State-Based Compensation for Victims of Armed Conflict: Recent Developments in Practice

Abstract

Despite significant advances in human rights considerations in modern warfare, the vast number of civilians harmed during armed conflict never receive any compensation. Due to recent developments across a range of fora, there is now ample evidence that victims of violations of international law are the bearers of a right to redress, notwithstanding the difficulties they have faced and continue to face in enforcing that right. With that substantive-procedural distinction at its core, the aim of this research is to investigate to what extent recent instances of compensation have advanced wider opportunities for redress in conflict, and to identify where the international community of States needs to act to better secure victims’ rights in practice. In the context of recent international humanitarian law (IHL) and criminal law tribunals, there have been many occasions where political circumstances have sidelined victims’ rights. The thesis examines the practice of States and the jurisprudence of several human rights bodies in remedying IHL breaches given the substantial overlap between IHL and the international human rights law (IHRL) applicable during conflict. The thesis discusses the recent truncation of previously favourable examples of universal civil jurisdiction, and the difficulties victims still face with foreign State immunity. It argues that action is needed by States at both the international and national levels to provide a remedy for foreign plaintiffs suffering violations of jus cogens norms during war, but this will necessitate a re-interpretation of long-settled international practice regarding comity and complementarity, and new political understandings and procedures for recognising and enforcing foreign judgements. One of the circumstances where the legal right of individuals to State-based compensation has been most recognised is in the context of transitional justice. Again however, the focus on criminal prosecutions post-conflict, together with straightened economic circumstances and difficult politics, have often been to the detriment of this right. On the positive side, there have been greater moves in recent times to compensate civilians ex gratia for lawful and legally ambiguous losses. The thesis argues that the raised expectations of the international community and some basic commonalities in practice have begun to form custom in this area. It offers arguments for further progressive development so that these payments may be normalised, bedded down in practice and extended in their scope and reach.