For a long time, international law did not provide a right to reparations for victims of armed conflict. But today, such a right is increasingly recognized and endorsed in literature, domestic and international jurisprudence, state practice and through codification efforts by UN bodies. Significantly, the International Committee on Reparation for Victims of Armed Conflict has signalled and translated these developments in the present (soft law) Declaration of International Law Principles on Reparation for Victims of Armed Conflict, adopted on 20 August 2010. The Committee champions the modernisation of the law of armed conflict, particularly regarding the issue of liabilities of parties responsible for violating the law of armed conflict.
The Declaration, whose core Principle is Article 6 on the right to reparation for victims of armed conflict, contains 16 Articles placed in five sections. The commentary on the draft version that preceded it provides valuable insight into the precise meaning of each article and the considerations that lead to its formulation. The following is a summary of that commentary.
Under this Declaration, States, non-state actors and international organizations have an obligation to repair material and immaterial harm they have inflicted on individuals or collectives by violating ‘the law applicable in armed conflicts’. This covers only those primary (substantive) rules of International Humanitarian Law (IHL) applicable in international and non-international armed conflicts and Human Rights Law, aiming at protecting the victim. The Declaration sets out that reparation may take the form of – but is not limited to – restitution, compensation, satisfaction, and assurances and guarantees of non-repetition that may be granted singly or in combination (Articles 7-10).
The Declaration considers the right to reparation a secondary right, i.e. one that presupposes the violation of a primary right. In other words, an unlawful act or omission is a prerequisite. Against this background, the work also addresses the controversial issues of incidental losses that can either be unlawful or lawful. They are considered unlawful when excessive in relation to the anticipated military gain and as such might trigger a right to reparation. Yet, whether a right to reparation is also triggered when damages originate from lawful attacks –e.g. attacks conducted in conformity with applicable international law- is considered an unclear and unsettled issue. In any case, the Committee notes that in these distinct situations, the responsible parties are not likely to be equally liable and encourages ‘pragmatic solutions’.
In an effort to repair the dissociation of rights and enforcement mechanisms under IHL, Article 11 complements victims’ right to reparation as set out in Article 6 by obliging the responsible parties to ‘make every effort to give effect to the rights of victims to reparation’ and further holds them to facilitate access to reparation for victims and indeed for a wider range of persons affected by armed conflicts, acknowledging that a broad range of persons might suffer harm caused by lawful conduct during conflict.
Lastly, it is worth mentioning that Article 16 of the Declaration leaves open the possibility of limiting the temporal scope of the right to reparation, as long as such constraint does not unduly impact the right to reparation. One of the main considerations for this is that evidence might diminish over time thereby negatively affecting the fairness of the procedure.
Following the adoption of this Declaration focusing on the substantive aspects of the right to reparation for victims of armed conflict, the Committee developed the Procedural Principles for Reparation Mechanism, adopted at the 76th Conference of the International Law Association, in 2014 (Resolution 1/2014).