Are Victims of Serious Violations of International Humanitarian Law Entitled to Compensation?

Abstract

Abstract Despite the expansion and development of international human rights law and, in more recent times, of international criminal law, victims of serious violations of rules of international humanitarian law (IHL) are still not considered to be entitled to reparation under international law. The common wisdom is that only the belligerent party as such has this legal entitlement, including for violations of IHL causing damage to specific individuals. This chapter examines to what extent the traditional approach to this issue is tenable today, when serious violations of IHL are at stake. It begins by stressing the ambiguities of the relevant provisions on compensation enshrined in the Hague Convention IV (Hague IV) of 1907 and Additional Protocol I (AP I) to the Geneva Conventions (GC). It then discusses the applicable rules under the general regime on state responsibility, in particular the rules regarding violations of erga omnes obligations. This analysis hopes to help with the identification of which states are entitled to ask for compensation within an inter-state framework or in the case of serious violations of the laws of warfare committed in non-international armed conflicts. Finally, some recent developments which indicate that under international law individuals have the right to obtain compensation from the state responsible for serious violations of IHL are considered.