279; J. Künzli, Zwischen Rigidität und Flexibilität: Der Verpflichtungsgrad internationaler Menschenrechte, 2001, p. 100-108; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9.7.2004, ICJ Reports 2004, p. Ziff. 106. 135 See e.g. Art. 4 ICCPR, Art. 15 ECHR, Art. 27 ACHR. 136 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 2004, p. para. 25. 137 D. Kretzmer, "Human Rights: Their Place on the Battlefield",Transcripts of the Conference "The Law of Armed Conflict: Problems and Prospects", 18-19 April 2005, p. 51, at p. 55. 138 J.-M. Henckaerts /L. Doswald-Beck, Customary International Humanitarian Law, Vol. I Rules, 2005, p. 313 et seq.

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conflict which is designed to regulate the conduct of hostilities.”139

The application of human rights norms also is not limited in principle in situations of

belligerent occupation. At least in those cases, in which a state exercises effective control of

the relevant territory and its inhabitants outside its own territory it is recognised that it is

responsible for the compliance with human rights obligations.140

b) Norms Explicitly Granting an Individual Right to Compensation

There are norms within the system of human rights law which explicitly provide for a right to

compensation. Whereas some of these norms establish a right to compensation vis-à-vis the

national authorities and courts in cases where a specific right, for instance the right to liberty,

has been violated, other provisions equip the respective international court with a possibility

to grant compensation for any violation of rights enshrined in the respective treaty.

The regional human rights conventions contain a provision according to which the regional

human rights court may grant compensation. Under Art. 41 of the European Convention on

Human Rights141, the Court “shall, if necessary, afford just satisfaction to the injured party”.

Art. 63 Para. 1 Sentence 2 of the American Convention on Human Rights142 states that the

Court shall “rule, if appropriate, that the consequences of the measure or situation that

constituted the breach of such right or freedom be remedied and that fair compensation be

paid to the injured party.” An equal provision is to be found in Article 27 of the Protocol on

the African Charter on Human and Peoples’ Rights, which came into force on 25 January

2004.143 According to these provisions, compensation has to be made in cases of all violations

of all rights guaranteed under the respective convention if necessary or appropriate.

As these norms are codified as provisions giving the courts the competence to rule on

compensation, they presuppose – it may be argued – an unwritten right to compensation for

the individual recognised by the state parties.144 The Inter-American Court of Human Rights

refers in its decisions to the principle of state responsibility, according to which reparation has

139 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 2004, p. para. 25. 140 A summary of the case law of the European Court of Human Rights on this issue can be found in the decision on admissibility in the Bankovic case, Bankovic et al. v. Belgium et al., Decision as to the admissibility of 12 December 2001, Application No. 52207/99, in particular paragraphs 59 et seq. 141 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, signed on 4 November 1950 respectively 11 May 1994, entered into force on 3 September 1953 respectively 11 January 1998, ETS No.: 005 and 155. 142 Signed at San José, on 22 November 1969, entered into force on 18 July 1978, 1144 UN Treaty Series, p. 143. 143 Art. 27 reads: “If the Court finds that there has been violation of a human or peoples' rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation .” The Protocol was adopted on 10 July 1998 and entered into force on 25 January 2005, available at http://www.achpr.org. 144 F. Ossenbühl, Staatshaftungsrecht, 1998, p. 530.

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to be made for every violation of a right under international law which results in a loss.145 It

usually mentions the Factory at Chorzów decision of the PCIJ as a reference. Consequently,

the respective judgment, as well as the principles of state responsibility clarified in it, is

understood as applying also in the relationship between an individual whose rights have been

violated and the state responsible for the violation. This approach is confirmed by the ICJ’s

advisory opinion concerning the Israeli wall in the occupied territories.146 The European Court

of Human Rights does not refer to general principles of state responsibility but recurs to the

Convention itself: it states that the determination of a violation of a right protected under the

Convention prompts, pursuant to Art. 46 ECHR, the duty of a state to follow the decision,

which includes the payment of compensation if necessary.147

International human rights treaties also provide explicit rules on compensation in case of

specific violations. In these cases, compensation shall be granted by domestic courts and

authorities. Compensation has to be made if a final sentence is based on a miscarriage of

justice, see Art. 14 Para. 6 of the International Covenant on Civil and Political Rights

(ICCPR), Art. 10 American Convention on Human Rights (ACHR),148 and Art. 3 of the

Seventh Protocol to the European Convention on Human Rights (ECHR); in case of

spoliation according to Art. 21 Para. 2 African Charter on Human and Peoples’ Rights

(ACHPR),149 and in case of an unlawful arrest or detention pursuant to Art. 9 Para. 5 ICCPR

and Art. 5 Para. 5 ECHR. Some of these rules provide an individual right to compensation

whereas others only establish an obligation of the state to provide for compensation in the

framework of domestic law (for instance, Art. 14 Para. 6 ICCPR provides that the victim

“shall be compensated according to law”). As far as a convention is applicable within the

domestic legal order and the respective provision does not refer to national law, it may serve

as the basis for a claim before domestic courts.150 For instance, the German Federal Supreme

Court recognised an individual claim to compensation based on Art. 5 Para. 5 ECHR.151

c) General Obligation to Compensate for Violations under the Heading

145 I-ACtHR, Velásques Rodrígues v Honduras, Compensatory Damages, 21 July 1989, Series C No 7, para. 25; I-ACtHR, The Mayagna (Sumo) Awas Tingni Community, 31 August 2001, Series C, No 79, para. 163. 146 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 152 et seq. 147 ECHR, Papamichalopoulos and Others v. Greece, 25 October 1995, Series A No. 330-B, para. 34; ECHR, Scozzari and Giunta v. Italy, 13 July 2000, nos. 39221/98 and 41963/98, para. 249; ECHR, Maestri v Italy, 17 February 2004, no. 39748/98, para. 47. 148 Art. 10 ACHR reads: “Every person has the right to be compensated in accordance with the law in the event he has been sentenced by a final judgment through a miscarriage of justice.” 149 Art. 21 Para. 2 ACHPR reads: “In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.” 150 J.A. Frowein /W. Peukert, Europäische Menschenrechtskonvention, 1996, p. 145 Art. 5 para. 156; different view C. Tomuschat, Human Rights: Between Idealism and Realism, 2003, p. 298, 303. 151 BGHZ 122, p. 268 at p. 280.

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of the Right to an Effective Remedy

Some international conventions on human rights contain a state obligation to provide an

effective remedy, for instance Art. 2 Para. 3 lit. a ICCPR, and Art. 6 of the Convention on

Elimination of All Forms of Racial Discrimination.152 Such an obligation to provide for an

effective remedy does not only have a procedural, but enshrines also a substantive meaning:

In relation to Art. 2 Para. 3 lit. a ICCPR, the Human Rights Committee stated that the

obligation to create an effective remedy includes the obligation of the violating state to pay

compensation if necessary.153 The ACHR and the ACHPR do not contain an explicit right to

an effective remedy. However, the Inter-American Court on Human Rights stated that the

undertaking of the states in Art. 1 Para. 1 ACHR to respect the rights and freedoms of the

convention contains the obligation „to provide compensation as warranted for damages

resulting from the violation“ within the domestic legal order.154 The African Commission

found an obligation to provide a right to compensation in the right to a fair trial guaranteed in

Art. 7 ACHPR.155

As these obligations to provide for an effective remedy are only directed at states demanding

them to provide for compensation in their domestic legal system, the provisions do not

contain an individual right under international law.156 In contrast to that, the ECHR does not

only stipulate a state obligation but formulates in Article 13 ECHR an immediate right to an

effective remedy for individuals under international law. Again, the right encompasses a

procedural and a substantive aspect, as the European Court of Human Rights confirmed in

Aksoy v. Turkey:

“Accordingly, as regards Article 13, where an individual has an arguable claim that he

152 The Article reads: “States Parties shall assure to every one within their jurisdiction effective protection and remedies, through the competent national tribunals and other State organisations, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.” 153 Albert Wilson v. Philippines, Communication No. 868/1999 (11 November 2003), UN Doc. CCPR/C/79/D/868/1999 (2003); see also T. van Boven, "The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms", in: The Living Law of Nations, Essays on Refugees, Minorities, Indigenous Peoples, and the Human Rights of Other Vulnerable Groups, In Memory of Atle Grahl-Madsen, G. Alfredsson/P. Macalister-Smith (eds.), 1996, p. 339, at p. 344, 345; E. Klein, "Individual Reparation Claims under the International Covenant on Civil and Political Rights: The Practice of the Human Rights Committee", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 27, at p. 30, 31; M. Nowak, "The Right of Victims of Gross Human Rights Violations to Reparation", in: Rendering Justice to the Vulnerable, Liber Amicorum in Honour of Theo van Boven, F. Coomans/F. Grünfeld/I. Westendorp/J. Willems (eds.), 2000, p. 203, at p. 206, 207 with further references. 154 ACHR, Velásques Rodrígues v Honduras, Inter-Am.Ct.H.R. (Series C), para. 166. 155 E.A. Ankumah, The African Commission on Human and Peoples' Rights, 1996, p. 132; J. Harrington, "The African Court on Human and Peoples' Rights", in: The African Charter on Human and Poeples' Rights: the system in practice, 1986-2000, M.D. Evans/R. Murray (eds.), 2002, at p. 324. 156 R. Pisillo-Mazzeschi, "International Obligations to Provide for Reparation Claims?" in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 149, at p. 165; C. Tomuschat, "Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International Law", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 1, at p. 10.

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has been tortured by agents of the State, the notion of effective remedy entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation…”157

d) Applicability of the Norms providing for Compensation in Times of

an Armed Conflict

The rules on compensation outlined above remain applicable in times of an armed conflict. In

Art. 27 Para. 2 ACHR it is stated that a suspension of the judicial guarantees essential for the

protection of rights is not possible in times of an armed conflict. As confirmed by an Advisory

Opinion of the Inter-American Court on Human Rights, these guarantees include the right to

an effective remedy and to provide redress.158 Even though not explicitly stated in the ICCPR,

the Human Rights Committee found that

“Article 2, paragraph 3, of the Covenant requires a State party to the Covenant to provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective.”159

This principle has also been recognised by the European Court of Human Rights. In respect to

the conflict in Chechnya, Russia had not derogated any of the rights guaranteed by the

Convention. Considering claims of persons injured or killed during the conflict, the Court

granted compensation to the victims under Art. 41 ECHR in Isayeva, Yusupova and Bazayeva

v. Russia and Isayeva v Russia. The injuries and killings were the result of unnecessary air

raids by Russia.160

3. National Law

Individual rights to compensation for persons having suffered damage in the course of an

armed conflict may also exist in the framework of a national legal system. Claims may be

based on violations of international law, or arise under the law of a State, be it tort law or the

157 (1996) VI Reports of Judgments and Decisions, p. 1988, § 98; see also ECHR, Isayeva v Russia, 24 February 2005, Application No. 57950/00, para. 227; ECHR, Isayeva, Yusupova and Bazayeva v Russia, 24 February 2005, Application Nos. 57947/00, 57948/00 and 57949/00, para. 237. 158 I-ACtHR, Advisory Opinion OC-9/87 of. Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 25(8) American Convention on Human Rights, 6 October 1987, Series A No. 9, para. 22-24. 159 General Comment 29 on States of Emergency (Art. 4) of the UN Human Rights Committee, CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 14. 160 I-ACtHR, Bamaca Velasquez v Guatemala, Merits, 25.11.2000, Series C No. 70, para. 241 et seq; ECHR, Isayeva v Russia, 24 February 2005, Application No. 57950/00, para. 231 et seq.

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law on state liability, without making any reference to international law.161

a) Claims based on Violations of International Law

A prominent example for claims under domestic law which are based on violations of

international law is the so-called “Human Rights Litigation” in the United States of America.

Claims are mainly filed under the Alien Tort Claim Act of 1789 (ATCA),162 which states that

“[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

It seemed that the ATCA not only provided a rule establishing jurisdiction but also constituted

a cause of action. However, in its recent judgment in Sosa v. Alvarez-Machain, the US

Supreme Court ruled that the ATCA is a strictly jurisdictional statute.163 It held that the

ATCA was enacted on the understanding that the common law would provide a cause of

action for the modest number of international law violations thought to carry personal liability

at the time.164 Nowadays, federal courts could recognize claims under federal common law for

violations of a norm of international law if the norm has a definite content and acceptance

among civilized nations, such as the 18th-century paradigms in place when the ATCA was

enacted.165 In allowing actions under the ATCA for violations of widely accepted

international norms,166 the US recognises secondary rights of individuals to compensation

resulting from a violation of an international norm having the required qualifications.

Concerning claims for compensation resulting from acts of an armed conflict, proceedings in

US courts have had very different outcomes so far. A considerable amount of cases resulting

from the Second World War were settled; see, e.g., the recent decision in Rosner v. US

concerning claims against the US resulting from the confiscation of a train loaded with stolen

Jewish property.167 Thus, the courts did not have to rule whether or not claims by victims of

an armed conflict can succeed in court proceedings. In various cases, the claims were

dismissed on procedural grounds.168 Relying on the political question doctrine, the court ruled

for example in Burger-Fischer et al. v. Degussa AG, that “under international law claims for

compensation by individuals harmed by war-related activities belong exclusively to the state

161 For human rights violations see G. Fischer, „Schadenersatzansprüche wegen Menschenrechtsverletzungen im Internationalen Privat- und Prozessrecht“, in: Festschrift für Walter Remmers, 1995, p. 447, at p. 450 et seq. 162 28 U.S.C. §1350.�163 Sosa v Alvarez-Machain, 124 S.Ct., p. 2739, at p. 2754.�164 Ibid., at p. 2761.�165 Ibid. �166 C. Ryngaert, "The U.S. Supreme Court's Decision in Sosa v. Alvarez-Machain", 6 International Law FORUM du droit international

(2004), p. 116, at p. 121.�167 (S.D.Fla.), Rosner v US, 231 F.Supp.2d 1202; Settlement Agreement approved in a written order dated 8 April 2005;

(www.hungariangoldtrain.org/index_en.asp).�168 See overview given in Alperin v. Vatican Bank, 405 F.3d 727 (9th Cir. 2005), at p. 740 et seq.�

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of which the individual is a national.”169 However, this statement seems to be no longer valid

after the decision of the Supreme Court in Republic of Austria v. Altmann concerning assets

looted in the Second World War.170 Even though the judgment and an earlier decision to grant

certiorari on the same issue dealt only with the limited question of immunity,171 the Court of

Appeal in Alperin v. Vatican Bank interpreted the decision of the Supreme Court to allow the

case to proceed as an affirmation that courts have a place in deciding Holocaust-era claims.172

In its decision, the Court of Appeal differentiated between claims concerning conversion,

unjust enrichment, restitution, and an accounting with respect to lost and looted property and

other claims including slave labour claims. As the latter would require a retroactive political

judgment, such claims would concern a political question which is not justiciable.173

b) State Liability, Tort Law

If a loss or damage is suffered by a civilian during an international armed conflict, claims for

compensation could arise under domestic state liability law or tort law. If the loss is related to

the armed conflict, national courts are often reluctant to recognise such claims irrespective of

the lawfulness of the harming act. The reasons invoked to deny such a claim are manifold:

there is the issue of state immunity, if a claim is filed before the domestic courts of the alleged

perpetrator state174 (1); the argument that national law is suspended in times of an armed

conflict (2), or that reparations claims belong exclusively to a state (3).

(1) Nowadays, a general exclusion of all claims against states before the own domestic

courts usually no longer exists.175 States have even the obligation to provide for an effective

169 65 F.Supp.2d 248 (D.N.J. 1999), at p. 273. See also Tel-Oren et al v Libyan Arab Republic, 726 F.2d 774 (App.D.C.), at p. 810; Goldstar (Panama) SA v. United States (4th Cir. 1992), 96 ILR (1994), p. 55, ar p. 58-59; Princz v. Federal Republic of Germany, 26 F.3d 1166 (US App.D.C. 1994). �

170 Supreme Court, Republic of Austria v Altmann, 7 June 2004, 124 S.Ct., 2240.�171 The Court held that the United States Foreign Sovereign Immunities Act (FSIA) applies retroactively to the claim. 172 405 F.3d 727 (9th Cir. 2005).�173 Ibid.�174 State immunity before foreign national courts cannot be discussed here. 175 D. Shelton, Remedies in International Human Rights Law, 1999, p. 64 et seq. In former times, according to the so called crown immunities in the tradition of common law, claims against the government for unlawful acts for its organs were bared from jurisdiction until 1947 („The King can do no wrong.” Court of Appeal, Mulcahy v Ministry of Defence, 21 February 1996, [1996] QB 732, at p. 740; C. Grabenwarter, Europäische Menschenrechtskonvention, 2003, p. 410, § 24 para. 116. A claim was only possible against the individual acting for the government, see High Court of Australia, Shaw Savill and Albion Company Ltd v The Commonwelth, 5 December 1940, 66 CLR 344, at p. 352, 360). Similarly, according to the Kokka-Mut�seki doctrine, the doctrine of the irresponsibility of the state, the Japanese government was not responsible to its citizens for damages caused by its acts performed in the exercise of official authority (S.H. Bong, "Compensation for Victims of Wartime Atrocities", 3 JICL (2005), p. 187, at p. 191). The application of this doctrine to claims concerning compensation for violations of humanitarian law is not uniform. While the Japanese government has successfully escaped responsibility in some cases by relying on the doctrine, some district courts rejected in recent decisions the doctrine when considering claims for forced labour and forced transportation, as these are unlawful acts not giving rise to a special protection (See for an illustration and citations of the relevant judgments S.H. Bong, "Compensation for Victims of Wartime Atrocities", 3 JICL (2005), p. 187, at p. 195 et seq). Whilst the Kyoto and the Tokyo District Court eventually dismissed the claims on the grounds of the statute of limitations, a case before the Niigata District Court was successful; the court ordered the government to pay compensation applying the provisions on unlawful acts (S.H. Bong, "Compensation for Victims of Wartime Atrocities", 3 JICL (2005), p. 187, at p. 196 et seq; the government appealed in the case). With the adoption of the State Compensation Law in 1947, which provides for the responsibility of the Japanese state to pay compensation for damages caused by illegal acts of public officials in performing their duties, the Kokka-Mut�seki doctrine is obsolete.

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remedy for individuals pursuant to the international and regional human rights conventions,

which means that states have to allow proceedings against the government for alleged human

rights violations.176 Nevertheless, some domestic laws or courts exclude claims against the

government for military acts or acts resulting from a wartime scenario. Under US law, e.g.,

where state immunity is not eliminated and actions against the government must be authorised

through an explicit waiver of the immunity by congress, the Federal Tort Claims Act

(FTCA)177 waives the sovereign immunity of the US for claims for money damages for injury

or loss of property, or personal injury or death caused by federal governmental agents.

Similarly, the Administrative Procedure Act (APA)178 makes the US liable for non-monetary

suits against federal agencies under specified conditions. However, both, the FTCA and the

APA exclude from its review actions based on “combatant activities of the military or naval

forces […] during time of war”179 respectively "military authority exercised in the field in

time of war or in occupied territory."180

Under the heading of "combat immunity", claims related to immediate operational decisions

and actions in a situation of war or analogous situations are dismissed by courts in the

Commonwealth.181 The majority of judges of the Australian High Court ruled in 1940:

„The uniform tendency of the law has been to concede to the armed forces complete legal freedom of action in the field, that is to say in the course of active operations against the enemy, so that the application of private law by the ordinary courts may end where the active use of arms begins. Consistently with this tendency the civil law of negligence cannot attach to active naval operations against the enemy.”182

One of the judges agreed with the majority that actions of the armed forces on a battlefield are

not justicable before national courts during the armed conflict; however, he argued that if the

conflict has come to an end, courts might rule upon the actions.183

More recent decisions also exclude the application of civil liability to battlefield situations. In

Mulcahy v Ministry of Defence, an English Court of Appeal ruled in 1996 that a claim would

be excluded as the loss was suffered in the course of an actual military action taking place

176 Art. 8 ACHR, Art. 2 Para.3 ICCPR, Art. 13 ECHR. 177 28 U.S.C. §§ 1346, 2671-2680. 178 5 U.S.C. § 702: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 179 28 U.S.C. § 2680 (j). 180 5 U.S.C. § 701 (b) (1) (g). 181 The courts refer to the principle of „combat immunity“, even though the point is not strictly one of immunity, but of the constricted scope of the duty of care. See J. Rowley, "Combat Immunity and the Duty of Care", 4 Journal of Personal Injury Law (2004), p. 280, at p. 281. 182 High Court of Australia, Shaw Savill and Albion Company Ltd v The Commonwelth, 5 December 1940, 66 CLR 344, at p. 362. The owner of a ship had sued the Commonwealth of Australia in the High Court of Australia in Admiralty for damages in consequence of a collision which occurred between a military ship and a civil motor vessel.

183 Ibid., at p. 356, 367.

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during an armed conflict.184 It denied the claim as “those engaged in fighting the enemy

should not have to concern themselves with the possibility of actions against them for

negligence.”185 The underlying facts of the case are insofar special as the Court was not

considering a claim of a civilian, but of a soldier who allegedly had suffered injury from

negligence of the gun commander during the Second Gulf War. The Court made it clear,

however, that the principle would also apply to claims made by civilians.186

The statutes and courts deny claims arising out of a battlefield situation in order to protect the

freedom of decision and action in military operations. It is clear that there are different rules

applicable in time of an armed conflict than in time of peace, but this does not mean that the

conduct of armed forces in an actual military action is not regulated at all. International

humanitarian law, the rules regulating the conduct of an armed conflict, take considerations of

military necessity into account. Armed forces have to obey these rules even on the battlefield;

and if they infringe them, they have to be held accountable for that. International

humanitarian law thus influences national claims. The compliance of a harming act with the

rules of international humanitarian law can be invoked as justification or change the standard

of negligence. As Judge Elias of the English High Court stated:

„The difficulties of their task are reflected in the standard of the duty rather then by

denying it’s applicability.“187

(2) Under German law, claims against the government for unlawful acts were already

permitted at the time of the Second Word War.188 The German Federal Supreme Court has

found another way to dismiss claims arising out of the Second World War. The Court drew on

the fact that a German law provided that a foreigner could only claim compensation under

state liability law on the basis of reciprocity. Moreover, it held that the national system of

state liability is suspended in times of war and that therefore claims under national law do not

exist – at least, according to the situation prevailing at the time of World War II.189 A German

Regional Higher Court applied this reasoning also to claims made by victims of the NATO air

raids in Yugoslavia.190 The Court of Appeal dismissed this argumentation. It held that whilst

184 Court of Appeal, Mulcahy v Ministry of Defence, 21 February 1996, [1996] QB 732. 185 Ibid., at p. 735. 186 Ibid., at p. 750: „If during the course of hostilities no duty of care is owed by a member of the armed forces to civilians or their property, it must be even more apparent that no such duty is owed to another member of the armed forces.” 187 Judge Elias in Queen's Bench Division, Bici v Ministry of Defence, [2004] EWHC 786 (QB), para.104. 188 See § 839 Bürgerliches Gesetzbuch (German Civil Code) in conjunction with Art. 131 Weimarer Reichsverfassung (Constitution of Weimar); now § 839 Bürgerliches Gesetzbuch in conjunction with Art. 34 Grundgesetz (German Basic Law). However, claims for compensation against the government by foreign individuals were only possible until 1993, if the home state of the injured individual foresaw the possibility of claims against the foreign government by German nationals; RGBl. I, 1910, 798. 189 BGH, Distomo, NJW 2003, p. 3488 et seq. 190 LG Bonn, NJW 2004, pp. 525, 526.

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claims under the law of state liability were excluded at the time of World War II, this

approach could no longer be upheld.191 Regarding the development of international law and

the law of state liability as it stands nowadays, claims under national law resulting out of an

armed conflict could exist next to a claim of a state for reparation under international law. The

appeal of the victims was nevertheless not successful, as the Court ruled that there was no

violation of a legal rule, which would have been a condition for a claim.

The view that the national system of state liability is automatically suspended during an

armed conflict is not convincing.192 There is no legal provision justifying the conclusion that

the domestic legal system of state liability should cease to operate in time of an armed

conflict. Moreover, both the logic of a system of the rule of law as well as considerations

under international humanitarian law speak in favour of a continued application of state

liability rules. Taking into account modern expectations of a system of a rule of law, it would

be surprising to see liability suspended exactly in a situation where the state applies its most

powerful means. The intention of the idea of a suspension of liability rules seems to be to put

efficiency in warfare above individual rights. This idea at least does not go along with the

fundamental idea of international humanitarian law which seeks to draw certain absolute

limitations on the efficiency of warfare in favour of individuals. As long as these absolute

lines are respected, international humanitarian law allows for comprehensive reflection of

military necessity in determining what is right and what wrong. These differentiations should

also determine the scope of state liability. Consequently, the most convincing approach would

be to interpret state liability law in the light of international humanitarian law.

(3) Further, in order to deny claims under domestic law, it is argued that as a war is a

conflict between states, it can only provoke reparation claims between states.193 Sometimes,

reference is made to a rule allegedly existing under international law which demands

reparation to be made under international law and excludes claims under domestic law.194 Or

it is argued that claims of individuals are absorbed by the reparation claim of a state.195

There is no international norm restraining claims resulting from an international armed

191 OLG Köln, decision of 28 July 2005, 7 U 8/04. 192 For the application of state liability in these situations see H. Giessler, "Die Grundsatzbestimmungen des Entschädigungsrechts", in: Die Wiedergutmachung nationalsozialistischen Unrechts durch die Bundesrepublik Deutschlands, W. Bruns/H. Giessler/H. Klee/W. Maier/K. Weiss (eds.), Band IV, Das Bundesentschädigungsgesetz, Erster Teil, 1981, p. 1, at p. 2; J.A. Kämmerer, "Kriegsrepressalie oder Kriegsverbrechen?" 37 AVR (1999), p. 283, at p. 310. 193 See above ; H. Gurski, "Kriegsforderungen",AWD 1961, p. 12, at p. 14-15. 194 H.U. Granow, "Ausländische Kriegsschäden und Reparationen", 77 AöR (1951/52), p. 67, at p. 71; F. de la Croix, "Schadenersatzansprüche ausländischer Zwangsarbeiter",NJW 1960, p. 2268, at p. 2269. 195 B.W. Eichhorn, Reparation als völkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer Berücksichtigung Deutschlands (1918-1990), 1992, p. 78-81.

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conflict to an international regulation.196 In the past, states indeed very often waived claims of

their nationals against foreign states or agreed not to pursue such claims in peace treaties.197

But such waivers rather speak in favour of the assumption that claims of individuals are not

automatically excluded under a rule of international law. Moreover, there are also peace

treaties where individual claims were not waived.198 Furthermore, the existence of a waiver

rather seems to confirm that claims initially existed. Following this line of argument, the

German Constitutional Court ruled that claims under the domestic legal order may exist in

parallel to potential claims under international law and there is no rule or principle according

to which claims in the context of an international armed conflict have to be solved under

international law.199

Under international law, states even have the obligation to compensate victims of human

rights violations or at least the obligation to provide for legislation to provide for

compensation.200 If states could exclude individual claims without providing other

compensation schemes, they would contradict their duties under international law in as far as

they are responsible for a violation under the respective human rights treaty. Heß rightly

points out that in the discussion about the existence of claims under domestic law very often

no proper differentiation is made between the substantive claim and the procedural way to

enforce the claim.201 As international armed conflicts very likely result in situations of mass

violations, individual domestic claims may be deferred by compensation mechanisms under

international or national law including under compensation schemes in the framework of

social security system.202 These other ways of compensation for victims do not change the

fact that claims under national law initially may have existed.

4. Special Situation of Mass Violations

In general, the principle for correcting an internationally wrongful act by granting

compensation is that compensation must be provided in full. 203 Unfortunately, armed

conflicts frequently result in situations of mass violations. Full compensation to every

individual having suffered from any infringement of a right may well be far beyond the

196 M. Domke, "Individualansprüche für völkerrechtliche Deliktshaftung?" 58 SJZ (1962), p. 2, at p. 4. 197 For a list of such treaties see ibid; and BVerfG 94, p. 315 at p. 332 et seq. 198 See BVerfG 94, p. 315 at p. 332. 199 BVerfG 94, p. 315 at p. 331-332. See also B. Heß, Kriegsentschädigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht, l.c., p. 115 et seq. 200 See Art. 2 Para. 3 lit. a IPBPR; Art. 13 ECHR; Art. 1, 25 ACHR, Art. 7 ACHPR. 201 B. Heß, "Kriegsentschädigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschädigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Völkerrecht (ed.) 2003, p. 107, at p. 116. 202 Ibid. 203 PCIJ, Factory at Chorzów, Merits, PCIJ, Series A, No. 17, at p. 47; Art. 31 ILC-Draft on Responsibility.

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economic capacities of the violating state and may destabilise a fragile peace after the fighting

has ended. It may also be impossible to carry out an individualised evaluation of every

damage suffered without creating enormous administrative capacities and delaying the

process of compensation for extended periods. Long delays for compensation payments

negatively affect goals of compensation, in particular the function to provide satisfaction to

victims in order to foster reconciliation in war torn societies or neighbouring countries.

The question arises whether it is possible to take into account the economic and political

situation with a view to the exact conditions under which a claim may be exercised and

eventually regarding the amount which is owed.

a) Practice of States and International Bodies

In the past, peace treaties or other acts regulating a post-war situation often limited the

obligation to make reparation as economical constraints of the debtor were recognised.

Art. 14 lit. a of the Treaty of San Francisco dated 8 September 1951 provides:

“It is recognised that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war. Nevertheless it is also recognised that the resources of Japan are not presently sufficient if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the same time to meet its other obligations.”204

Also, reparation claims by the Allied Powers against Germany after WW II were limited by

the idea not to overburden German economy. Even though the Allied Powers did not settle on

an explicit limitation of the amount in the Treaty of Potsdam, at least they agreed that

reparations would have to be taken out of Germany within a period of two years.

Most explicit in taking into account economic factors was the Security Council in the

aftermath of the Iraqi invasion of Kuwait. When establishing the UNCC and the fund from

which compensation was to be paid according to the decisions of the UNCC, Resolution 687

directed the Secretary General to present to the Security Council:

“mechanisms for determining the appropriate level of Iraq’s contribution to the Fund, based on a percentage of the value of its exports of petroleum and petroleum products, not to exceed a figure to be suggested to the Council by the Secretary-General, taking into account the requirements of the people of Iraq, Iraq’s payment capacity (…) taking into consideration external debt service, and the needs of the Iraqi economy”.205

204 UN Treaty Series Vol. 136, No. 1832. 205 S/RES/687 (1991), para. 19.

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As a consequence, according to Resolution 705,206 thirty percent of the revenue from the sale

of Iraqi oil is used for the operational costs of the UNCC and the funding of the compensation

payments. To allocate the financial resources and to facilitate the procedure, claims were

categorised according to the injury suffered by the victim and the amount of money

claimed.207 A fixed amount of compensation is paid in a mass claims procedure with a relaxed

standard of proof. If the individual wants to get full compensation, a higher standard of proof

has to be fulfilled.

In its Decision No. 2, the EECC in principle followed this concept of categorisation and set up

categories of claims depending on the injury suffered.208 A fixed amount of compensation can

be obtained in a mass claims procedure.

Under the system of the UNCC, a procedure under the payment programme does not preclude

claims to be made before national courts.209 The fixed amount of compensation under the

UNCC does not extinguish a potential right of the individual to obtain full compensation for a

violation of the ius in bello before national courts. In contrast, Art. 5 Para. 8 of the Peace

Agreement between Eritrea and Ethiopia provides that “[e]xcept for claims submitted to

another mutually agreed settlement mechanism in accordance with paragraph 16 or filed in

another forum prior to the effective date of this Agreement, the Commission shall be the sole

forum for adjudicating claims described in paragraph 1 or filed under paragraph 9 of this

article, and any such claims which could have been and were not submitted by that deadline

shall be extinguished, in accordance with international law.” This exclusivity of the EECC

was not recognised in Nemariam v Ethiopia by the competent US Court of Appeal.210 It ruled

that property damage claims before US courts by Ethiopian citizens of Eritrean descent for

property confiscated during the Eritrean Ethiopia conflict are not excluded by the Peace

Agreement. The doctrine of forum non conveniens would not apply as the EECC would not be

an adequate alternative forum, as an award could not be made directly in favour of the

individual, and as the states could set off their respective claims.211

As for infringements of international humanitarian law, the state practice is divers. When

claims were heard and recognised before courts, the amount of compensation was not limited.

In contrast to this approach, national funds and foundations as well as the international

206 S/RES/705 (1991). 207 N. Wühler, "The United Nations Compensation Commission", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 213, at p. 218 et seq. 208 http://www.pca-cpa.org/ENGLISH/RPC/EECC/Decision%202.pdf. 209 Decision No. 13, S/AC.26/1992/13; E. David, Principes de droit des conflict armés, 2002, p. 637 para. 4.34. 210 (App.D.C. 2003) 315 F.3d 390. 211 (App.D.C. 2003) 315 F.3d 390, 394 et seq.

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commissions like the EECC are often paying only a fixed amount of money not necessarily

reflecting the full injury suffered by the victims.

In particular, in the framework of the German Foundation “Remembrance, Responsibility and

Future”, an overall ceiling amount was fixed at 5 billion Euro. This ceiling approach and the

overall amount was consented in an international treaty by the German and the US

governments and in a declaration issued by all parties involved in the international

negotiations leading to the establishment of the Foundation, including governments of central

and eastern European victim states as well victim’s organisations and lawyers. The overall

amount which was provided by the German State and German industry was to be distributed

to an unknown number of eligible claimants. In order to establish the final amount to be paid

to each victim of a certain category, payments were made in two instalments. As a first

instalment, a sum was paid out which was guaranteed to all eligible claimants in the same

category; the second instalment was then subject to cuts on a pro rata basis in case the monies

were insufficient to pay to all claimants the full amount.212 Moreover, this system – as well as

that applying with a view to the Austrian Reconciliation Fund and the Swiss Banks Settlement

– establishes some broad categories of victims which then obtain a certain sum as a gesture of

reconciliation. This means that no individual evaluation of the damage incurred in the course

of the events is carried out.

b) Some reflections on legal arguments for a modification of the

contents of individual reparations claims in mass claims situations

It is sometimes argued that in situations of mass violations individuals should not have a right

to compensation as only states could take the overall situation into account.213 Full reparation

for all victims concerned, so it is argued, would not be possible for economic reasons and

would not be desirable either. Indeed, debts which exceed the economic capacity of a state by

far may aggravate the human rights situation in the state itself.214 However, it would be absurd

if the question whether there is an obligation to provide compensation depended on the

question whether the threshold of a mass violation of rights was trespassed.215 A

differentiation must be made between the legal conditions for a claim and the economical

212 Cf. Section 9 paragraph 9 Foundation Law. 213 C. Tomuschat, "Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International Law", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 1, at p. 18-25. 214 M.W. Reisman, "Compensation for Human Rights Violations: The Practice of the Past Decade in the Americas", in: State responsibility and the individual: reparation in instances of grave violations of human rights, A. Randelzhofer/C. Tomuschat (eds.), 1999, p. 63, at p. 67. 215 M. Eichhorst, Rechtsprobleme der United Nations Claims Commission, 2002, p. 99.

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resources which might have an impact on the performance of the claim. Whilst the claim has

to be recognised, its potential amount might be limited due to the lack of resources of the

respondent debtor, the impossibility of the debtor to fulfil all claims, or other special

circumstances.216

Three approaches are legally conceivable with a view to addressing the mass claims situation

appropriately. The first pertains to the treaty making power of the state representing the

victims. The state concerned could have the power to conclude peace treaties transforming the

existing individual rights to compensation for violations of international humanitarian or

human rights law and adapting them to the requirements of the political situation. The second

approach describes to the possibility of a waiver to be submitted by individuals taking part in

a compensation programme established in the aftermath of a conflict. Under the third

approach, the mode of payment might be influenced by the lack of resources or, in extreme

cases, the state owing reparation might rely on the plea of necessity.

Under the first approach, a viable and fair solution could be found in the course of

negotiations on a peace treaty. Such a solution could take into account not only the economic

capacity of the violating state but also questions such as expediency of procedures agreed on,

standards of proof and potential efficiency of payment programmes to be established. Since

by virtue of such treaty, the legal right to property of each claimant would be affected,

eventual infringements of rights have to be open to judicial scrutiny. The question whether the

solution found indeed is fair to the victims would then be open to review by national

constitutional courts and international human rights courts. The peace treaty would end the

existence of individual claims of the nationals of the respective state under international law.

In case that the overall solution should not be fair, the home state could be held responsible

for an infringement of property rights of the individual claimants and be liable to pay

compensation.

These are indeed the considerations made with a view to the constitutionality of the solution

adopted in the Framework of the Foundation “Remembrance, Responsibility and Future”

regarding forced labour and other injustice committed during the Nazi era. Both the review

carried out internally in the course of adopting the necessary legislation as well as the review

by the German Federal Constitutional Court217 resulted in the observation that the Foundation

216 See also Art. 25 of the ILC-Draft on Responsibility. Different view A. Orakhelashvili, "Peremptory Norms and Reparation for International Wrongful Acts", 3 Baltic YIL 2003, p. 19, at p. 53-54.�

217 BVerfG, decision of 28 June 2004, NJW 2004, p. 3257 et seq.

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solution was well-balanced and provided a fair solution also for victims.

Legally entirely convincing is the perception of a payment programme as an offer which can

be accepted by claimants in exchange for a waiver of their individual rights under

international law. This would provide for an incitement to violating states to offer a solution

which will be accepted by victims in turn for legal peace. Unless a waiver is signed, the

individual right would remain untouched.

An argument in favour of limiting the options to the latter approach may be found in the 1949

Geneva Conventions. Pursuant to Art. 51 of Geneva Convention I, Art. 52 Geneva

Convention II, Art. 131 Geneva Convention III and Art. 148 Geneva Convention IV, states

cannot absolve themselves or other states from any liability incurred in respect of grave

breaches of the Conventions. However, it seems that these provisions would also not exclude

a solution indicated above in the framework of a peace treaty. Only if the victims’ rights are

limited in an unfair manner this may be considered as having absolved themselves or other

states from a liability under one of the Conventions. That would also mean that the attempt to

put an end to the existence of the respective individual rights would fail under the provisions

quoted above. As a consequence, these provisions may function as another instrument for

scrutiny whether the solution adopted is fair to the victims.

The first two approaches described are based on a waiver. Such a waiver is dependent on the

will of the waving party. There might be situations, where the party concerned is not willing

to declare a waiver despite of the economical or political fragile situation. Therefore, the

question arises whether a limited financial capacity has nevertheless to be taken into account

considered when calculation the amount of reparation due.

The ILC was dealing with this question when discussion their Draft on State Responsibility.

In the version of the Draft of 1996, the ILC considered a limitation of the obligation to

provide for reparation. Art. 43 Para. 3 stated:

„In no case shall reparation result in depriving the population of a State of its own means of subsistence.”218

The wording imitates Art. 1 Para. 2 of the ICCPR and the International Covenant on

Economic, Social and Cultural Rights219 and was considered to be a legal principle of general

application.220 The limitation of the obligation to pay reparation was criticised within the ILC

218 UN Doc. A/CN.4/SER.A/1996. 219 1570, UN Treaty Series Vol. 992, 3. 220 Report of the ILC on the work of its forty-eight session, UN Doc. A/51/10, p. 66, Commentary 8 (a). See also Brownlie, who comes to the

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and by states. It was argued that the population of the injured state would be similarly

disadvantaged by a failure to make full reparation.221 Further, it was stated that if the amount

of the compensation was extremely high, payment methods could be agreed on which could

avoid harm.222 The states were mainly relying on the argument that a limitation would open

the possibility of abuse.223 Only Germany considered that the proposed Article has its validity

in international law.224

The final Draft on State Responsibility no longer contains a limitation of the obligation to pay

reparation. In case of an internationally wrongful act, full reparation is due according to Art.

34 of the Draft. The limited financial capacity of a state does not influence the existence or

the amount of the reparation due. However, a lack of resources or other special circumstances

can be taken into consideration when fixing the mode of payment. In extreme circumstances,

the state might invoke the plea of necessity pursuant to Art. 25 of the Draft on State

Responsibility.225 Thus, the circumstances precluding the wrongfulness of an internationally

wrongful act are also applicable to secondary obligations.226

This solution balances the interests of the parties in an appropriate way in a case where the

party concerned is not willing to take the lack of resources of the perpetrator state into

account. Further, this approach finds its confirmation in state practice.227

III. Claims against Non-State Actors

(to be inserted at a later stage)

IV. Conclusions

The compensation of victims of violations of international law in an armed conflict is an

important issue. Beside the obvious monetary implications and help for the individual, it

implies the recognition of the harm done to them and the establishment of responsibilities.

conclusion that it might be an established principle under international law to restrain the quantum of reparation (I. Brownlie, International Law and the Use of Force by States, 1963, p. 147).220 He relies on state practice and points out the reference made to the economic capacity of the aggressor and the avoidance of undue hardship to the population in peace treaties. However, the state practice examined relates to compensation made for violations of the rules of ius ad bellum. It is possible for states to limit the reparation due for a violation of the ius ad bellum without any conditions, as they have done it in the past. The rules of the ius ad bellum do not contain an individual right but a state right and the state concerned can dispose of its secondary right to reparation resulting from an infringement of these rules. 221 UN Doc. A/51/10, p. 66 Commentary 8 (b); p. 153 para. 19. 222 Ibd., p. 153 para. 19. 223 USA, UN Doc. A/CN.4/488, p. 107; France, ibd. S. 106; Australia UN Doc. A/C.6/54/SR.23 para. 43; Japan UN.Doc. A/CN.4/492, p. 14. 224 UN Doc. A/CN.4/488 p. 105. 225 UN Doc. A/56/10, p. 197 et seq. 226 J. Crawford, “Third Report”, UN Doc. A/CN.4/507, p. 21 para. 42. 227 See examples of relevant practice are given in the commentary of the ILC to the Draft on State Responsibility, UN Doc. A/56/10, p. 197 et seq.

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Further, a right to compensation strengthens the norms of international humanitarian and

human rights law and their enforcement and might prevent future violations.

Victims of an armed conflict may suffer from violations of the law of armed conflicts. A

violation of both, the ius ad bellum and the ius in bello, triggers the responsibility of a state.

Considering especially the development of international law which resulted in the recognition

of the individual as a subject of international law, it can be argued that an individual has a

right to compensation in case of a violation of a rule of international humanitarian law. Such a

right can be found in Art. 3 of the Hague Convention IV and Art. 91 of Additional Protocol I.

Furthermore, a right to compensation may result as a general secondary right from a violation

of a primary right of the individual according to the principles of state responsibility. The

recognition of such a general right to compensation for individuals can be found in the recent

opinion of the ICJ on the Palestinian Wall. However, states are reluctant to recognise a right

to compensation for victims of violations of international humanitarian law.

There are examples in state practice where victims of an armed conflict obtained

compensation from a state because of its violation of the ius ad bellum. As the rules of the ius

ad bellum only protect the equality of states and their peaceful relations, there is no reason to

accept a secondary right pertaining to the individual in case of an infringement of the ius ad

bellum. For practical reasons, it may be useful to accord individual rights within a specific

reparation regime in order to facilitate the evaluation of damages incurred and the distribution

of means granted by way of reparation; as it was done e.g. within the system of the UNCC.

As international human rights law is applicable in times of an armed conflict, victims of

violations of international human rights may obtain compensation under the human rights

regimes. Thus, even if the position of individual rights to compensation in international

humanitarian law were rejected, individual rights to compensation could still arise in the area

of international human rights law.

Individual rights to compensation may also arise under domestic law, which is applicable in

times of an armed conflict. The situation of an armed conflict and especially the compliance

of a harming act with the rules of international humanitarian law can be invoked as

justification or change the standard of negligence within the national legal order.

As an armed conflict typically leads to a situation of mass violations, limited financial

resources of the debtor can be taken into account. The state concerned by the violations could

have the power to conclude peace treaties transforming the existing individual rights to

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compensation for violations of international humanitarian or human rights law and adapting

them to the requirements of the political situation. Further, individuals could waive their

claims by taking part in a compensation programme established in the aftermath of a conflict.

Finally, the mode of payment might be influenced by the lack of resources or, in extreme

cases, the state owing reparation might rely on the plea of necessity.