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Micaela Frulli; When Are States Liable Towards Individuals for Serious Violations of Humanitarian Law? The Markovic Case, Journal of International Criminal Justice, Vol. 1





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In February 2002, the Italian Supreme Court rejected an application filed by Federal Republic of Yugoslavia (FRY) citizens requesting compensation for the death or injuries suffered by their relatives following the NATO bombing of Radio Televizije Srbiijre (RTS) in 1999. The Supreme Court expanded the application of the ‘political question’ doctrine beyond the limits so far accepted and, certainly, beyond the limits that should be respected in order to ensure compliance with international law. The obligation to pay damages caused to individuals as a result of breaches of humanitarian law could derive from Article 3of the 1907 Hague Convention V and Article 91 of the 1977 First Additional Protocol. However, textual analysis of these two provisions does not dispel their ambiguity. Subsequent state practice shows that these rules have been interpreted as an interstate obligation and not as conferring a right on individuals. The author suggests a new interpretation unintended to reconcile state practice with the right of individuals to seek and obtain compensation. Article 3 and Article 91 could be interpreted as granting individuals a right to compensation in all those cases where the payment of damages is not provided through interstate mechanisms.

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