[Vito Todeschini (LL.M.(Ferrara University); E.MA (EIUC, Venice)) is a PhD Fellow at Aarhus University, Denmark.]
In 2013, the German Federal Constitutional Court and the Regional Court of Bonn issued their judgements in two cases ‒ Varvarin and Kunduz respectively ‒ concerning Germany’s participation in the NATO-led operations in Serbia/Kosovo and Afghanistan. These judgments confirm and exemplify a general trend in domestic case law, which denies that victims of violations of international humanitarian law (IHL) have a right to bring claims directly in the domestic courts of the allegedly responsible State (Gillard, pp. 37‒38). This finding is mainly based on the lack of an obligation on States under IHL to provide individuals with enforceable remedies against violations. Domestic courts, however, tend to overlook the complementary role that human rights law (HRL), the other legal framework governing armed conflicts, may play in this context.
This contribution explores this possibility, arguing that HRL may supplement IHL with regard to the right to a remedy. The analysis assumes the perspective that IHL and HRL are complementary legal frameworks. It further employs the principle of systemic integration, codified in Article 31(3)(c) VCLT, to interpret IHL in light of HRL. An alternative interpretation will be proposed, namely that victims of IHL violations should be allowed to bring claims in the allegedly responsible State’s courts on the basis of the right to a remedy under HRL.
The Right to a Remedy: HRL v. IHL
The right to a remedy is enshrined in several human rights treaties (inter alia, Articles 2(3) ICCPR; 13‒14 CAT; 13 ECHR; 25 ACHR; 7(1)(a) ACHPR), under which States Parties have an obligation to establish domestic remedies capable of finding and redressing human rights violations. The concept of remedy generally presents two dimensions: procedural and substantive. The procedural aspect regards the right to have access to a competent body, which may be judicial or administrative depending on the seriousness of the violation. The substantive dimension concerns the right to reparation, which includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition (Shelton, p. 7). Effectiveness is the distinctive element characterising a remedy. To be effective, a remedy must be accessible, enforceable, and provide redress if a violation is found (HRCtee GC31, paras. 15‒16). A final feature of remedies is their dependency on the previous infringement of another right.
The situation differs radically with regard to IHL. According to Articles 3 HC IV and 91 AP I, a State must provide compensation for the IHL violations it is responsible for. This rule is considered to be customary and applicable in both international and non-international armed conflicts. The drafting history of Article 3 HC IV shows that its objective is to provide victims of violations with the right to bring a claim directly against the responsible State (Kalshoven, pp. 830‒837). Yet, post-WWII domestic case law has generally departed from this original construction and interpreted such provision as conferring on States, not victims, the right to claim compensation (CIHL Study, pp. 544‒545; Zegveld, pp. 507‒512; Henn, pp. 617‒623). Additionally, there is no specific rule in IHL providing how a victim can enforce the right to reparation. It can be concluded that, at best, victims of IHL violations have a substantial right to reparation but not a procedural right to a remedy. In this respect, the question is whether HRL, which also applies in armed conflicts, may provide individuals with a procedural remedy for unlawful harm suffered in war time.
Systemic integration between IHL and HRL
The relationship between IHL and HRL may be considered from two perspectives: competition and complementarity. Generally, whenever two rules belonging to the different regimes are both applicable and in competition, human rights treaties are interpreted taking into account IHL rules (ICJ Nuclear Weapons, para. 25; HRCtee GC31, para. 11). For instance, the human rights to life and personal liberty in armed conflicts may be modified in light of IHL rules on targeting and internment (ICJ Nuclear Weapons, para. 25; ECtHR Hassan, paras. 102‒106). On the other hand, IHL and HRL rules are not always in competition. Despite being designed to pursue very different objectives ‒ conduct of warfare (IHL) and protection of individuals and groups (HRL) ‒ these bodies of law are also complementary and mutually reinforcing. They share certain common purposes, such as ensuring humane treatment of individuals at any time (HRCtee GC31, para. 11; IAComHR Abella, paras. 158‒160; Hampson and Salama, paras. 6‒8).
One aspect of the complementarity between IHL and HRL is that the provisions of one of these bodies of law may fill the gaps present in the other; for instance, as it is argued here, with respect to the right to a remedy. This operation is made possible by the principle of systemic integration codified in Article 31 VCLT, which provides that in the interpretation of an international norm “[t]here shall be taken into account, together with the context: [… ] (c) any relevant rules of international law applicable in the relations between the parties”. Systemic integration is a mandatory part of the interpretive process which demands that a rule of international law be construed taking into account all other international norms, deriving from any source, that are applicable in and relevant to a certain situation (ILC, paras. 413 ff.). The ICJ and human rights treaty bodies have, explicitly or implicitly, resorted to the principle of systemic integration when considering the concurrent application of IHL and HRL (d’Aspremont and Tranchez, pp. 238‒241). Since it allows to interpret one body of law in light of the other, the present analysis employs systemic integration as a legal-theoretical basis to provide remedies under HRL for violations of IHL.
Remedying violations in armed conflicts
In 2006, the German Federal Supreme Court (FSC) held in the Varvarin case that Articles 3 HC IV and 91 AP I do not grant individuals a right to claim reparation for IHL violations directly against a State, and that consequently victims must file any claims via their own government (paras. 10‒14). Although recognising the progressive acknowledgement of the international subjectivity of individuals that has occurred over time, the FSC denied that HRL had modified international law so as to grant individuals a general procedural right to bring claims for IHL violations in a foreign State’s domestic courts (paras. 7‒9, 14‒15). This interpretation has been confirmed in the aforementioned 2013 judgments by the German Federal Constitutional Court in the same case, and the Regional Court of Bonn in the Kunduz case.
It is submitted here that, while considering HRL as a relevant legal framework, the FSC failed to apply the principle of systemic integration in a satisfactory manner. The Court did not refer to the obligations to provided remedies contained in the treaties which Germany is party to, such as the ECHR or the ICCPR. A reasonable application of the principle would have at least required: a) taking into account the provisions on the right to a remedy included in the human rights treaties binding on Germany as well as relative treaty bodies’ jurisprudence; and b) considering whether these provisions have a bearing on the claims regarding IHL violations. Given that under IHL victims are entitled to reparation but have no procedural right to enforce it, it seems sensible for a domestic court to take into account the relevant provisions of HRL which oblige States to provide effective remedies against violations.
In this writer’s opinion, by resorting to the principle of systemic integration the FSC could have argued that the lack of an enforceable right to a remedy under IHL may be read in light of the obligation of States to provide an effective remedy under HRL. Accordingly, the Court could have filled such a gap by deciding that a victim of an IHL violation is entitled to bring a claim against the allegedly responsible State under the same procedures provided for to victims of human rights violations. In this perspective, whereas the breach of the norm would regard a substantive rule of IHL ‒ e.g., the prohibition to kill civilians ‒ the remedy, and therefore the enforcement of the right to reparation, would be exercised as provided for in HRL ‒ e.g., Article 2(3) ICCPR.
The principle of systemic integration is a mandatory part of the interpretive process. Its application to the relationship between IHL and HRL has marked the jurisprudence of several international bodies. This principle requires interpreting one body of law taking account of the other; hence, IHL may be read in light of HRL. Far from being a stretch of existing norms ‒ the reasoning draws on lex lata and not lex ferenda ‒ systemic integration may contribute to fill a major gap in IHL and give substance to the idea that IHL and HRL are, in certain respect, complementary. Besides, and most importantly, victims of IHL violations may be provided with a procedural remedy to enforce directly in domestic courts their right to reparation.