Compensation for IHL Violations: A Civil Duty?

[Steven van de Put is a legal advisor at the Royal Netherlands Air Force]

This post is written in the author’s personal capacity.

Historically, accountability for violations of international humanitarian law (IHL), has mainly been a matter of individual criminal processes. Such a notion was already visible in the statements made during the Nuremberg trials, where it was held that

crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

This viewpoint also seems to have translated to contemporary practice, judging by the current media attention towards the actions of the ICC in the conflict in Ukraine and the Israel-Gaza conflict.

Yet, this criminal accountability is only a partial avenue of the legal accountability available. As an alternative to this individual criminal accountability, we have also seen a parallel process, in which victims attempt to hold parties accountable under civil law. Most notably, we have recently seen a successful case in the Netherlands where victims gained compensation for the actions during the battle of Chora.

Compensation on such a civil law basis, could solve many of the accountability problems that we currently see in international law. If states would allow for proceedings based on civil law in domestic courts, it could address issues of state immunity, the non-direct application of obligations of IHL to new actors such as companies, provide an avenue for compensation for more than just state parties, and provide for a recognition of individual claims by victims, which is generally not the case with direct claims based on IHL. In short, it could lead to a potential fruitful avenue for meaningful individual compensation for many of the damages resulting from IHL violations.

This contribution then aims to explore if states, under the current IHL framework, would be under an obligation to implement such domestic legalisation to facilitate civil law accountability. Whereas such an obligation for criminal law has already been incorporated in IHL under Article 49 of the First Geneva Convention, an explicit obligation to implement effective civil legislation remains lacking.

Taking this as a starting point, this contribution will look at two potential options when seeing if states are under such an obligation. Firstly, it will start with the general obligation to offer reparations under IHL found in Article 3 in Hague Convention IV and Article 91 of Additional Protocol I (AP I). Here it will be considered if this obligation also entails a requirement to implement this effective domestic legalisation. Alternatively, it will be explored if such an obligation can be read into the obligation of states to ‘not encourage’ violations under Common Article 1. In both cases, it will be concluded that whereas legal arguments could be made that these also offer an obligation to install effective means of civil recourse, state practice supporting such an interpretation has been scarce. 

Article 3 Hague Convention IV and Article 91 of Additional Protocol I

Both Article 3 and Article 91 seem to contain a very similar wording. The original text is seemingly found in Article 3, which states that

A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation.

This text was pretty much copied in Article 91, and also has been widely recognized to reflect a current customary obligation of states. 

In these Articles, expression has been given to the obligation under international law to argue for full and effective reparations, as already expressed in the famous Chorzow Factory case. While this obligation has been widely accepted, consensus regarding the actual practice and content of these obligations remains ongoing.

Some have argued that this undoubtedly represents an individual right.  Kalshoven has noted that this undoubtedly represents an individual right. Gaeta has offered a more nuanced viewpoint, that this represents a recognition of a customary obligation drafted at a time when only interstate reparations where possible (although, leaving open the possibility that the customary obligations have changed since then). Zwanenburg has, however, mostly argued against these viewpoints, demonstrating that practice mostly seems to point towards this only being a right held by states.

That viewpoint is also reflected in most cases, with cases in the United States, Israel, and Germany highlighting how this right cannot be interpreted to be held by individuals. An exception is the earlier mentioned case law for the Netherlands, where the civil law system allows for individual claims. Likewise, Greece has offered some recognition of the claims individuals held towards states, but both the Netherlands and Greece seem to be exceptions in these scenarios.

The ongoing debate regarding the individual or intrastate nature of these obligations makes it difficult to argue for a concrete interpretation towards such articles also posing an obligation of states to implement effective civil legislation leading to the possibility of compensation. If supporting the viewpoint that Article 91 indeed references to an obligation of individual compensation, it could be argued that such an obligation could then also be read into Article 80(1) of AP I, the obligation to take all necessary measures for the execution of obligations under the Conventions and the Protocol. 

Yet, the leading interpretation has so far been that this is mainly an intrastate responsibility. Taking this interpretation, it becomes difficult to argue that under this obligation, States are under an obligation to ensure that there is a civil recourse in the case of IHL violations. However, as a potential other avenue, this contribution will also look at the possibility of establishing such a responsibility under Common Article 1.

Common Article 1

Common article 1 states that ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’ Whereas this seems straightforward, the actual content of this obligation has remained quite elusive. Famously, there has been an ongoing debate as to if this article has an ‘external’ dimension, which would entail that states would also be responsible for the actions of states to which they provide, amongst other things, weapons that could be used for IHL violations (see, for example, here, here, and here).

More interesting for the current question is, however, how the internal dimension has been interpreted. In short, can the obligation to ensure respect also be read as an obligation to install effective legislation to ensure accountability in the case of violations. A diverse range of viewpoints regarding this interpretation has arisen. Arguments have been made that it simply represents a restatement of the Pacta sunt Servanda principle, although arguments have also been made that the Article should be interpreted to be read in a more meaningful fashion.

Relying on the ut res magis valeat quam pereat principle, arguments have been advanced that the Article should be interpreted in a manner to give it an actual meaningful effect. Such an interpretation would lend, at least theoretically, support to the notion that states bound by such an article would also be under an obligation to install effective civil legislation to enable claims in the case of IHL violations. 

An interpretation in this manner would be based on the notion that, this effective civil legislation, would give a meaningful interpretation of the obligation of states to prevent these violations and undertake actions in their control to limit their fashion. Reference can be made to an analogy to the external dimension, in which states would be obliged to take actions in their control to prevent violations, but also to the ultimate goal of civil legislation, in discouraging ‘undesirable’ actions, a notion already visible in the famous statement of judges functioning as equalisers by Aristotle.

However, when we consider the actual practice of the internal dimension, we can see that, so far, Common Article 1 has not played a meaningful role in any cases focusing on compensation through civil law means. In some of the successful compensation claims in the Netherlands (such as the Chora, Mothers of Srebrenica cases) the Article was not mentioned. Likewise, in cases where compensation was denied, Common Article 1 was not raised as an argument as to why States would be under an obligation to implement such legislation. 

Likewise, other practices of States seem to also paint a bleak picture. It has by now been visible that States have adopted measures to prevent accessibility to the courts on a civil law basis. There are little to no examples of states actually increasing the accessibility of civil claims for violations of IHL.

This lack of supporting practice paints a bleak picture for an interpretation under Common Article 1 which would support that States are under an actual obligation to consider implementing such legislation. At the moment this mainly would be a theoretical construct, discrediting that there is a widespread support for this interpretation. Such a lack of state practice makes it difficult to argue that a more comprehensive interpretation is widely supported.

Are States Under an Obligation to Implement Civil Legislation

Although it can definitely be said that effective legislation can offer a meaningful way for individuals to access compensation, it does not seem to be the case that current interpretations of IHL also support the notion that states are under an active obligation to implement such legislation. Whereas broad, interpretative arguments can be made that mainly Common Article 1 would support such an interpretation, subsequent state practice does not seem to support this viewpoint.

Ultimately, the lack of such legislation will however make it hard for individuals to claim meaningful compensation for violations of IHL. International law seems ill-suited to, in this context, actually offer a meaningful way to address some of the harm what we see arising in this context. In a sense, this is compounded by the obligation to implement this legislation currently remaining a more theoretical construct.

The current emphasis many states are putting on civilian harm mitigation, combined with the rise of concepts such as ex gratia payments, can however also lead to states being more willing to explore options related to implementing effective civil legislation to facilitate accountability. To facilitate such a development, this article offered some potential indications of interpretations that could support this as an obligation contained in IHL, as without effective implementation, reparations are mostly doomed to remain a ‘pie in the sky’ .