Scott Paul on Compensating the Victims of Armed Conflict

The following is a guest post by Scott Paul, the Making Amends Campaign Fellow with the Campaign for Innocent Victims in Conflict.  I’m delighted to welcome Scott to OJ; in his previous life, he was was one of my favorite bloggers — a regular contributor to The Washington Note and Bolton Watch.

Mohammad was approaching a checkpoint with his brother in Kunduz in 2008 some hours after an IED explosion. Afghan and U.S. soldiers checked the two brothers and found nothing suspicious. Then something went wrong and suddenly, the Americans were firing into the car. Both men were seriously injured. Mohammed’s brother was shot in the back of the head. When they went to the PRT for help after recovering at the hospital, they were turned away and told, “This is war.” No other explanation followed.

This is war. To lawyers, it means IHL, as the lex specialis for armed conflict, may displace human rights law depending on the nature of the conflict. For Mohammad and his brother, it meant facing recovery, steep medical bills and the loss of their livelihoods without so much as an apology from the Americans, let alone help for getting back on their feet.

States have a general obligation to make reparation for their internationally wrongful acts as per the Draft Articles of State Responsibility; in armed conflict, Additional Protocol 1 to the Geneva Conventions sets out an obligation to compensate for violations of the Conventions. The traditional understanding of these rules is that they detail obligations between states and compel no direct relief for an individual victim of the violations. However, many parties to conflict pass along compensation to the individuals that have suffered harm and the trend in international law is to favor compensation of individual victims based on their needs and inherent dignity. The Rome Statute of the ICC now provides for direct compensation out of the Victims’ Trust Fund, albeit not by a responsible state. In Nemariam v. Ethiopia, the U.S. Circuit Court for D.C. went as far as to conclude, in the context of a forum non conveniens motion, that the Ethiopia-Eritrea Claims Commission was an inadequate alternative forum to U.S. courts because it only offered victims indirect remedies; while not an authoritative statement on international law, Nemariam represents the rapid shift from sovereign prerogatives toward victim’s rights currently that is taking place.

Whether the individual or her state benefits, that a party to armed conflict has an obligation to make compensation for violations of international law is widely agreed. Granted, reparations for violations in armed conflict are made infrequently and often take place years after the violation, but the obligation nonetheless performs the important functions of reifying norms and identifying victims who have been materially and morally injured.

The other side of the coin is equally clear and far more frustrating: harming a non-combatant collaterally or accidentally, as a result of a lawful behavior, gives rise to no duty at all. On the contrary, in the Euro-American tradition that gave rise to IHL, armed forces almost always ignored the civilians harmed by their lawful combat acts.

The discrepancy between IHL’s provision for victims of violations and its indifference to the consequences of lawful behavior makes historical sense, but runs counter to contemporary notions of justice and fair play. To paraphrase Michael Reisman, who made this argument in his 1997 article The Lessons of Qana, there is no justification for allowing militaries to externalize massive costs onto an innocent civilian population. That some civilians are entitled to help and recognition for their suffering while others may simply be ignored is a black mark on a legal regime founded in part on ideals of human dignity.

IHL has never been held out to be a silver bullet, if you’ll pardon the poor analogy. It was never believed to be capable of fully shielding civilians from the consequences of war. So long as that remains true, warring parties simply shouldn’t be able to turn their backs on the suffering they create. A legal system truly protective of civilians, in full view of IHL’s limitations, would demand that victims receive appropriate help based on their respective needs and cultural contexts. It would also demand that parties to armed conflict dignify the suffering of any civilian they harm with apologies or other gestures of condolence. Importantly, while humanitarian assistance from third-parties is welcome, only a direct acknowledgement of the victim’s suffering by the party responsible can repair her dignity. The Making Amends Campaign, a coalition effort led by a Steering Committee of the Campaign for Innocent Victims in Conflict (CIVIC), International Crisis Group and Human Rights Watch aims to create a new global expectation that all parties to conflict should offer help and recognition to the civilians they harm during armed conflict, irrespective of the legality of their conduct. These “amends,” as we call them, may take many forms, including compensation, livelihood assistance, medical assistance, community investments or apologies and should reflect community standards and expectations. Most importantly, we believe parties make amends as a dignifying gesture in respect of the humanity of civilians, never as evidence of a license to harm or to preclude responsibility under applicable law.

In recent years, due equally to NGO advocacy, new thinking in military strategy and the demands of soldiers themselves, the tide has begun to turn. Mohammad and his brother, first dismissed by U.S. forces, later received compensation and an apology from the commander in charge at the checkpoint.

Most troop contributing countries in ISAF now have compensation policies covering all combat-related civilian harm and NATO this month adopted uniform compensation guidelines to enhance cohesion among states and reduce confusion among civilians. And while Afghanistan is surely the preeminent laboratory for amends, the experiment rages on worldwide. A Ugandan commander in Somalia compensates traders for accidentally killing their camels. Yemen offers help for an airstrike that mistakenly kills 42 civilians. Other examples – isolated though they may be – trickle in from South Ossetia, Colombia, Pakistan and the Occupied Palestinian Territories. Widespread it is not, but making amends is, as Philip Alston recently wrote in his Annual Report, “an expanding practice which is not yet being systematically tracked or instituted by the international community.”

The duty to make amends is no legal norm; indeed, our goal as advocates is to see making amends emerge as a widely acclaimed moral imperative. Based on a year’s worth of meetings with scores of United Nations officials and government delegates to the UN, I’d say we’re not far off. For the sake of Mohammad, his brother and the multitudes of victims left behind by well-meaning, law-abiding armed forces, we can only hope so. True, this is war. But it need not be totally unforgiving.