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Paul T. Scott; Duty to Make Amends to Victims of Armed Conflict, Tulane Journal of International & Comparative Law, Vol. 22





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Under current international law, civilians who suffer harm as a result of lawful military combat action during armed conflict are not entitled to any compensation or reparation. Notwithstanding the absence of such legal norms, this article purports that warring states nevertheless have a moral obligations to make amends to their victims.

Historically, civilian lives were of little or no value to warring states. This tradition changed in the late nineteenth century with increased attention to humanitarian considerations, as evidenced by the Martens Clause in the Hague Convention of 1899. Half a century later, the Geneva Conventions of 1949 and their Additional Protocols of 1977 showed continueddevotion to preserve humanity and human dignity, mainly by incorporating respect for and protection of the lives and properties of civilians. However, International Humanitarian Law (IHL) still leaves room for civilians to be lawfully harmed as long as the harm –also referred to as ‘collateral damage’- is not excessive in relation to the concrete and direct military advantage anticipated, and the military combat acts are necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In such cases, victims are not entitled to be compensated for their losses[1]  which the author finds at odds with the basis of IHL.

Positively, in recent years the number of states taking responsibility for the harm they caused is growing. These states have been making amends, meaning helping to meet immediate needs and dignifying victims, as a measure of sympathy and apology without recognising any liability or legal obligation to do so. Yemen, Afghanistan and Somalia may serve as examples of States making amends by providing solatia payments and ex gratia assistance. But despite these developments, the author concludes that practice is not yet broad and consistent enough to constitute general practice as a constitutive element of customary international law. Nor does it evidence the existence of opinio juris, i.e. the conviction held by states that they are under a legal obligation to help individuals whom they incidentally harm as a result of lawful combat operations.

In absence of a legal obligation, the author claims that human dignity, a key pillar of IHL and here defined as the intrinsic worth of every human being to be respected and recognized, puts a moral obligation on states to make amends to victims of collateral damage. He reasons that unjustly treated persons often seek acknowledgement and compensation from the injuring party instead of (or in addition to) assistance from a third party. Furthermore, even when the victim is materially restored to the status quo ante bya third party, the victim may still feel his dignity injured.

In conclusion, the article advances that practice indicates that normative arguments for making amends are “well received and gaining momentum.”  A continuation of this trend would not only add to safeguarding the victims’ dignity and satisfy their rights and needs, but also to the moral coherence of IHL.

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