ILA Draft Procedural Principles for Reparation Mechanisms

The Committee on Reparation for Victims of Armed Conflict decided to split its work in two Parts: the substantive aspects of the right to reparation (Part I) and the procedural mechanism needed to enforce that right (Part II).The first Part was successfully concluded with the adoption of the Declaration of International Law Principles on Reparation for Victims of Armed Conflict at the ILAThe Hague Conference (Resolution 2/2010). Now the Committee has decided to table before the Conference a Draft Resolution, substantiating Part II of its work.

Establishing a mechanism ensuring the implementation of the right of the victim to reparation is by no means less important than fixing the substantive rights. Practice to date shows that the traditional mode of filing claims is thwarted by many obstacles such as the doctrine known as ‘the political question’ or ‘Affairs of State’ (which can shield governments from opening up discussions of the consequences of war to legal fora), statutes of limitation, the doctrine of the sovereign immunity of States from foreign jurisdiction, and the limits of the institution of diplomatic protection in espousing claims of individuals and legal persons.

Until now, the greater part of State practice is made up of decisions in connection with violations of jus in bello [the law concerning the conduct of war]. The developing international law regarding armed conflicts has  proved that a right of redress should also be given to the victims of violations of jus ad bellum [the law concerning legitimate motives for instigating war]. However, it has been preferred to devote all efforts to construct a mechanism limited to violations of jus in bello, since the law regarding violations of jus ad bellum is still being settled.

As usual, the Draft Resolution is accompanied by a Draft Report illustrating the inter- national practice and the norms, belonging both to conventional and customary law, on which the Resolution is based. Instead of preparing a set of Articles, the Co-Rapporteur, following the Committee’s recommendations, preferred to prepare a set of Principles. The reason lies in the flexibility of the mechanism proposed, leaving to the free choice of the parties to find out the best way for its implementation in accordance with the legal order (domestic or international) in which the mechanism operates. The parties are, nevertheless, bound by the principle of effectiveness that should prod them to achieve concrete results in accordance with the provisions laid down by the Declaration of International Law Principles on Reparation for Victims of Armed Conflict. The Declaration should be read in conjunction with the Report that spells out the principles embodied in the Declaration.