Reparation for violations of International Humanitarian Law
30-09-2003 Article, International Review of the Red Cross, No. 851, by Emanuela-Chiara Gillard
Timely and adequate reparations can play an important role in enabling victims of violations of international humanitarian law to rebuild their lives. This article reviews national and international laws and mechanisms relating to reparations for such violations, revealing that while a right to reparation is generally accepted, in the absence of specific mechanisms – usually found at the international level – individual victims are unable to enforce their rights and remain without redress.
International humanitarian law ensures the protection and provision of assistance to the victims of armed conflicts. However, once individuals become the victim of violations of international humanitarian law, the protection offered by this body of law effectively ceases. In particular, the law on its face offers victims of serious violations of this law little or no means of obtaining redress.
International humanitarian law sharply contrasts on this point with tendencies in international law. The related but separate body of human rights law clearly articulates a legal right to a remedy for violations of fundamental rights. Most recently, the Rome Statute of the International Criminal Court authorizes the Court to determine any da mage, loss or injury to victims and provide reparations to them. Humanitarian law, however, does not expressly guarantee victims of violations of the law any right to a legal remedy.
This paper examines the legal ways and means currently available under domestic and international law to victims of violations of international humanitarian law to have their primary rights respected. It explores the question of whether victims have the right to a remedy and the extent to which this right can be enforced, if at all. On the basis of a brief survey of national and international practice, it will be argued that while there is little doubt that victims enjoy rights under international humanitarian law, their rights do not appear to be justiciable and as such difficult to transform in a right to a remedy.