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
II.
Claims against States
1.
Law of Armed Conflict

a)
Reparation for Violations of International Humanitarian Law
2.
Traditional Approach: No Individual Rights under International Humanitarian Law
(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
(b)
Individual Rights as Secondary Rights in Peace Treaties and Security Council Resolutions 14
(c)
Individual Rights as Secondary Rights in International Jurisprudence

Discussion of the various approaches
12
17
19
(a)
The wording of norms of international humanitarian law
(b)
The interpretation of norms of international humanitarian law in context and in the light of its
19
object and purpose
20
(c)
No individual right without an individual remedy?
24
(d)
Secondary right
25
Reparation for Violations of the Ius ad Bellum

International Human Rights Law
28
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)
36
3.
(1)
(4)
b)
Applicability of the Norms providing for Compensation in Times of an Armed Conflict

National Law
36
a)
Claims based on Violations of International Law
37
b)
State Liability, Tort Law
38
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).
2
4.
Special Situation of Mass Violations
42
a)
Practice of States and International Bodies
b)
Some reflections on legal arguments for a modification of the contents of individual reparations
claims in mass claims situations
43
45
III.
Claims against Non-State Actors
48
IV.
Conclusions
48
IndividualRight-Bank-Schwager
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 victims 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
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 rparations de guerre en droit international public,
2002; W. Heintschel von Heinegg, "Entschdigung fr Verletzungen des humanitren Vlkerrechts", in: Entschdigung nach bewaffneten
Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (ed.) 2003, p. 1; B. He, "Kriegsentschdigung aus
kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschdigung nach bewaffneten Konflikten. Die Konstitutionalisierung der
Weltordnung, D.G.f. Vlkerrecht (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).
4
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 Germanys
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
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 IRRC (2003), p. 529 at p. 530; W. Heintschel von
Heinegg, Entschdigung fr Verletzungen des humanitren Vlkerrechts, in Deutsche Gesellschaft fr Vlkerrecht (ed.), Entschdigung
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
Bundesentschdigungsgesetz 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).
5
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
In particular, Art. 13 ECHR.

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).
9
6
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.
7
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 KellogBriand 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. Mnch, "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.
8
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..

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 Japans court rulings see M. Igarashi, "PostWar Compensation Cases, Japanese Courts and International Law", 43 Japanese Annual of International Law 2000, p. 45-82.
Nongovernmental organisations have organised a Womens International War Crimes Tribunal on Japans Military Sexual Slavery and
held proceedings in Tokyo in 2000. They found Emperor Hirohito guilty and ruled that Japans 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.
19
9
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.
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. Sassli /A.A. Bouvier, How Does Law Protect in War? 1999, p. 713.
28
BGH, Distomo, NJW 2003, p. 3488 at p. 3491.
22
10
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--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
(Bundesentschdigungsgesetz) 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 Germanys 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.

LG Bonn, decision of 10 December 2003, NJW 2004, p. 525 at p. 526.
31
OLG Kln, 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
30
11
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--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 Militrinternierten im deutschen Machtbereich 1943-1945, Mnchen 1990, p. 97 et seq.
38
BVerfG, NJW 2004, p. 3257, at p. 3258.
39
Ibid.
12
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 prparatoires 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--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 rparations de guerre en droit international public, 2002, p. ; W. Heintschel von Heinegg,
"Entschdigung fr Verletzungen des humanitren Vlkerrechts", in: Entschdigung nach bewaffneten Konflikten. Die
Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (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).
13
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 Mnster, 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 Botien as representative of Konstantinos Avoritis et al., Aeropag,
decision of 20 January 2000.
14
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.
15
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 Eritreas Claims 15, 16, 23 & 2732,
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.

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, Eritreas Claims 15, 16, 23 & 2732, 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.
58
16
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 IsraeliPalestinian 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.

S/RES/471, 5 June 1980, para. 2 and 3.
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 Kriegsschden in der vlkerrechtlichen
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.
62
63
17
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 walls construction.66
Most remarkably, this part of the ICJs 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 Chorzw 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.
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.
66
18
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 Tribunals 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 Chorzw, Merits, PCIJ Series A, No. 17, at p. 47; Art. 31 ILC-Draft on Responsibility.
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, Einfhrung in das Vlkerrecht, 2004, p.
167.
71
ICTY, Furundzija, 10 December 1998, IT-95-17/ I-T, at para. 155.
69
19
(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
20
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.
21
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 states 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 prparatoires 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 Gndell
73
See also K. Ipsen, Vlkerrecht, 5th ed. 2004, 65, Note 2 et seq.
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, Vlkerrecht, 5th ed. 2004, 67 Note 4.
75
L. Oppenheimer, International Law, Vol. I, 1905, 200.
76 W. Heintschel von Heinegg, "Entschdigung fr Verletzungen des humanitren Vlkerrechts", in: Entschdigung nach bewaffneten
Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (ed.) 2003, p. 1, at p. 29 footnote 29.
74
22
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 belligrante qui violera les dispositions de ce Rglement, au prjudice de
personnes neutres, sera tenue de ddommager ces personnes du tort qui leur a t caus.
77
The reasoning for the provision given by von Gndell is as follows:
Le cas, le plus frquent se produire, sera celui o aucune ngligence nest la charge
du Gouvernement, lui-mme. Si, dans ce cas, les personnes lses par suite dune
contravention au Rglement, ne pouvaient demander rparation au Gouvernement, et
quelles fussent obliges se retourner contre lofficier ou le soldat coupable, elles
seraient, dans la majorit des cas, destitues de la facult de obtenir lindemnisation 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:
Larticle 1er accorde aux personnes neutres un droit contre la partie belligrante de
rclamer le ddommagement du tort qui leur a t caus..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 Deuxime Confrence internationale de la Paix: acts 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 Deuxime Confrence internationale de la Paix: acts et documents, III, 1908, p. 147.
80 Ibid., Vol. I, p. 103.
81 Ibid., p. 104.
82 Ibid., p. 103.
83 Ibid., p. 104.
23
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.

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).
85
24
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 rparations 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, "Entschdigung fr Verletzungen des humanitren Vlkerrechts", in: Entschdigung nach bewaffneten
Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (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 rparations de guerre en droit international public, 2002, p. 517; E. David, Principes de droit des conflict arms,
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,
Rclamation britanniques au Maroc espagnol, Rapport du 1er mai 1925, RSA 11, 645 ; cited after E. David, Principes de droit des conflict
arms, 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.
25
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 Chorzw
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 Chorzw 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. He, "Kriegsentschdigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschdigung nach bewaffneten Konflikten.
Die Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (ed.) 2003, p. 107, at p. 174.
95 E. Roucounas, "Facteurs priv 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 Chorzw, Merits, Judgment, No. 13, 1928, PCIJ Series A, No. 17, p. 47.
26
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 states
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--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 Chorzw, 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.
27
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--vis nationals of the
state party as well as vis--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. Knzli, Zwischen Rigiditt und Flexibilitt: Der Verpflichtungsgrad internationaler Menschenrechte, 2001, p. 49-63; J. Kokott/K.
Doehring /T. Buergentahl, Grundzge des Vlkerrechts, 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 vlkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer Bercksichtigung
Deutschlands (1918-1990), 1992, p. 34; M. Sassli, "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.
28
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--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
Vlkerrechts; 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 rparations de guerre en droit international public, 2002, p. 449-461; W. Heintschel von Heinegg, "Entschdigung fr
Verletzungen des humanitren Vlkerrechts", in: Entschdigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung,
D.G.f. Vlkerrecht (ed.) 2003, p. 1, at p. 23; S. Kadelbach, "Staatenverantwortlichkeit fr Angriffskriege und Verbrechen gegen die
Menschlichkeit", in: Entschdigung nach bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (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 rparations de guerre en droit international
public, 2002, p. 50, 77; B. He, "Kriegsentschdigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschdigung nach
bewaffneten Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (ed.) 2003, p. 107, at p. 132.
113
B.W. Eichhorn, Reparation als vlkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer Bercksichtigung
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.
29
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 vlkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter
besonderer Bercksichtigung Deutschlands (1918-1990), 1992, p. 76; P. d'
Argent, Les rparations de guerre en droit international public,
2002, p. 47 et seq.
116 H.U. Granow, "Auslndische Kriegsschden und Reparationen", 77 AR 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 DeutschAmerikanischen 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 Kriegsschden in der vlkerrechtlichen Praxis. Ein Beitrag zur Staatenverantwortlichkeit im Kriege, 1971, p. 389; P.
d'
Argent, Les rparations 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 vlkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer
Bercksichtigung Deutschlands (1918-1990), 1992, p. 44-45.
123 See with details P. d'
Argent, Les rparations de guerre en droit international public, 2002, p. 313-318.
30
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 Iraqs
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 Iraqs 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 Commissions 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 nonimplementation 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 rparations 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 rparations de guerre au Vietnam et le droit international", 81 RGDIP (1977), at p. 10861090. 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. Whler, "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. He, "Kriegsentschdigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschdigung nach bewaffneten Konflikten.
31
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 Iraqs 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 Iraqs invasion, it seems, was attributed to the individual by the resolution of the
UN Security Council concerning Iraqs liability and does not result from a principle
established under international law.
Die Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (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.
32
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. Knzli,
Zwischen Rigiditt und Flexibilitt: 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.
33
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--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.
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 Jos, 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. Ossenbhl, Staatshaftungsrecht, 1998, p. 530.
140
34
to be made for every violation of a right under international law which results in a loss.145 It
usually mentions the Factory at Chorzw 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 ICJs
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, Velsques Rodrgues 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.
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, Europische 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.
146
35
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. Grnfeld/I. Westendorp/J. Willems (eds.), 2000, p. 203, at p. 206,
207 with further references.
154
ACHR, Velsques Rodrgues 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.
36
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
investigation157
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.
37
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, Schadenersatzansprche wegen Menschenrechtsverletzungen im Internationalen Privat- und
Prozessrecht, in: Festschrift fr 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.
38
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, Europische 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.
39
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 war179 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.
40
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 its 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.

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 Brgerliches Gesetzbuch (German Civil Code) in conjunction with Art. 131 Weimarer Reichsverfassung (Constitution of
Weimar); now 839 Brgerliches 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.
185
41
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 Kln, 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 Entschdigungsrechts", in: Die
Wiedergutmachung nationalsozialistischen Unrechts durch die Bundesrepublik Deutschlands, W. Bruns/H. Giessler/H. Klee/W. Maier/K.
Weiss (eds.), Band IV, Das Bundesentschdigungsgesetz, Erster Teil, 1981, p. 1, at p. 2; J.A. Kmmerer, "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, "Auslndische Kriegsschden und Reparationen", 77 AR (1951/52), p. 67, at p. 71; F. de la Croix,
"Schadenersatzansprche auslndischer Zwangsarbeiter",NJW 1960, p. 2268, at p. 2269.
195 B.W. Eichhorn, Reparation als vlkerrechtliche Deliktshaftung: rechtliche und praktische Probleme unter besonderer Bercksichtigung
Deutschlands (1918-1990), 1992, p. 78-81.
42
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. He 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, "Individualansprche fr vlkerrechtliche 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. He, Kriegsentschdigungen 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. He, "Kriegsentschdigung aus kollisionsrechtlicher und rechtsvergleichender Sicht", in: Entschdigung nach bewaffneten
Konflikten. Die Konstitutionalisierung der Weltordnung, D.G.f. Vlkerrecht (ed.) 2003, p. 107, at p. 116.
202 Ibid.
203
PCIJ, Factory at Chorzw, Merits, PCIJ, Series A, No. 17, at p. 47; Art. 31 ILC-Draft on Responsibility.
43
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 Iraqs 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, Iraqs 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.
44
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).
N. Whler, "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 arms, 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.
207
45
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 victims 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.
46
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
217
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.
BVerfG, decision of 28 June 2004, NJW 2004, p. 3257 et seq.
47
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
219
220
UN Doc. A/CN.4/SER.A/1996.
1570, UN Treaty Series Vol. 992, 3.
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
48
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.
49
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
50
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.

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An Individual Right to Compensation for Victims of Armed

There will be no justice without justice for the victims.1 I.

Claims against States

Law of Armed Conflict

Reparation for Violations of International Humanitarian Law

Traditional Approach: No Individual Rights under International Humanitarian Law

Mixed Approach: Differentiation between Primary and Secondary Rights

Individualised Approach: Individual Rights to Compensation

Art. 3 of the Hague Convention IV

Individual Rights as Secondary Rights in International Jurisprudence

The wording of norms of international humanitarian law

object and purpose

No individual right without an individual remedy?

Reparation for Violations of the Ius ad Bellum

Applicability of Human Rights Law in Situations of Armed Conflict

Norms Explicitly Granting an Individual Right to Compensation

Applicability of the Norms providing for Compensation in Times of an Armed Conflict

Claims based on Violations of International Law

State Liability, Tort Law

Special Situation of Mass Violations

Practice of States and International Bodies

claims in mass claims situations

Claims against Non-State Actors

In particular, Art. 13 ECHR.

II. Claims against States

R. Provost, International Human Rights and Humanitarian Law, 2002, p. 27 et seq..

LG Bonn, decision of 10 December 2003, NJW 2004, p. 525 at p. 526.

Agreement of 12 December 2000, 40 ILM (2001), p. 260.

Decision No. 11 of the Governing Council, UN Doc. S/AC.26/1992/11.

77 Deuxime Confrence internationale de la Paix: acts et documents, III, 1908, p. 144.

H. Lauterpacht, International Law and Human Rights, 1950, p. 61.

Convention IV in national proceedings on tort or state liability.

176 Art. 8 ACHR, Art. 2 Para.3 ICCPR, Art. 13 ECHR.

Court of Appeal, Mulcahy v Ministry of Defence, 21 February 1996, [1996] QB 732.

OLG Kln, decision of 28 July 2005, 7 U 8/04.

conflicts frequently result in situations of mass violations. Full compensation to every

196 M. Domke, "Individualansprche fr vlkerrechtliche Deliktshaftung?" 58 SJZ (1962), p. 2, at p. 4.

204 UN Treaty Series Vol. 136, No. 1832.

Cf. Section 9 paragraph 9 Foundation Law.

III. Claims against Non-State Actors

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