There are increasing attempts by or on behalf of victims of war to found legal rights to reparations in the rules of International Humanitarian Law (IHL). They claim that an individual right to reparation for injuries resulting from a violation of IHL is emerging, evidenced by recently developed legal instruments and (yet limited) state practice. Whereas the momentum for this so called Rights Based Approach (RBA) seems to have arrived, this article provides critical comments.

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Limitations & and challenges of RBA

Individuals have no right to reparation under IHL

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Traditionally, IHL regulates the conduct of war-waging states without paying significant attention to the needs of victims of war.  When a warring state violates the rules of IHL, it is liable to pay compensation under Article 91 of Protocol I. Although this provision refrains from identifying which parties are eligible for compensation (states and/or civilians), the writer purports that states are the intended beneficiaries. Individuals seeking redress for harm inflicted on them during war, depend on domestic law or diplomatic protection from their home state.

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IHL: balancing military necessity against humanity

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IHL tries to strike a pragmatic balance between military necessity and humanity. Military necessity entails that a military attack is justified when it is necessary to defeat the enemy while at the same time prohibiting the infliction of unnecessary harm. As a result, non-excessive harm it is considered lawful (collateral) damage, giving no rise to a right to reparation to victims.

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Humanity is here linked to the notion of ‘humanitarism’ which finds its roots in charity and justice. The author explains that ‘justice’ involves both legal justice and equitable justice. The former means that each person gets what he is entitled to according to his rights, rather than to his needs. Equitable justice is a higher form of justice, concerned with ‘bringing to each what he (or she) is lacking’. Charity, in turn, is about caring for suffering or needs, without taking into account a person’s mistakes. Consequently, humanitarism can be defined as a combination of charity and equitable justice. Whereas a rights-based approach to reparations for violations of IHL coincides with the concept of legal justice rather than equitable justice, its limitation becomes clear: it rules out victims of lawful attacks from being entitled to reparation, yet their suffering and needs do not deviate from those of victims of unlawful attacks.

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RBA sits uneasily with Transitional Justice

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While IHL is not primarily concerned with establishing lasting peace in societies emerging from war and mass violence, transitional justice (TJ) is. Feeding the right to reparation for victims of violations of IHL into the context of Transitional Justice, the author sets forth that the reparative measures must be context-sensitive, depending on, for instance, whether the offences are widespread or isolated and whether there is a need for overarching economic and social reconstruction. Whenever reparations are used as a means of contributing to the reconstitution of a peaceful society, they should be balanced with the needs of a society in transition, an exercise raising complex questions of justice and one that may hinder reconciliation and TJ efforts.

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Alternatives to RBA

In trying to resolve the disparity between needs and rights, the author examines the practice of the International Criminal Court (ICC) and its Trust Fund for Victims (TFV) for these institutions combinerights- and needs-based responses to mass violence.

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Whereas the ICC reparations regime awards reparations primarily on the basis of legal justice – i.e. only those whose rights have been violated by the convicted person are eligible for reparations – the approach and dual mandate of the TFV enable a higher degree of responsiveness to the needs of victims: their activities can be focused on repairing harm, facilitating reconciliation and avoiding damage that may be caused through individual reparations.

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An alternative with the potential to be more responsive to the needs of a greater number of victims of armed conflict would be to compensate all victims of war for their losses, regardless of whether their harm stems from lawful or unlawful military attacks, simply – ‘making amends’. Amends do not depend on, nor are seen as representing evidence of, legal liability for a violation of the applicable law and could encompass an apology, financial compensation (practice of ex gratia or solatia payments offered to civilian victims exists) or other dignifying gestures.

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In sum: a rights-based approach is not a panacea for all victims of war, for it only responds to victim of war that have suffered harm as a result of a violation of IHL, while overlooking the suffering and needs of victims of lawful acts of warfare. This puts legal right at odds with human need, a consequence that may hinder a transition to reconciliation and peace following armed conflict.