Ad Hoc Reparation Mechanisms

Article excerpt

  I. INTRODUCTION--THE IMPORTANCE OF NATIONAL
     LEGAL FRAMEWORKS AND SPECIFIC MECHANISMS FOR
     ENSURING INDIVIDUALS' ACCESS TO REPARATION

 II. THE DEVELOPMENT OF AD HOC REPARATION
     MECHANISMS AS A PARTIAL REMEDY TO HARM AND
     LOSSES RELATED TO A SITUATION OF ARMED CONFLICT

III. THE EXAMPLES OF KOSOVO AND BOSNIA & HERZEGOVINA
     A. Mandates and Powers of the Commissions
     B. Successes and challenges

 IV. CONCLUSION

I. INTRODUCTION--THE IMPORTANCE OF NATIONAL LEGAL FRAMEWORKS AND SPECIFIC MECHANISMS FOR ENSURING INDIVIDUALS' ACCESS TO REPARATION

A State's obligation to make reparations for international law violations is a recognized general principle (1) found in specific provisions of international humanitarian law instruments. (2) However, in the absence of appropriate national legal frameworks and reparation mechanisms, national courts have generally rejected individual claims for redress for violations of international humanitarian law. (3)

The recognition of a State's direct liability vis-a-vis individuals for violations of international humanitarian law in national courts has both substantive and procedural obstacles. (4)

When rejecting cases for substantive reasons, national courts have told claimants that the right to reparation as found in international humanitarian law was not self-executing, and therefore, only the home States of the victims were directly entitled to this right. (5) This rationale was referred to again recently in the judgment of the International Court of Justice (ICJ) Jurisdictional Immunities of the State (Germany v. Italy); (6) the Court noted:

   [A]gainst the background of a century of practice in
   which almost every peace treaty or post-war settlement
   has involved either a decision not to require the
   payment of reparations or the use of lump sum
   settlements and set-offs, it is difficult to see that
   international law contains a rule requiring the payment
   of full compensation to each and every individual as a
   rule accepted by the international community of States
   as a whole as one from which no derogation is
   permitted. (7)

This observation of the Court also recalls another rationale that has been put forward by national courts for rejecting individuals' claims grounded on alleged violations of the laws of armed conflict, namely the existence of peace agreements interpreted as precluding these claims. (8)

When national courts have rejected claims on procedural grounds, they have almost consistently deemed that the rule of State immunity excluded acts committed by the armed forces of a foreign State during wartime from their jurisdiction (ratione materiae). (9) State immunity, "adopted as a general rule of customary international law solidly rooted in the practice of States[,]" (10) obliges States to "refrain from exercising jurisdiction in a proceeding before [their] courts against another State." (11) The scope and source, hence the legal regime, of this procedural rule in the international order, is still at the centre of debates among scholars and jurists. At stake is notably the applicability of (or the possibility for the forum State to waive) State immunity in case of alleged grave violations of international humanitarian and human rights law. (12) For the purpose of these introductive remarks, I will simply observe that the scope of State immunity in current international customary law, based on a tentative lowest common denominator of very heterogeneous national practices, remains broad and uncertain. International doctrine and States' practice made State immunity applicable only to acts of sovereign power (acta jure imperii), by opposition to acts of management carried out by a State acting as a private person (acta jure gestionis), but this distinction itself has proven to be problematic. (13) Moreover, developments in national laws and international instruments have questioned the relevance of this distinction as the main criterion for the application of State immunity. …