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M. Schulzke & A.C. Carroll; Corrective Justice for the Civilian Victims of War: Compensation and the Right to Life, Journal of International Relations and Development, Vol. 00 (0)





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In this article, the authors advance that the individual right to life, which lies at the foundation of contemporary just war theory and moral theory more generally, entails a duty for warring parties to repair the harm that they inflict on civilians.

Just war theory and international law recognise that the civilians’ right to life creates a corollary first-order duty for belligerents to avoid inflicting harm on civilians. This first-order duty is embodied in the principle of civilian immunity and the principle of distinction, which forbid belligerents from targeting civilians or recklessly harming them. The authors postulate that the right to life can only function as a right if those who breach that right take on a second-order duty to repair the harm they inflict. Having established this, the authors propose that whenever a belligerent harms a civilian and thus fails to comply with the first-order duty, this subsequently gives rise to a second-order duty to repair the damages that follow from that failure. Building on compensation for (mere group level) damages related principles rooted in jus post bello theories –of which a brief overview is provided- the authors introduce the notion of reparations for harm inflicted on individual civilians, especially harm resulting from breaches of the civilians’ right to life in a just war.

The authors posit that financial compensation for harm constituting a breach of the right to life is the most appropriate response. A breach of the right to life can take the form of injury, death or the loss of property that is essential to survival and payments for reparation can be provided to the victim or –in case of death- the victim’s relatives. States, rather than individual soldiers, should be responsible for paying compensation since soldiers act as representatives of the state, and states are in a stronger position to disperse timely compensatory payments. Only exceptional circumstances may require passing on the responsibility for compensation to other states or to international organisations.

In determining liability standards for breaches of the right to life, the work turns to analogues in tort law establishing strict liability for waging war, an inherently dangerous activity with a foreseeable degree of risk. Arising claims are to be adjudicated by an independent international body to be erected for this purpose.

What remains unclear is whether the temporal scope of the second-order duty extends to actual wartime, as opposed to post war settings, and whether this duty also applies in other cases of violations of the right to life, such as a targeted killing, outside the context of war.

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