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International Law Association

Committee on Compensation for Victims of War

Compensation for victims of war


- Background Report -

prepared by
Rainer Hofmann and Frank Riemann
17 March 2004

CONTENTS
I. Introduction............................................................................................................................. 3
1. Terminology ....................................................................................................................... 3
2. Function............................................................................................................................. 6
3. Scope of applicable law..................................................................................................... 7
II. Historical Developments ....................................................................................................... 8
1. Article 3 Hague Convention IV of 1907 ............................................................................ 8
2. World War I ....................................................................................................................... 9
3. World War II .................................................................................................................... 11
a) Peace Agreements with Germany ................................................................................ 11
b) Peace Agreements with Japan...................................................................................... 13
4. The Geneva Conventions of 1949 and the Additional Protocol I .................................... 13
5. Regional Human Rights Courts and Commissions .......................................................... 15
6. Ad-hoc Claims Commissions........................................................................................... 16
a) United Nations Compensation Commission (UNCC) ................................................. 17
b) Eritrea-Ethiopia Claims Commission (EECC) ............................................................ 18
7. World War II revisited ..................................................................................................... 19
a) Distomo Cases.............................................................................................................. 19
b) Forced Labor................................................................................................................ 21
aa) Claims before courts in Germany........................................................................... 22
bb) Claims before courts in Japan ................................................................................ 22
cc) Claims before U.S. courts....................................................................................... 23
c) Comfort women ........................................................................................................... 25
aa) Claims before Courts in Japan................................................................................ 26
bb) Claims before Courts in the U.S. ........................................................................... 26
d) Japanese Germ Warfare ............................................................................................... 27
8. The ILC Draft Articles on State Responsibility ............................................................... 27
9. Recent work of the Human Rights Commission, Resolution 44/2002 ............................ 28
10. Ad-hoc Criminal Tribunals and the International Criminal Court................................. 29
III. Systematic Account of Issues............................................................................................. 30
1. Legal Basis for the Claim................................................................................................. 31
a) International Law ......................................................................................................... 31
b) National Laws .............................................................................................................. 33
2. Exclusion or Subsumtion by Peace Treaties ................................................................... 35
3. Forum for litigation .......................................................................................................... 37
a) International Humanitarian Fact-Finding Commission ............................................... 37
b) International courts and tribunals................................................................................. 38
aa) International Court of Justice ................................................................................. 38
bb) International Criminal Court.................................................................................. 38
cc) Regional Human Rights Courts and Commissions ................................................ 38
(1) Inter-American Commission and Court on Human Rights ................................ 39
(2) European Court of Human Rights ...................................................................... 41
(3) African Commission on Human and Peoples Rights ........................................ 41
c) Domestic or Foreign Courts ......................................................................................... 42
aa) Courts in the United States..................................................................................... 44
bb) Courts in the United Kingdom............................................................................... 46
d) Courts of Respondent State.......................................................................................... 47
IV. Conclusions........................................................................................................................ 48

I. Introduction
In May 2003, the International Law Association instituted a new committee on
Compensations for victims of war and gave it the following mandate:
Innocent civilians are often casualties during armed conflicts, whether or not
intentionally targeted. Deprived of effective protection, they are often left
without any remedy if they are killed or wounded, or suffer property or other
losses. It is time to systematically review the law of war and human rights
with a view to focussing on the rights of victims of war to compensation
both to serve the end of justice and to inhibit wanton attack on civilian
population by the military, whether or not under superior order. The proposed
project would have as its goal the preparation and adoption of a Draft
Declaration of International Law Principles on Compensation to Victims of
War, as a logical sequel to three ILA declarations already adopted: namely, on
Mass Expulsion (Seoul 1986), Compensation to Refugees (Cairo 1992), and
Internally Displaced Persons (London 2000). Underlying all these declarations
is the principle that compensation must, under international law, be paid to
victims of human rights abuses.
It thus reacted to an ever-increasing demand for scholarly work on the issue of
compensation for victims of human rights violations or, more specifically, for civilian victims
of war. First initiatives date back to the early 1990ies.1 More recently, individuals who
themselves - or whose family members - have been victims of human rights or humanitarian
law violations in general international law or instruments of international law that respond to
humanitarian law have instituted procedures before courts of different jurisdictions in order to
claim monetary compensation.2
The following report aims at providing an overview of the development of the present
state of international law and will point to some issues that are open to further development.
1. Terminology
First, some remarks on the terminology used in this report seem necessary. The term
compensation as it appears in the name of the Committee seems to be generally understood
as to cover only a monetary payment in cases where a restitutio ad integrum is not possible.
The overarching term that would cover all forms of redress after a rights violation is
reparation. This terminology formed the basis of the Chorzw Factory case, which
remains the cornerstone of international claims for reparations, whether presented by states or
other litigants3. In its judgment, the Permanent Court of International Justice held:
1

See, e.g., The Right to Restitution, Compensation and Rehabilitation for victims of gross violations of human
rights and fundamental freedoms, Final Report of the Special Rapporteur Mr. Theo van Boven, UN Doc.
E/CN.4/Sub.2/1993/, 2 July 1993; and L. Lee, The Right of Victims of War to Compensation, in R.St.J.
Macdonald (ed.), Essays in Honour of Wang Tieya (1993), p. 489.
2
See most recently the report in the British newspaper The Guardian (of 21 February 2004) on court actions
prepared by family members of Iraqui civilians killed by British troops during the military intervention against
Iraq in 2003.
3
The ICJ has indicated that the basic principle of reparation articulated in the Chorzw Factory case applies to
reparation for injury to individuals, even when a specific jurisdictional provision on reparation is contained in the

The essential principle contained in the actual notion of an illegal act [...] is
that reparation must, as far as possible, wipe out all the consequences of the
illegal act and re-establish the situation which would, in all probability, have
existed if that act had not been committed. Restitution in kind, or, if this is not
possible, payment of a sum corresponding to the value which a restitution in
kind would bear; the award, if need be, of damages for loss sustained which
would not be covered by restitution in kind or payment in place of it such are
the principles which should serve to determine the amount of compensation due
for an act contrary to international law.4
Both the ILC Draft Principles on State Responsibility and the Basic Principles and
Guidelines on the Right to a Remedy and Reparations for Victims of Violations of
International Human Rights and Humanitarian Law proposed by the UN Commission on
Human Rights use reparation as the general term and compensation as one of its special
forms. Given that this interpretation seems to be widely accepted and in order not to unduly
restrict the scope of this report, it will take up the term reparations as the basis of the study.
But the focus of this Report on Compensation is dictated both by the mandate of this
Committee and the fact that the most common remedy to the breach of international
obligations is adequate compensation.5
To further illustrate what different forms reparations for victims of war can take,
reference can be made to the Basic Principles and Guidelines on the Right to a Remedy and
Reparations for Victims of Violations of International Human Rights and Humanitarian Law,
elaborated under the auspices of the UN Commission on Human Rights6 which distinguish
the following cases:
X. Forms of Reparation
21. In accordance with their domestic law and international obligations, and
taking account of individual circumstances, States should provide victims of
violations of international human rights and humanitarian law the following
forms of reparation: restitution, compensation, rehabilitation, and satisfaction
and guarantees of non-repetition.
22. Restitution should, whenever possible, restore the victim to the original
situation before the violations of international human rights or humanitarian
law occurred. Restitution includes: restoration of liberty, legal rights, social
status, family life and citizenship; return to ones place of residence; and
restoration of employment and return of property.
23. Compensation should be provided for any economically assessable damage
resulting from violations of international human rights and humanitarian law,
such as:

statute of the tribunal. Application for Review of Judgement No. 158 of the United Nations Administrative
Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 166 at pp. 197-98.
4
PCIJ, Factory at Chorzw, P.C.I.J. Reports, Series A, No. 17, 1928, p. 47 (emphasis added).
5
C. Oliver, Legal Remedies and Sanctions, in R. Lillich (ed.), International Law of State Responsibility for
Injuries to Aliens, p. 61, 71 (1983).
6
The right to Restitution, Compensation and Rehabilitation for victims of gross violations of human rights and
fundamental freedoms, Final Report of the Special Rapporteur Mr. M. Cherif Bassiouni, E/CN.4/2000/62, 18
January 2000, pp. 5 et seq.

(a) Physical or mental harm, including pain, suffering and emotional distress7;
(b) Lost opportunities, including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity; and
(e) Costs required for legal or expert assistance, medicines and medical services,
and psychological and social services.
24. Rehabilitation should include medical and psychological care as well as legal
and social services.
25. Satisfaction and guarantees of non-repetition should include, where applicable, any or all of the following:
(a) Cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten
the safety of the victim, witnesses, or others;
(c) The search for the bodies of those killed or disappeared and assistance in the
identification and reburial of the bodies in accordance with the cultural practices of the families and communities;
(d) An official declaration or a judicial decision restoring the dignity, reputation
and legal and social rights of the victim and of persons closely connected
with the victim;
(e) Apology, including public acknowledgement of the facts and acceptance of
responsibility;
(f) Judicial or administrative sanctions against persons responsible for the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights and humanitarian law training and in educational material at all levels;
(i) Preventing the recurrence of violations by such means as:
(i) Ensuring effective civilian control of military and security forces;
(ii) Restricting the jurisdiction of military tribunals only to specifically military
offences committed by members of the armed forces;
(iii) Strengthening the independence of the judiciary;
(iv) Protecting persons in the legal, media and other related professions and human rights defenders;
(v) Conducting and strengthening, on a priority and continued basis, human
rights training to all sectors of society, in particular to military and security
forces and to law enforcement officials;
(vi) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military
personnel, as well as the staff of economic enterprises;
(vii) Creating mechanisms for monitoring conflict resolution and preventive intervention.8

On emotional harm see also IACHR, Velsquez-Rodriguez, Judgment of 29 July, 1988, Series C, No. 4 at para.
158.
8
Paras. 21 - 25.

It is important to point out that current international law does not recognize punitive
damages9 although it has been suggested that punitive damages should be considered in cases
of grave violations of human rights and humanitarian law.
A definition of persons falling into the category of victims of war seems appropriate
considering that the term victim does not appear in humanitarian law treaties. However
their existence is nevertheless presupposed, because it is their protection the treaties were
enacted for10. Again a reference to the UNCHR Basic Principles and Guidelines on the Right
to a Remedy and Reparations for Victims of Violations of International Human Rights and
Humanitarian Law provides the necessary clarity: A person is a victim where, as a result
of acts or omissions that constitute a violation of international human rights or humanitarian
law norms, that person, individually or collectively, suffered harm, including physical or
mental injury, emotional suffering, economic loss, or impairment of that persons
fundamental legal rights11.
On the other hand, Emanuela-Chiara Gillard points out that the requirement of a
violation of humanitarian law or human rights law in the definition of the victim, as
presupposed by the term reparation might lead to injustices in practice.12 She suggests
avoiding these problems by having recourse to a wide definition of victims so as to include all
persons adversely affected by a conflict or another wide test such as the violation of jus ad
bellum13. While Gillards point is certainly valid, the present report still maintains the
definition of the victim as stated out above. Using the violation of the ius ad bellum as a
criterion seems problematic as it would leave citizens of the state who violated the ius ad
bellum unprotected14. Taking all persons adversely affected by the war as a basis for this
study would be difficult because it would simply not be specific enough to characterize the
cases that will be presented below. This does not mean, however, that in the future course of
the Committees work the definition of the victim should not be revisited and possibly
extended.
2. Function
Reflecting briefly on the function reparation for war victims can fulfill, the position of
the victim needs to be the point of departure. Reparation can help victims to some extent in
rebuilding their lives, be it on the financial, emotional or legal plane. Help is the term used
9

S. Kadelbach, Staatenverantwortlichkeit fr Angriffskriege und Verbrechen gegen die Menschlichkeit, in


Deutsche Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die
Konstitutionalisierung der Welthandelsordnung (2003), p.63 at p. 86; W. Heintschel von Heinegg,
Entschdigung fr Verletzungen des humanitren Vlkerrechts, in Deutsche Gesellschaft fr Vlkerrecht
(ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der Welthandelsordnung (2003),
p. 1 at p. 39.
10
See L L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International
Review of the Red Cross (2003), p. 497 at p. 501.
11
Para 8.
12
Gillard cites the following as an example: Insistence on the need for a violation would mean that a civilian
whose home was targeted would be compensated, but that his neighbor, whose dwelling was destroyed as the
result of permissible collateral damage, would not.; E.-C. Gillard, Reparations for violations of international
humanitarian law, 85 International Review of the Red Cross (2003), p. 529 at p. 551.
13
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at p. 551. On the subject of reparations for violations of the ius ad bellum see also S.
Kadelbach, Staatenverantwortlichkeit fr Angriffskriege und Verbrechen gegen die Menschlichkeit, in
Deutsche Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die
Konstitutionalisierung der Welthandelsordnung (2003), p.63 et seq.
14
Although admittedly reparations have in practice regularly been such a one-way street.

deliberately here, because it seems naive to assume that restitution to the status quo ante
could ever be achieved in a significant number of cases.
On another level, reparations can serve a purpose by ensuring better compliance with the
norms protecting individuals in wartime15. The fact that reparations presuppose a breach of
norms of international law16 further strengthens this connection. Of course, reparations come
by definition only into play once a violation has already taken place, but a secondary right to
reparation nevertheless gives additional recognition to the primary right it is related to and can
to some extent deter future violations17.
3. Scope of applicable law
As the mandate of the Committee is confined to Compensation for victims of war, this
study will focus on those laws applicable in wartime, especially the international humanitarian
law. As the International Court of Justice held in its Advisory Opinion Legality of the Threat
or Use of Nuclear Weapons, the law applicable in armed conflict, which is designed to
regulate the conduct of hostilities, constitutes a lex specialis18. It is also widely recognized
that the system of international humanitarian law is a self-contained regime19 which has its
own system of secondary norms which may not be extended by reference to other bodies of
law20. While there is undoubtedly a cross-fertilization between human rights law and
humanitarian law21, there are good reasons not to consider them to be one and the same. The
fact that the latter is designed to apply in situations of armed conflict and the former mainly in
times of peace notwithstanding that human rights law will remain applicable even in times
of armed conflict as long as it is not superseded by the law of armed conflict or derogated
according to the applicable rules of international human rights law - and the resulting

15

W. Heintschel von Heinegg, Entschdigung fr Verletzungen des humanitren Vlkerrechts, in Deutsche


Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 1 at p. 20 with further references.
16
W. Heintschel von Heinegg, Entschdigung fr Verletzungen des humanitren Vlkerrechts, in Deutsche
Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 1 at p. 20; J-M. Arbour, Droit International Public, (4e d. 2002), p. 507.
17
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at p. 530; W. Heintschel von Heinegg, Entschdigung fr Verletzungen des
humanitren Vlkerrechts, in Deutsche Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten
Konflikten/Die Konstitutionalisierung der Welthandelsordnung (2003), p. 1 at p. 20; E. Klein, Individual
Reparation Claims under the International Covenant on Civil and Political Rights: The Practice of the Human
Rights Committee, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p.
27 at p. 27; A.H. Robertson, Implementation System: International Measures, in L. Henkin (ed.), The
International Bill of Rights (1981), p. 357.
18
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996,
p. 225 at p. 240.
19
ICJ, Case concerning US Diplomatic and Consular Staff in Teheran, Judgment of 24 May 1980, I.C.J. Reports
1980, p. 3 at pp. 40-41.
20
T. Kamenov, The Origin of State and Entity Responsibility for Violations of International Humanitarian Law
in Armed Conflicts, in F. Kalshoven/Y. Sandoz (eds.), Implementation of International Humanitarian Law
(1989), p. 169 at p. 170.
21
L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review of
the Red Cross (2003), p. 497 at p. 505; J.K. Kleffner, Improving Compliance with International Humanitarian
Law Through the Establishment of an Individual Complaints Procedure, 15 Leiden Journal of International
Law (2002), p. 237 at p. 245.

differences in the state-individual relationship have distinctly shaped both bodies of law as
regards their substantive contents, their applicability, and their enforcement mechanisms22.
II. Historical Developments
The following chapter will briefly outline historical patterns in the attempts to establish
individual remedies for victims of war.
1. Article 3 Hague Convention IV of 1907
Well before the development of the modern system of international humanitarian law,
norms of the law of war provided for a compensation for victims of hostilities. Article 3 of the
Hague Convention IV of 1907 respecting the laws and customs of war on land stated:
A belligerent party which violates the provisions of the said Regulations shall,
if the case demands, be liable to pay compensation. It shall be responsible for
all acts committed by persons forming part of its armed forces.
While this liability to pay compensation is, at least in part, aimed at ultimately
benefiting the victims of the unlawful conduct23, the provision does not seek to empower
individuals to claim this compensation by themselves. Article 2 stipulates that the Convention
applies between Contracting Parties; nowhere in the Convention are individuals named as
direct beneficiaries or claimants of the said compensation24. Compensation for violations of
the Convention is available only to states.25.
Article 3 of the Hague Convention therefore did not constitute a departure from the
traditional principle26 according to which only states can claim compensation from one
22

See R. Provost, International Human Rights and Humanitarian Law (2002), pp. 8-10, 56, 343-345; R. Dolzer,
The Settlements of War- Related Claims: Does International Law Recognize a Victims Private Right of
Action? Lessons after 1945, 20 Berkeley Journal of International Law (2002), p. 296 at p. 337.
23
See E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of
the Red Cross (2003), p. 529 at p. 536; F. Kalshoven, State Responsibility for Warlike Acts of the Armed
Forces: From Article 3 of the Hague Convention IV of 1907 to Article 91 of Additional Protocol I and Beyond,
40 International and Comparative Law Quarterly (1991), p. 827 at p. 830; M. Frulli, When Are States Liable
Towards Individuals for Serious Violations of Humanitarian Law? The Markovic Case 1 Journal of
International Criminal Justice (2003), p. 406 at p.417 and p. 426.
24
See German Federal Supreme Court (Bundesgerichtshof - BGH), Distomo, BGH III ZR 245/98, 26 June
2003.
25
K. Strupp, Das Internationale Landkriegsrecht (1914), p. 29; D. Kube, Private Kriegsschden in der
vlkerrechtlichen Praxis. Ein Beitrag zur Staatenverantwortlichkeit im Kriege (1971), p. 41; R. Provost,
International Human Rights and Humanitarian Law (2002), p. 45 both with further references. Courts in various
countries have consistently held that Article 3 of the Convention does not support individual claims. United
States: Tel Oren v. Libyan Arab Republic, 726 F. 2d 774, 816 (D.C. Cir. 1984); Leo Handel v. Artukovic, 601 F.
Supp. 1421 (D.D.C., 1985); Goldstar (Panama) S.A. v. United States, 967 F. 2d. 965, 968-969 (4th Cir. 1992);
Germany: German Supreme Appellate Court (BGH), Distomo, BGH III ZR 245/98, 26 June 2003; Japan:
Tokyo High Court, Judgment of 8 February 2001, 45 The Japanese Annual of International Law (2002), p. 142;
Judgment of 11 October 2001, 45 The Japanese Annual of International Law (2002); Italy: Italian Court of
Cassation (Corte di Cassazione), Soc. Timber, Soc. Zeta, Soc. Obla v. Ministeri Esteri e Tesoro, 18 International
Law Reports (1951), p. 621 at p. 622.
26
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at p. 534 even goes as far as to say that Article 3 is only a declaratory expression of the
general principle spelled out in the Chorzw Factory Case that a violation of international law leads to
reparation.

another for violations of international law, the fact that an individual was harmed being only
the basis for the claim (mediatization of the individual)27. Dionisio Anzilotti summarized
the prevailing opinion on the issue when he said: la conduite dun Etat, toute contraire
quelle soit au droit international, ne saurait jamais donner naissance un droit de lindividu
la rparation du dommage souffert.28 Of course, the position of the individual today could no
longer be summed up in a simple sentence as it was considered sufficient in Anzilottis
times29. But at least in part his statement remained true into modern times as the famous
dictum of the International Court Justice in the Barcelona Traction Case proves: in interstate relations, whether states claims are made on behalf of a States national or on behalf of
the State itself, they are always claims of the State30.
2. World War I31
Beginning with the Versailles Treaty concluding World War I, the term reparations
came into use32. Reparations were clearly associated with a moral and legal judgment33 and
were negotiated exclusively between states. Before that time, the focus had been on
27

W. Heintschel von Heinegg, Entschdigung fr Verletzungen des humanitren Vlkerrechts, in Deutsche


Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 1 at p. 25; A. Verdross/B. Simma, Universelles Vlkerrecht (3rd ed. 1984), pp.
873 et seq.; E. Klein, Individual Reparation Claims under the International Covenant on Civil and Political
Rights: The Practice of the Human Rights Committee, in A. Randelzhofer/C. Tomuschat (eds.), State
Responsibility and the Individual (1999), p. 27 at p. 27. On the other hand, the Expert Opinions by Frits
Kalshoven, Christopher Greenwood, and Eric David in the Prisoner-of-War Cases before the Tokyo High Court
(decided in November 1998) argue that individuals could claim compensation from Japan for violation of the
laws of war under Article 3 of the Hague Convention IV of 1907. The opinions are published in H. Fujita/I.
Suzuki/K. Nagano (eds.), War and the Rights of Individuals: Renaissance of Individual Compensation (1999),
pp. 31-71.
28
D. Anzilotti, La rsponsabilit internationale des Etats raison des dommages soufferts par des trangers,
Revue gnrale de droit international public 13 (1906), p. 5 at p. 5. See also the famous dictum of the Permanent
Court of International Justice in the Lotus Case: International law governs relations between independent
States, P.C.I.J. Series A, No. 10, 1927, p. 18.
29
C. Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position
under General International Law, in A. Randelzhofer/ C. Tomuschat (eds.), State Responsibility and the
Individual (1999), p. 1 at p. 2.
30
ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February
1970, I.C.J. Reports 1970, p. 3 at p. 46. In this tradition, Bosnia-Herzegovina is currently demanding from
Yugoslavia (Serbia and Montenegro) in its own right and as parens patriae for its citizens, reparations for
damages to persons and property, ICJ, Case Concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order
of 8 April 1993, I.C.J. Reports 1993, p. 3 at p. 7; Case Concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and
Montenegro)), Order of 13 September 1993, I.C.J. Reports 1993, p. 325 at p. 329, under r) respectively. See also
PCIJ, The Mavrommatis Palestine Concessions, P.C.I.J. Series A, No. 2, 1924, p. 12; The Panevezys-Saldutiskis
Railway Case, Series A/B, No. 76, 1939, p. 16; ICJ, Reparation for Injuries suffered in the Service of the United
Nations, Advisory Opinion of 11 April 1949, I.C.J. Reports 1949, p. 174 at p. 181-182; Nottebohm Case
(Liechtenstein v. Guatemala), Judgment of 6 April 1955, I.C.J. Reports 1955, p. 4 at p. 24; The American Law
Institute, Restatement of the Law, Third, Foreign Relations Law of the United States (1987), 902 cmt. (h)(I); L.
Henkin, Foreign Affairs and the Constitution (1972), p. 262; E. Borchard, The Diplomatic Protection of Citizens
Abroad (1915), p. 251; similarly Shaw, International Law, (5th ed. 2003), p. 722.
31
See I. Seidl-Hohenveldern, Kriegsentschdigung (Regelung in den Friedensvertrgen nach dem Ersten
Weltkrieg), Wrterbuch des Vlkerrechts II (1961), p. 238.
32
K. Doehring, Reparationen fr Kriegsschden, in K. Doehring/B.J. Fehn/H.G. Hockerts (eds.),
Jahrhundertschuld,
Jahrhundertshne:
Reparationen,
Wiedergutmachung,
Entschdigung
fr
nationalsozialistisches Kriegs- und Verfolgungsunrecht (2001), p. 9 at p. 9.
33
See Article 231 of the Versailles Treaty.

recovering the costs of war and the defeated state was thus obliged to pay war
indemnities34. The term reparations on the other hand reflected the aim of the victorious
Allied powers to hold the defeated state liable not only for the costs of war, but also for all
the loss and damage to which [...] Governments and their nationals have been subjected as a
consequence of the war imposed upon them35.
This development took account of the fact that the laws of war increasingly sought to
protect the civilian population but that the new legal framework only allowed the victorious
state and not individual claimants to demand compensation for individual losses36. State
practice after World War I was therefore in line with the established and accepted principles
of international law governing individual war claims37. What is more, this Peace Treaty and
many yet to come based the duty to pay reparations more on an infringement of the ius ad
bellum or the general notion of war-related claims than on a specific reference to violations
of the ius in bello38.
In some instances, however, individual claims were allowed. As an example one can
point to the claims brought by U.S. citizens against Germany for violations of the laws of war
which were decided by the U.S.-German Mixed Claims Commission39. The legal basis for
such claims was Article 297 (e) of the Treaty of Versailles which provided:
The nationals of Allied and Associated Powers shall be entitled to
compensation in respect of damage or injury inflicted upon their property,
rights or interests, including any company or association in which they are
interested, in German territory as it existed on August 1, 1914 [...] The
claims made in this respect by such nationals shall be investigated, and the
total of the compensation shall be determined by the Mixed Arbitral Tribunal
provided for in Section VI or by an Arbitrator appointed by that Tribunal.
This compensation shall be borne by Germany, and may be charged upon the
property of German nationals within the territory or under the control of the
claimant's State. This property may be constituted as a pledge for enemy
liabilities under the conditions fixed by paragraph 4 of the Annex hereto. The
payment of this compensation may be made by the Allied or Associated
State, and the amount will be debited to Germany.40
34

For a very recent and thorough account of law and practice of war reparations see P. dArgent, Les
Rparations de Guerre en Droit International Public La Rsponsabilit Internationale des Etats lpreuve de
la Guerre (2002).
35
Treaty of Peace Between the Allied and Associated Powers and Germany, June 28, 1919, Art. 231, 1 Bevans
43, 137-38. See also R. Dolzer, The Settlement of War-Related Claims: Does International Law Recognize a
Victim's Private Right of Action? Lessons after 1945, 20 Berkeley Journal of International Law (2002), p. 296
at p. 310; W. Heintschel von Heinegg, Entschdigung fr Verletzungen des humanitren Vlkerrechts, in
Deutsche Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die
Konstitutionalisierung der Welthandelsordnung (2003), p. 1 at p. 23; I. Seidl-Hohenveldern, Reparations, in R.
Bernhard (ed.), Encyclopedia of Public International Law (2000), IV p. 178.
36
R. Dolzer, The Settlement of War-Related Claims: Does International Law Recognize a Victim's Private
Right of Action? Lessons after 1945, 20 Berkeley Journal of International Law (2002), p. 296 at p. 310.
37
R. Dolzer, The Settlement of War-Related Claims: Does International Law Recognize a Victim's Private
Right of Action? Lessons after 1945, 20 Berkeley Journal of International Law (2002), p. 296 at p. 310.
38
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at p. 533-534; similarly de Preux, Article 91, in Y. Sandoz/C. Swinarski/B.
Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (1989), para. 3647. It has been argued that it would have been impractical to do otherwise given
that it is often difficult to establish an accurate account in retrospect of the circumstances that caused the
damage, see e.g. War Claims, Report of the Advisory Commission, Ottawa/Canada, 25 February 1952, p. 31.
39
See D. J. Bederman in R. B. Lillich (ed.), The United Nations Compensation Commission (1995), p. 257 at p.
272-273 with further references.
40
See further B.W. Eichhorn, Reparation als vlkerrechtliche Deliktshaftung (1970), p. 74 et seq.

10

Nevertheless, it remains true that the reparation regime after World War I was firmly
grounded on the view that reparations were inter-state matters. The determination of
individual damages was only part of a larger effort to calculate the inter-state obligations to
pay reparation41.
3. World War II42
The immediate aftermath of World War II saw a novel development: the criminal
responsibilities of individuals for atrocities committed during the war. Before tribunals in
Nuremberg and Tokyo, politicians and officers were held responsible for war crimes.
Victims seeking reparation could not profit from the progress made in the area of individual
criminal responsibility. Approximately 95% of all claims were regulated by lump-sum
agreements with the respective home state of the victims, which received money and
distributed it under own discretion without there being the intent to provide full coverage for
every individual damage43.
a) Peace Agreements with Germany44
Peacemaking with Germany was a longer process that involved a series of agreements,
starting with the Potsdam Agreement of 1945 that confirmed Germanys general obligation to
pay reparation to the Allied Powers and determined that they would largely be paid through a
transfer of industrial assets to the Allies. The Paris Agreement of 1946 elaborated the
reparation scheme further. Its underlying principle was that Germany would owe a certain
share of its assets to the Allies without attempting to achieve full compensation of all
damages inflicted. Individual claims of citizens were explicitly subsumed by the
arrangement45. An Interallied Reparation Agency (IARA) was given the task of dividing the
German assets among the contracting states a task in which it ultimately failed. Again the
parties to the Paris Agreement did not intend it to finally resolve all reparation issues and
reserved their rights with respect to the final settlement of German reparations.46 In a series
of bilateral treaties which the Allied powers concluded in 1947 with Romania, Hungary and
Bulgaria as former allies of Nazi Germany, these nations waived on their own behalf and on
behalf of their nationals all claims against Germany and German nationals, including those for
loss and damage during the war.
41

B. He, Kriegsentschdigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht, in Deutsche


Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 107 at p. 134.
42
See I. Seidl-Hohenveldern, Reparations After World War II, in R. Bernhard (ed.) Encyclopedia of Public
International Law (2000), IV, p. 180.
43
M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), p. 106; R.B. Lillich/B.
Weston, International Claims: Their Settlement by Lump Sum Agreements, Part I: The Commentary (1975), p.
11.
44
See R. Dolzer, The Settlement of War- Related Claims: Does International Law Recognize a Victims Private
Right of Action? Lessons after 1945, 20 Berkeley Journal of International Law (2002), p. 296 at pp. 313- 335;
K.J. Partsch, The Federal Republic of Germany, Report of the Maastricht Seminar, Special No. 12 (11- 15
March 1992), pp. 130- 143; C.P. Meade, From Shanghai to Globocourt: An Analysis of the Comfort
Womens Defeat in Hwang v. Japan, 35 Vanderbilt Journal of Transnational Law (2002), p. 211 at pp. 238243.
45
Article 2 (A) of the Paris Agreement 1946.
46
Article 2 (B) (ii) of the Paris Agreement 1946.

11

For some time after the war, Germany had not been vested with the legal capacity to
enter into agreements with foreign states. It regained this capacity in the early 1950s and
while this transition to sovereignty was under way, the Allies shifted responsibility for the
compensation of victims of Nazi oppression to Germany. In an agreement which has become
known as the Transition Agreement of 1954 Germany assumed the obligation to ensure
restitution and reallocation of property unlawfully seized under the Nazi regime and to
provide adequate compensation to persons persecuted for their political convictions, race,
faith or ideology, who thereby have suffered damage to life, limb, health, liberty, property,
their possessions or economic prospects. Again, the Transition Agreement was not meant to
be a final resolution of all reparation claims of the Western Allies and a final settlement as
deferred to a comprehensive peace treaty. Just as the Potsdam and Paris Agreements
subsumed private claims against Germany and German nationals, so did the Transition
Agreement subsume such claims. The London Debt Agreement of 1953 reiterated the deferral
of a final settlement of the reparation problem. In 1990, the Soviet Union, France, Great
Britain and the United States, on the one hand, and East Germany and West Germany, on the
other, concluded the Treaty on the Final Settlement with Respect to Germany (the 2 + 4
Treaty). It brought nothing new on the question of reparations. This left the Transition
Agreement and the bilateral treaties as the last word on this matter.
In the years subsequent to the Transition Agreement, Germany enacted federal
legislation47, such as the 1957 Federal Law on the Settlement of Restitutionary Monetary
Obligations of the German Reich and Equivalent Legal Entities (BruG)48 and 1956 the
Third Federal Law of Compensation of Victims of Nazi Oppression (BEG)49. In the late
1950s and early 1960s, Western Germany concluded twelve treaties with western European
countries which provided funds to those countries for distribution among their nationals who
had been victims of the Nazis. In 1980, the Federal Republic of Germany and the Claims
Conference established a Hardship Fund for a large number of Jews from the Soviet Union
and other Eastern European countries who had previously not been able to apply for
compensation before the filing periods under the existing statutes. When the Cold War ended,
Germany moved to extend its compensation policy to countries of the former Eastern Bloc. It
concluded agreements with Poland, Belarus, the Russian Federation and the Ukraine
providing funds to those countries for distribution to victims of Nazi persecution. Additional
funds have been provided inter alia for the Claims Conference for the benefit of Jewish
victims still living in Eastern Europe, for victims of Nazi oppression living in southeastern
European countries such as Yugoslavia, Hungary, Romania, Bulgaria, and Slovakia, and for
victims who were United States nationals when they suffered persecution.
A 1993 United Nations report examined the German compensation scheme and
concluded that: The most comprehensive and systematic precedent of reparation by a
government to groups of victims for redress of wrongs suffered is provided by the Federal
Republic of Germany to the victims of Nazi persecution50.

47

See K. Heilig, From the Luxembourg Agreement to Today: Representing a People, 20 Berkeley Journal of
International Law (2002), p. 176 at pp. 183 et seq.
48
Federal Law on the Settlement of Restitutionary Monetary Obligations of the German Reich and Equivalent
Legal Entities (Bundesrckerstattungsgesetz) of 19 July 1957, German Federal Law Gazette (BGBl.) Vol. 1957I, p. 734.
49
Federal Compensation Law (Bundesentschdigungsgesetz) of 29 June 1956, German Federal Law Gazette
(BGBl.) Vol. 1956-I, p. 559.
50
UN Commission on Human Rights, Study Concerning the Right to Restitution, Compensation and
Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms (van Boven
Report), para. 107, UN Doc. E/CN.4/Sub.2/1993/8, 2 July 1993, p. 50.

12

b) Peace Agreements with Japan51


The key difference between Japan and Germany as regards the settlement of post-war
reparations is the fact that the peace process with Germany occurred in several stages, while
Japan in 1951 concluded a formal peace treaty in San Francisco. This agreement again
contained provisions for all subjects typical of a modern peace treaty: territorial issues,
political matters, financial and economic elements were included. The San Francisco Peace
Treaty of 1951 also recognized Japans obligation in principle to pay reparations to the
governments of states Japan had invaded during the war. The treaty did not, however, go into
further details, but left the determination of the exact reparations to subsequent bilateral
agreements. The United States waived its right to reparations and so did Nationalist China and
the Peoples Republic of China. Bilateral agreements with other states fixed relatively small
reparation sums. Most of these agreements disallowed claims by individuals against Japan52.
Overall, the post-war reparation agreements with Japan showed clear characteristics of classic
interstate settlements with lump-sum payments that the recipient state would distribute, while
excluding individual claims.
4. The Geneva Conventions of 1949 and the Additional Protocol I
In view of the cruelties committed in World War II, the law of international armed
conflict was placed on an entirely new basis. The protection of the human victim was placed
in the center of these efforts, expressed inter alia in the name for the new body of law that
emerged: international humanitarian law. With regard to the question of reparations, however,
the four Geneva Conventions of 1949 brought nothing new. They contained no explicit
provision about compensation53. This provision came only in 1977 when the First Additional
Protocol to the 1949 Geneva Conventions and relating to the protection of victims of
international armed conflicts54 was adopted. It contained in its Article 91 a nearly literal
reproduction of Article 3 of the Hague Convention IV Concerning the Laws and Customs of
War on Land of 1907:
Article 91 - Responsibility
A Party to the conflict which violates the provisions of the Conventions or of
this Protocol shall, if the case demands, be liable to pay compensation. It shall
be responsible for all acts committed by persons forming part of its armed
forces.

51

See R. Dolzer, The Settlement of War-Related Claims: Does International Law Recognize a Victim's Private
Right of Action? Lessons after 1945, 20 Berkeley Journal of International Law (2002), p. 296 at pp. 311 et seq;
C.P. Meade, From Shanghai to Globocourt: An Analysis of the Comfort Womens Defeat in Hwang v.
Japan, 35 Vanderbilt Journal of Transnational Law (2002), p. 211 at pp. 225-231; H.N. Scheiber, Taking
Responsibility: Moral and Historical Perspectives on the Japanese War- Reparations Issues, 20 Berkeley
Journal of International Law (2002), p. 233 at pp. 235- 238.
52
See L. Hein, War Compensation: Claims against the Japanese Government and Japanese Corporations for
War Crimes, in J. Torpey (ed.), Politics and the Past: On Repairing Historical Injustices (2003), p. 127 at p.
132.
53
There was only an implicit recognition of the duty to compensate, see Article 51 Convention I, Article 52
Convention II, Article 131 Convention III, Article 148 Convention IV.
54
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), adopted on 8 June 1977 by the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, entry into
force 7 December 1979, 1125 U.N.T.S. 3.

13

The Additional Protocol went into force in 1979. However, the application of the
principle contained in the provision does not depend on ratification as it is seen to restate
customary international law55. While some have argued that the purpose of Article 91 was to
strengthen individual rights, this can only be understood as reinforcing the position of
individual victims as the ultimate beneficiaries of the compensation. There is no indication
that Article 91 sought to confer a procedural capacity upon individuals to claim the
compensation directly from the violating state56. The very fact that Article 91 was accepted by
the Conference in 1977 without much discussion as a mere restatement of customary
international law57 supports the view that there was no intention to venture onto new legal
grounds and new legal grounds is what a right to a remedy for victims of violations of
international humanitarian law would undoubtedly have been58. Instead, Article 91 should be
understood along the same lines as Article 3 of the Hague Convention IV of 1907, i.e. as not
supporting individual claims for compensation59.
What has been said with regard to Article 3 of the Hague Convention of 1907 applies
even more to the system of humanitarian law set up by the Geneva Conventions and the
subsequent Protocols: the provisions contained therein aim beyond the inter-state level at the
protection of individuals60. However, while the protection of individuals through
humanitarian law has become more and more developed on the level of primary rights over
the years, this has not been true for secondary, especially procedural rights. There still is no
judicial or quasi-judicial body with the explicit competence to consider complaints by victims
of violations of international humanitarian law61. As Liesbeth Zegveld has recently stated:
55

ICRC, Commentary, Article 91, p. 1053, para. 3645; L. Zegveld, Remedies for victims of violations of
international humanitarian law, 85 International Review of the Red Cross (2003), p. 497 at p. 506 footnote 32;
W. Heintschel von Heinegg, Entschdigung fr Verletzungen des humanitren Vlkerrechts, in Deutsche
Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 1 at p. 59; Expert Opinion by F. Kalshoven, Article 3 of the Convention (IV),
respecting the laws and customs of war on land, in H. Fujita, I. Suzuki, K. Nagano (eds.), War and the Rights of
Individuals (1999), p. 31 at p. 32 who cites decisions of the International Military Tribunals at Nuremberg and
Tokyo which had already considered the provisions of the Hague Convention IV (1907) to be part of
international customary law.
56
L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review of
the Red Cross (2003), p. 497 at p. 507; also C. Tomuschat, Reparation for Victims of Grave Human Rights
Violations, 10 Tulane Journal of International and Comparative Law (2002); p. 157 at p. 179.
57
L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review of
the Red Cross (2003), p. 497 at p. 506, footnote 32, see also: M. Frulli, When Are States Liable Towards
Individuals for Serious Violations of Humanitarian Law? The Markovic Case, 1 Journal of International
Criminal Justice (2003), p. 406 at p.416; F. Kalshoven, State Responsibility for Warlike Acts of the Armed
Forces: From Article 3 of the Hague Convention IV of 1907 to Article 91 of Additional Protocol I and Beyond,
40 International and Comparative Law Quarterly (1991), p. 827 at pp.844 et seq.
58
W. Heintschel von Heinegg, Entschdigung fr Verletzungen des humanitren Vlkerrechts, in Deutsche
Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 1 at p. 39.
59
J. de la Preux, ICRC Commentary, Article 91, p. 1053, para. 3645; C. Tomuschat, Reparation for Victims of
Grave Human Rights Violations, 10 Tulane Journal of International and Comparative Law (2002), p. 157 at p.
178 et seq.
60
G. Abi-Saab, The specificities of humanitarian law, in C. Swinarski (ed.), Studies and Essays of
International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC (1984), p. 269.
61
R. Provost, International Human Rights and Humanitarian Law (2002), p. 50; J. K. Kleffner/L. Zegveld,
Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law, Yearbook
of International Humanitarian Law, vol. 3 (2000), p. 384, at 384. (also in: Collection of Documents for the
Expert Meeting Remedies for victims of violations of international humanitarian law, Amsterdam Center for
International Law, 9-10 May 2003, p. 71 at 71.); similarly L. Zegveld, Remedies for victims of violations of
international humanitarian law, 85 International Review of the Red Cross (2003), p. 497 at pp. 497, 514; B.
Kempen, Der Fall Distomo: griechische Reparationsforderungen gegen die Bundesrepublik Deutschland, H-J.

14

The IHL regime focuses solely on persons to be protected against the dangers of war, leaving
open the question of action when protection fails62.
5. Regional Human Rights Courts and Commissions
Parallel to these developments in international humanitarian law, new systems of human
rights protection began to emerge, both on a global and a regional level. While global
instruments such as the Universal Declaration of Human Rights of 194863 and the
International Covenant on Civil and Political Rights of 196664 came without viable
enforcement mechanisms65, regional human rights conventions in Europe66 and the
Americas67 contained a supervisory system of commissions and tribunals that was competent
to receive complaints from individuals and to make decisions determining rights violations
and the duty to pay compensation68 that are binding upon member states69. For the particular
case of victims of war, significant difficulty arises from the fact that the competence of the
supervisory bodies was both established by and limited to human rights treaties while the
proper solution of the case might demand some form of application of humanitarian law as the
lex specialis for situations of armed conflict70.
Human rights treaties often impose on the State Parties the obligation to provide
effective remedies before domestic courts which may extend to a possibility for victims to

Cremer (ed.), Tradition und Weltoffenheit des Rechts Festschrift fr Helmut Steinberger (2002), p. 179 at p.
190.
62
L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review of
the Red Cross (2003), p. 497 at pp. 502, 507. See also the ICRC Commentary to the 1949 Geneva Conventions,
Pictet, IV, at 211 and 603: The Convention does not give individual men and women the right to claim
compensation. The State is answerable to another contracting State and not to the individual [] It is
inconceivable, at least as the law stands today, that claimants should be able to bring a direct action for damages
against the State in whose service the person committing the breach was working.
63
Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.
64
International Covenant on Civil and Political Rights of 19 December 1966, G.A. res. 2200A (XXI), 21 U.N.
GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force 23 March 1976.
65
This study does not further discuss the role of the Human Rights Committee under the International Covenant
on Civil and Political Rights; for a detailed discussion of this topic see E. Klein, Individual Reparation Claims
under the International Covenant on Civil and Political Rights: The Practice of the Human Rights Committee,
in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 27.
66
European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 as
amended by Protocol 11 of 11 May 1994, 213 U.N.T.S. 221 and 155 E.T.S.
67
American Convention of Human Rights of 22 November 1969, 1144 U.N.T.S. 123.
68
See Article 41 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as
amended by Protocol 11; Article 63 (1) of the American Convention of Human Rights. However, both
provisions leave some discretion to the courts which may include compensation in the awards if necessary or
if appropriate respectively. A famous case under the European Convention is McCann and Others v. the
United Kingdom, Judgment of 27 September 1995, Series A, No. 324, para. 219, in which the European Court of
Human Rights had denied a compensation award for the killing of three IRA members who had been gunned
down in Gibraltar. The Court determined that their killing was a violation of the right to life under the
Convention but since the three victims were terrorists planning a bomb attack, the Court considered
compensation inappropriate.
69
Europe: See M. Pellonp, Individual Reparation Claims under the European Convention on Human Rights,
in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 109; Americas: See
W.M. Reisman, Compensation for Human Rights Violations: The Practice of the Past Decade in the Americas,
in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 63; J.M. Pasqualucci,
The Practice and Procedure of the Inter- American Court of Human Rights (2003), p. 230.
70
This problem will be addressed below in more detail.

15

claim compensation when their rights under the treaty are infringed71. In addition, after
exhausting domestic remedies, individuals are frequently given the right to claim such
compensation in person before courts established by the respective treaties72.
6. Ad-hoc Claims Commissions
Claims Commissions have traditionally been a more successful way for individuals to
assert their claims for compensation than national courts and other international fora73. Claims
commissions are special arbitral tribunals which are usually set up by bilateral or multilateral
treaty after revolutions and conflicts that led to destruction and the taking of property. They
regularly give private natural and legal persons the exceptional opportunity to bring an
individual claim for compensation against a state.
There are many examples of such commissions over the course of the last century. The
Mixed Claims Commissions set up after World War I have already been mentioned above.
Another famous example is the Iran-U.S. Claims Tribunal which was set up by the Algiers
Accords between the U.S. and Iran in 1981 in order to resolve the crisis in relations between
Iran and the U.S. arising out of the detention of U.S. nationals at the U.S. Embassy in Tehran
that commenced in November 1979 and led to the subsequent freezing of Iranian assets by the
U.S.74 The Tribunal has jurisdiction inter alia to decide claims of individuals of one state
against the other state, which arise out of debts, contracts, expropriations or other measures
affecting property rights. The U.S. agreed to terminate all legal proceedings in United States
courts involving claims of United States persons and institutions against Iran and its state
enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further
litigation based on such claims, and to bring about the termination of such claims through
binding arbitration75. Two other claims commissions deserve to be mentioned in particular:
the United Nations Compensation Commission (UNCC) and the Eritrea-Ethiopia Claims
Commission76.
71

See e.g. Articles 2 (3), 9 (5), 14 (6) of the International Covenant on Civil and Political Rights; Article 14 of
the Convention against Torture; Article 6 of the Convention on the Elimination of Racial Discrimination; Article
5 (5) of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended
by Protocol 11. For some of these norms, it has been controversial whether they give a right to compensation
against the state or whether the states obligations only go as far as providing a legal remedy that could lead to
compensation if successful, see M. Tral, Die Wiedergutmachung von Menschenrechtsverletzungen im
Vlkerrecht (1994), pp. 38 et seq; C. Tomuschat, Human Rights (2003), p. 298; R. Pisillo- Mazzeschi,
International Obligations to Provide for Reparation Claims?, in A. Randelzhofer/C. Tomuschat (eds.), State
Responsibility and the Individual (1999), p. 149 at pp. 162- 165.
72
Article 41 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as
amended by Protocol 11; Article 63 (1) of the American Convention on Human Rights. See further D. Shelton,
Remedies in International Human Rights Law (1999).
73
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at p. 539.
74
See P. Malanczuk, The Iran- United States Claims Tribunal in The Hague- Some Reflections on a Unique
Institution of International Dispute Settlement Moving towards the End of its Work, in: V. Gtz/ P. Selmer/ R.
Wolfrum (eds.), Liber amicorum Gnther Jaenicke- Zum 85. Geburtstag (1998), p. 221 at pp. 223- 230.
75
For the Algiers Accords see the IUSCT website http://www.iusct.org/background-english.html.
76
Other important examples are the (residential) property commissions in Bosnia-Herzegovina and Kosovo. The
Commission for Real Property Claims of Displaced Persons and Refugees in Bosnia and Herzegovina (CRPC)
was set up by the General Framework Agreement for Peace in Bosnia and Herzegovina concluded between the
Former Republic of Yugoslavia, Croatia and Bosnia-Herzegovina in November 1995 (the Dayton Agreement,
Article VII). The Agreement stipulated that all refugees and displaced persons have the right freely to return to
their homes of origin. They shall have the right to have restored to them property of which they were deprived in
the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them.
(Article I of Annex 7). The Commission does not award compensation, but makes final and legally binding

16

a) United Nations Compensation Commission (UNCC)77


The UNCC was created in 1991 by Security Council Resolution 687, which established
Iraqs liability under international law, for any direct loss, damage, including environmental
damage and the depletion of natural resources, or injury to foreign Governments, nationals
and corporations, as a result of Iraqs unlawful invasion and occupation of Kuwait78. This
wording leaves no doubt that the Commission does not have to establish that the injuries were
caused by a violation of the ius in bello; it suffices that they are a result of Iraqs violation of
the ius ad bellum79.
The Commission represented a novel development80. It was the first time that the UN, by
itself, organized the reparation regime in the aftermath of an armed conflict and apportioned
the liability of the Iraqi state. This constituted a departure from the traditional doctrine
according to which liability under international law for war-related damages was an inter-state
matter. While there had been earlier claims commissions where individuals could bring claims
against a state, such as the Iran-U.S. Claims Tribunal, these earlier Commissions and the
individuals rights to bring claims had been established through agreement between the states
involved that chose to exercise their right to diplomatic protection in this particular way. With
the UNCC, it was the UN and not states that empowered individuals to assert claims81.
Naturally, the UNCC had to find a way to treat claimants as individuals while avoiding
being paralyzed by the sheer number of cases and individual claimants. The compromise
found was that individual claims had to be collected by the home states of the claimants and
were then submitted by these states to the UNCC. No natural person had the right to submit
claims directly to the Commission82; private legal persons could only do so under certain
circumstances83. However, there was a safeguard to protect individuals who were not in the
position to have their claims submitted to the UNCC: Palestinians and stateless persons were
specifically named as examples. For these persons, the UNCC Governing Council appointed
decisions on the ownership of property in Bosnia-Herzegovina; see further H. van Houtte, Mass property claim
resolution in a post-war society: the Commission for Real Property Claims in Bosnia and Herzegovina (CRPC),
48 International and Comparative Law Quarterly (1999), p. 625. UNMIK in Kosovo set up the Housing and
Property Directorate and the Housing and Property Claims Commission (UNMIK Regulation 1999/23) which
have the task to resolve the numerous disputes over residential property rights in Kosovo; see further A.
Dodson/A. Heiskanen, Housing and Property Restitution in Kosovo, in S. Lecke (ed.), Returning Home:
Housing and Property Restitution Rights and Internally Displaced Persons (2003).
77
See M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002); N. Whler, The
United Nations Compensation Commission, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and
the Individual (1999), pp. 213- 229; A. Gattani, The UN Compensation Commission: Old Rules, New
Procedures on War Reparations, 13 European Journal of International Law (2002), pp. 161- 181; V.
Heiskanen, The United Nations Compensation Commission, 296 Recueil des Cours (2002), pp. 255- 397; D.
D. Caron/ B. Morris, The UN Compensation Commission: Practical Justice, not Retribution, 13 European
Journal of International Law (2002), pp. 183- 199.
78
UN Security Council Resolution 687 (1991), 8 April 1991, para. 16.
79
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at p. 541; M. Eichhorst, Rechtsprobleme der United Nations Compensation
Commission (2002), p. 89; R. Provost, International Human Rights and Humanitarian Law (2002), p.51; W.
Heintschel von Heinegg, Entschdigung fr Verletzungen des humanitren Vlkerrechts, in Deutsche
Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 1 at p. 24.
80
See M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), p. 195; V.
Heiskanen, The United Nations Compensation Commission, 296 Recueil des Cours (2002), p. 255 at p. 390.
81
See M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), p. 198.
82
Neither would individuals normally appear before the Commission in the course of the proceedings.
83
See Article 5 (3) UNCC Provisional Rules for Claims Procedure.

17

bodies that could submit claims on their behalf, namely the UN Relief and Works Agency for
Palestine Refugees in the Near East (UNRWA), the UN High Commissioner for Human
Rights (UNCHR), and the International Committee of the Red Cross (ICRC)84. By bundling
the cases on the level of states, they did not cease to be individual claims85. States were
obliged to distribute the compensation according to the awards made and not on the basis of
their discretion as it had the traditional solution in reparation cases.
The UNCC has been faced with over 2.6 millions claims seeking a total of nearly $ 350
billion in compensation, which almost all came from individual claimants. Given the limited
resources the Commission has at its disposal it was clear that it could in the end only provide,
as Norbert Whler put it, rough justice for the claimants as a whole, rather than precise
justice in each individual case86.
b) Eritrea-Ethiopia Claims Commission (EECC)
The EECC was established in 2000 by the Eritrea-Ethiopia Peace Agreement87. This
Commission has the exceptional competence to decide claims arising out of violations of
international humanitarian law. The Peace Agreement stated, that its task was to decide
through binding arbitration all claims for loss, damage and/or injury by one Government
against the other, and by nationals (including both natural and juridical persons) of one party
against the Government of the other party or entities owned or controlled by the other party
that are (a) related to the conflict [...], and (b) result from violations of IHL, including the
1949 Geneva Conventions, or other violations of international law88. It is estimated that
approximately 400,000 claims have been submitted by individuals of the two states89.

84

Governing Council Decision No. 5, 18 October 1991, UN Doc. S/AC.26/1991/5. The ICRC was subsequently
replaced by the UN Development Programme (UNDP), N. Whler, The United Nations Compensation
Commission, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 213 at
p. 216; V. Heiskanen, The United Nations Compensation Commission, 296 Recueil des Cours (2002), p. 255
at p. 292. It has been argued that this provision strengthened the concept of erga omnes norms which according
to the ICJ in the Barcelona Traction Case (I.C.J. Rep. 1970, p. 3 at p. 32) are the concern of all States. In view
of the importance of the rights involved, all States can be held to have a legal interest in their protection. In fact,
Governing Council Decision No. 5 seems to reiterate this point when it states: The international community,
represented by the UNCC, bears the overall responsibility for protecting the interests of the above-mentioned
individuals.; see further M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002),
p. 203 et seq.
85
S. Kadelbach, Staatenverantwortlichkeit fr Angriffskriege und Verbrechen gegen die Menschlichkeit, in
Deutsche Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die
Konstitutionalisierung der Welthandelsordnung (2003), p.63 at p. 91; similarly A. Gattani, The UN
Compensation Commission: Old Rules, New Procedures on War Reparations, 13 European Journal of
International Law (2002), p. 161 at p. 170; V. Heiskanen, The United Nations Compensation Commission,
296 Recueil des Cours (2002), p. 255 at p. 290.
86
N. Whler, The Role of Ad-Hoc Claims Commissions Background Report , in Collection of Documents
for the Expert Meeting Remedies for victims of violations of international humanitarian law, Amsterdam
Center for International Law, 9-10 May 2003, p. 50 at p. 51. Claims Commissions typically also apply what
Norbert Whler called the lesser or more relaxed standard of proof [...] in a mass claims context where it is
normally sufficient that claims by individuals are made credible rather than proven as would be the standard in a
judicial or arbitral setting, Id. at p. 57.
87
Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of
the State of Eritrea, 12 December 2000, 40 International Legal Materials (2001), p. 260. For latest developments
see http://www.pca-cpa.org/ENGLISH/RPC/#Eritrea-Ethiopia%20Claims%20Commission (last visited March
2004).
88
Article 5 (1) of the Peace Agreement.
89
L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review of
the Red Cross (2003), p. 497 at p. 522.

18

Mass-claim mechanisms have so far arguably been the most effective way of providing
individual remedies for victims of armed conflict. Claims commissions have the procedural
flexibility to treat mass claims more efficiently than most domestic legal systems that often
would not legally be in the position to provide the rough justice needed to handle claims in
quantities as the UNCC faced them. Yet, one obvious problem remains: the traditional ad-hoc
character of these commissions does not give war victims any a priori certainty that there will
be such a commission at the end of the conflict, which individual procedural rights they will
have to present their claims and which substantive law the Commission will apply 90. As far
as war crimes are concerned, states have moved from ad-hoc tribunals to a permanent court.
While it might be true that a permanent claims court that could handle all post-conflict claims
is hard to conceive, a more realistic project might be to establish a mechanism that would with
some certainty bring special conflict-related claims commissions into being.

7. World War II revisited


Over the last two decades there has been a significant new dynamic to bring attention to
unresolved cases of the legacy of World War II, or, in some cases, to renegotiate terms of
already closed chapters of reparation history.
a) Distomo Cases
A very recent example involves the so-called Distomo lawsuits against Germany. In
1995, individual Greek claimants91 brought a claim before the Court of First Instance of
Leivadia against the Federal Republic of Germany. The plaintiffs based their claims on
atrocities, willful murder and destruction of private property committed by German troops
against the persons and property of the village of Distomo in Voiotia in 1944. They sought
compensation for the material and mental damage suffered as a result of those atrocities.
Germany chose not to attend the trial and the Court rendered a default judgment in 1997,
awarding damages to the individual claimants of 9.5 billion drachmas (approximately $ 30
million)92. The Court held that Germany could not invoke sovereign immunity from the
lawsuit in this case because the state acts in question represented a breach of a rule of jus
cogens. The Courts reasoning was given as follows:
The court observed that, according to Article 43 of the Regulations annexed
to the Hague Convention (No. IV, 1907) Respecting the Laws and Customs of
War on Land93, the belligerent occupation of foreign territory does not entail the
conveyance of sovereignty94. The occupying power is obliged to respect existing
legislation of the occupied territory, as well as the rules of international law
relating to belligerent occupation, including the Hague Regulations and
especially Article 46, which protects certain rights, such as the rights to family
90

See L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International
Review of the Red Cross (2003), p. 497 at p. 523; C.A. Nrgaard, The Position of the Individual in International
Law (1962), p. 235.
91
The Greek Prefecture of Voiotia joined the claim as well.
92
Court of First Instance of Leivadia (Polymeles Protodikeio Leivadias), Prefecture of Voiotia v. Federal
Republic of Germany, Case No. 137/1997, Judgment of 30 October 1997, 92 American Journal of International
Law (1997), p. 765.
93
Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Convention and Hague Regulations].
94
Judgment at 12.

19

honor, life, property and religious convictions95. The court stressed that this
obligation, which is addressed to occupying forces, is part of jus cogens96.
The court concluded that, where a state acts in breach of a rule of jus cogens,
that state loses its right to invoke sovereign immunity97. It stated that this rule,
which was initiated by the International Military Tribunal at Nuremberg98, was
justified for the following reasons:
a) When a state is in breach of jus cogens rules, it cannot bona fide expect
that it will be granted immunity privileges. Therefore, it is assumed that it tacitly
waives the privilege (constructive waiver through the operation of international
law).
b) The acts of a state that violate jus cogens norms do not have the character
of sovereign acts. In such cases it is considered that the accused state did not act
within the ambit of its capacity as a sovereign.
c) Acts contrary to jus cogens norms are null and void, and cannot constitute
a source of legal rights or privileges, such as the claim to immunity, according to
the general principle of law ex injuria jus non oritur.
d) The recognition of immunity by a national court for an act that is contrary
to jus cogens would be tantamount to collaboration by that national court in an
act that is strongly condemned by the international community.
e) The invocation of immunity for illegal acts that were perpetrated in
violation of a rule of jus cogens would constitute an abuse of that right.
f) Since the principle of territorial sovereignty is superior to the principle of
state immunity, a state that violates the former principle by illegally occupying
foreign territory cannot invoke the principle of sovereign immunity for acts
committed during that illegal occupation99.
The court reasoned that, although the atrocities had been committed by
members of the German armed forces, they could not be characterized as acts of
sovereignty because they were perpetrated in violation of jus cogens
norms100.101
In its decision of 4 May 2000, the Hellenic Supreme Court upheld this decision and its
reasoning, adding that it was an established principle in the international law on sovereign
95

See JK v. Public Prosecutor, 87 ILR 93 (Neth. Sup. Ct. 1981) (holding that the killing of a civilian by a
member of the occupying forces was a breach of Article 46 of the Hague Regulations).
96
Judgment at 12. The military tribunals formed at the end of World War II asserted the customary obligation of
the occupant commander to ensure the welfare of the civilian population within his area of authority, and
stressed the strict liability attributed to executive commanders for breaching this obligation. See In re Yamashita,
327 U.S. 1, 16 (1946), where the Supreme Court ruled that Articles 1 and 49 of the Hague Regulations imposed
"an affirmative duty to take such measures as were within [an executive commander's] power and appropriate in
the circumstances to protect prisoners of war and the civilian population." See rulings to the same effect in
United States v. Von Leeb ("The High Command Case"), 11 TRIALS OF WAR CRIMINALS BEFORE THE
NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 462, 544-45, 632
(1950); United States v. List ("The Hostages Case"), id. at 757, 1260.
97
In such a case, the court determined, the state in question has declined to exercise its immunity privilege.
Judgment at 12.
98
Id. at 13.
99
Id.
100
That is, Article 46 of the Hague Regulations, supra note 6. See Judgment at 14-15.
101
I. Bantekas, Prefecture of Voiotia v. Federal Republic of Germany, Case No. 137/1997, Court of First
Instance of Leivadia, 30 October 1997, 92 American Journal of International Law (1997), p. 765 at pp. 766767. The references included are those of the commentator. For a positive analysis of the case see M. Gavouneli,
War Reparation Claims and State Immunity, 50 Revue Hellnique de Droit International (1997), p. 595 at pp.
602- 608.

20

immunity that a state could not claim immunity if the acts in question are torts committed in
the forum state102. The claimants subsequently tried execution of the awards against German
institutions in Greece such as the Goethe Institute Athens and the German Archaeological
School generating political and diplomatic tensions. Execution in Greece ultimately failed,
however, because the claimants required an authorization by the Greek Minister of Justice
that was denied. Lawsuits against this denial were unsuccessful even though they had been
carried as far up as to the European Court of Human Rights103. In its judgment of 17
September 2002, the Special Supreme Court decided on a parallel case that Greek courts did
not have the authority to try cases on reparations for victims of the German occupation as in
fact no state could be tried by the court of another state for reparations of any kind both at
times of war and peace104.
When the claimants sought to enforce their awards in Germany, they were unsuccessful
through all instances. The German Federal Supreme Court105 ruled that the acts in question
were acts de jure imperii106 and therefore covered by sovereign immunity. The Court
recognized various tendencies to restrict sovereign immunity, inter alia for violations of jus
cogens, but held that they were not generally accepted. Therefore, the Greek judgment did not
have any legal effects in Germany.
The Court went on to examine whether the Greek claimants could successfully demand
compensation from Germany under international or German law. The Court did not find such
individual claims per se excluded or subsumed by the various agreements following World
War II which addressed the question of reparations. The Court further concluded that
international law at the time of the incident, including Article 3 of the Hague Convention IV
of 1907, did not recognize individual claims for compensation in cases of a violation of the
laws of war by a state. Rather, to demand such compensation fell within the exclusive domain
of states and the mechanisms of diplomatic protection. Neither was there a basis for such
claims under German national law. The Court held that in wartime, the application of general
tort law is suspended and replaced by the special regime of the laws of war.
b) Forced Labor
Another well-known basis for judicial claims is forced or slave labor. This phenomenon
had existed in earlier wars as well107, but it grew to new dimensions during World War II.
Germany for example recruited laborers first from the occupied western states, e.g., France,
Belgium and the Netherlands, and then huge numbers from Poland and Russia. Some estimate
102

Areios Pagos (Hellenic Supreme Court) Prefecture of Voiotia v. Federal Republic of Germany, Case No.
11/2000, Judgment of 4 May 2000, 95 American Journal of International Law (2001), p. 198. See the critique
by R. Dolzer, Der Areopag im Abseits, Neue Juristische Wochenschrift 2001, p. 3525; see also A. Gattini,
To what Extent are State Immunity and Non- Justiciability Major Hurdles to Individuals Claims for War
Damages?, 1 Journal of International Criminal Justice (2003), p. 348 at pp. 356- 362.
103
European Court of Human Rights, Kalogeropoulou and others v. Greece and Germany, Decision on the
Admissibility,
No.
59021/00,
12
December
2002,
available
at
http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=49&Action=Html&X=302123422&Notice=0&Noticemode
=&RelatedMode=0 (last visited March 2004).
104
DIKE Int 2002, p. 1282; see A. Gattini, To what Extent are State Immunity and Non- Justiciability Major
Hurdles to Individuals Claims for War Damages?, 1 Journal of International Criminal Justice (2003), p. 348 at
pp. 360 et seq.
105
German Federal Supreme Court (BGH), Distomo, BGH III ZR 245/98, 26 June 2003.
106
This did also exclude the applicability of the 1968 Brussels Convention on jurisdiction and the enforcement
of judgments in civil and commercial matters, see Article 1 (1) of the Convention.
107
The Versailles Peace Treaty contained a special provision according to which reparations included damages
caused to civilians by being forced by Germany or her allies to labour without just remuneration., Article 232
Annex I.

21

that fourteen million forced laborers were deported to Germany during the course of the war.
Many of those interned in the concentration camps were forced to work for the German war
machinery and treated terribly. Slave labor was also extensively used by Japan. Claimants
sued both states in national as well as U.S. courts.
aa) Claims before courts in Germany108
German courts have faced a number of cases where individuals claimed reparations for
wartime forced labor both from the German government and private German corporations. In
one of these cases, the Regional Court (Landgericht) in Bonn addressed the question at the
Federal Constitutional Court whether international law only permitted to assert reparation
claims on the basis of an international agreement. The Constitutional Court in its 1996
decision held the request for an opinion for procedurally impermissible but made several
observations by means of an obiter dictum109. First, it held that with respect to international
law as it stood at the end of World War II, war victims were not entitled to claim reparations
themselves, but only their state of nationality. Secondly, however, international law did not
prohibit a state from enacting domestic law which affords individuals a right to compensation
for war related damages such as had been enacted by Germany pursuant to post-war
agreements.
Subsequently, Regional Courts in Bonn110 and Bremen111 ruled that valid claims based
on tort and unjust enrichment may principally be brought by forced laborers under German
law and that their claims had not been waived in bilateral treaties. However, only one plaintiff
finally succeeded before the Bonn Regional Court; in all other cases, the Court held, the
plaintiffs had already recovered compensation under the German statutory reparation scheme.
As for the remaining plaintiff, the Court ruled that his claim was recognized and deferred in
the London Debt Agreement. With the 2 + 4 Treaty, the deferral had been lifted and the claim
was timely.
In December 1998, the Regional Appeals Court (Oberlandesgericht) in Cologne
reversed the judgment of the Bonn Regional Court and ordered that the claim be dismissed112.
It stated that the claims of the plaintiff were not covered by the existing statutes and that the
London Debt Agreement did not intend to establish such a claim. Having reviewed the full
range of German statutes and lump-sum agreements, the Court held that these instruments as a
whole were intended to be a final settlement with respect to all victims. However, the Court
explained that this reasoning applied only to claims against the German State but left claims
against private entities and persons intact.
bb) Claims before courts in Japan

108

See A. Randelzhofer/O. Drr, Entschdigung fr Zwangsarbeit? Zum Problem individueller


Entschdigungsansprche von auslndischen Zwangsarbeitern whrend des Zweiten Weltkriegs gegen die
Bundesrepublik Deutschland (1994).
109
BVerfGE 94, 315.
110
Regional Court Bonn, Judgment of 5 November 1997, No. 1 0 134/92.
111
Regional Court Bremen, Judgement of 2 June 1998, No. 1-0-2889/90, available at http://www.nszwangsarbeiterlohn.de/zwangsar/dokumentation/4_3_prozesse/downloads/bvg_urteil/98_07_02_bremen.rtf (last
visited March 2004)
112
Regional Appeals Court Cologne, Judgement of 3 December 1998, No. 7 U 222/97, 52 Neue Juristische
Wochenschrift (1999), p. 1555.

22

In Japan, several actions brought by ex-prisoners of war against Japan demanding


compensation for forced labor during World War II, were unsuccessful, because the courts
held that the norms of international law on which the plaintiffs had based their claims,
especially Article 3 of the Hague Convention IV of 1907, did not grant individuals a right to
claim compensation directly from a foreign government113.
In April 2002, however, fifteen Chinese men received an award of over US$1.28 million
against the Mitsui Mining Company in the Fukuoka District Court on the grounds that they
had been forcibly taken to Japan to work in the companys coal mines during World War II114.
cc) Claims before U.S. courts
Parallel to attempts to bring their claims to national courts in Germany and Japan, former
slave laborers also sued in U.S. courts.
Against Germany115
The class-action lawsuits were directed not against the German state but rather against
German companies who had used slave labor in World War II. An example is the case
Burger-Fischer et al. v. Degussa AG and Lichtman et al. v. Siemens AG116, in which plaintiffs
sought damages from the German companies Degussa and Siemens, relying on customary
international law and German law.
The court found that the defendants actions had violated customary international law. In
addition, the court referred to authoritative German scholars having provided declarations
establishing that defendants alleged conduct violated German civil law in effect at the time
they engaged in that conduct.
The Court then rejected the argument that the claims against German companies were
typical claims of individuals against private entities. The Court pointed to the fact that the
action at hand was but one of many cases where German corporations were sued before U.S.
courts at the time. Viewed in their entirety, the Court went on, plaintiffs were in fact inviting
U.S. courts to try their hands at refashioning the reparations agreements which the United
States and other World War II combatants117. The question whether Germany had lived up to
its obligation to adequately compensate victims of Nazi oppression, the Court concluded, was
a political question118 which it must decline to determine:

113

See the references in H. Kasutani, Japan, 2 Yearbook of International Humanitarian Law (1999), pp. 389390; M. Igarashi, Post- War Compensation Cases, Japanese Courts and International Law, 43 The Japanese
Annual of International Law (2000), p. 45 at p. 47.
114
Victims of Germ Warfare Protest over Japanese Court Ruling, Peoples Daily, 28 August 2002.
115
See A. Ramasastry, Corporate Complicity: From Nuremberg to Rangoon, An Examination of Forced Labor
Cases and Their Impact on the Liability of Multinational Corporations, 20 Berkeley Journal of International
Law (2002), p. 91 at pp. 119- 127; D.L. Christopher, Jus Cogens, Reparation Agreements, and Holocaust Slave
Labor Litigation, 31 Law and Policy in International Business (2000), p. 1227 at pp. 1230 et seq.
116
Burger-Fischer et al. v. Degussa AG and Lichtman et al. v. Siemens AG, 65 F. Supp. 2d 248 (D.N.J. 1999).
For discussion of the case see K. C. Ryf, Burger- Fischer v. Degussa AG: U.S. Courts allow Siemens and
Degussa to Profit from Holocaust Slave Labor, 33 Case Western Reserve Journal of International Law (2001),
pp. 155-178.
117
Similarly K. Doehring, Reparationen fr Kriegsschden, in K. Doehring/B.J. Fehn/H.G. Hockerts (eds.),
Jahrhundertschuld,
Jahrhundertshne:
Reparationen,
Wiedergutmachung,
Entschdigung
fr
nationalsozialistisches Kriegs- und Verfolgungsunrecht (2001), p. 9 at p. 41.
118
On the political question doctrine see Judge Adams majority opinion for a Three-Judge District Court,
Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa.. 1972), affd, 411 U.S. 911, 93 S. Ct. 1545, 36 L. Ed. 2d 304 (1973);
Justice Brennan in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); K. C. Ryf, BurgerFischer v. Degussa AG: U.S. Courts allow Siemens and Degussa to Profit from Holocaust Slave Labor, 33 Case
Western Reserve Journal of International Law (2001), p. 155 at pp. 172- 174.

23

Major policy determinations are implicated in the determination of the size and
in the allocation of reparations. They are not the subject of judicial discretion.
For a court now, in the light of the diplomatic history of the last fifty-five years,
to structure a reparations scheme would be to express the ultimate lack of respect
for the executive branch which conducted negotiations on behalf of the United
States and for the Senate which ratified the various treaties which emanated from
these negotiations119.
What is more, the Court found, that it could not possibly find a fair solution to the claim:
Were the court to undertake to fashion appropriate reparations for the plaintiffs
in the present case, it would lack any standards to apply. By what conceivable
standard could a single court arrive at a fair allocation of resources among all the
deserving groups? By what practical means could a single court acquire the
information needed to fashion such a standard? This was a task which the
nations involved sought to perform as they negotiated the Potsdam Agreement,
the Paris Agreement, the Restitution Agreement and the 2+4 Treaty. It would be
presumptuous for this court to attempt to do a better job120.

Despite the dismissal of these claims, a large number of other cases with uncertain
outcomes were still pending in other courts. At the same time, political pressure on Germany
grew. In 1999, the Government of Germany and a group of 65 German corporations agreed to
commit some $ 5 billion Euros121 to a fund designed to compensate those forced to work for
German corporations during the Nazi area. The German Federal Republic law on the Creation
of a Foundation, Remembrance, Responsibility and Future, entered into force on August 12,
2000122. The U.S. Government in turn issued a Statement of Interest in which it advised
U.S. courts not to allow individual claims for reparations. This Statement is not binding, but
there is an expectation that courts will nevertheless act accordingly123.
119

Burger-Fischer et al. v. Degussa AG and Lichtman et al. v. Siemens AG, 65 F. Supp. 2d 248, 284 (D.N.J.
1999).
120
Burger-Fischer et al. v. Degussa AG and Lichtman et al. v. Siemens AG, 65 F. Supp. 2d 248, 284 (D.N.J.
1999); see also Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 810 (D.C. Cir. 1984)
(Bork, J., concurring); Leo Handel v. Artukovic, 601 F. Supp. 1421 (CD Cal. 1985).
121
The sum at the time was 10 billion Deutsche Mark, See A. Ramasastry, Corporate Complicity: From
Nuremberg to Rangoon, An Examination of Forced Labor Cases and Their Impact on the Liability of
Multinational Corporations, 20 Berkeley Journal of International Law (2002), p. 91 at p. 121; K. Heilig, From
the Luxembourg Agreement to Today: Representing a People, 20 Berkeley Journal of International Law
(2002), p. 176 at p. 190; M.A. Ratner, Settlement of Nazi- era Litigation through the Executive and Judicial
Branch, 20 Berkeley Journal of International Law (2002), p. 212 at p. 229.
122
Federal Law on the Establishment of a Foundation Responsibility, Remembrance and Future, German
Federal Law Gazette (BGBl.) Vol. 2000-I, p. 1263, amended on 4 August, 2001, German Federal Law Gazette
(BGBl.) Vol. 2001-I, p. 2036, available in English at http://www.stiftungsinitiative.de/eindex.html (last visited
March 2004). For a thorough analysis see: R. Bank, The New Programs for Payments to Victims of National
Socialist Injustice, 44 German Yearbook of International Law (2001), p. 307 at pp. 314 et seq. A similar
example is the French Spoliation Fund.
123
Large-scale settlements have been made with a number of financial institutions, see E.-C. Gillard,
Reparations for violations of international humanitarian law, 85 International Review of the Red Cross (2003),
p. 529, footnote 54: In July 1999, Barclays Bank, having been sued before a US District Court along with
various other banks with branches, operations or predecessors in France during the Second World War by
families of Jewish customers in France who had lost their assets during the Nazi occupation, agreed to the
Barclays French Bank Settlement which provided for the establishment of a US$3,612,500 fund to compensate
the victims. (District Court, Eastern District, New York, Barclays French Bank Settlement case, Settlement
Agreement, 8 July 1999). In 2000, J. P. Morgan agreed to settle compensation claims by the establishment of a
settlement fund of US$2,750,000 to compensate Jewish victims of the Holocaust whose bank accounts had been

24

Against Japan
Claims before U.S. courts against Japanese companies were triggered by a 1999
California law which allowed prisoners of war to sue private corporations for the work they
were forced to perform under inhumane conditions. Japan was a major target of this
legislation; in fact, its drafters expressed their irritation about the rejection of lawsuits against
the Japanese government filed before Japanese courts. As the lawsuits in California
multiplied, they were consolidated and transferred to federal court were they were grouped
with other claims and eventually bundled into a class action suit that involved twenty-five
thousand claimants124. In September 2000, a U.S. District Court dismissed the claims on the
grounds that the 1951 Peace Treaty with Japan subsumed all individual claims for
mistreatment, including those against corporations125. In 2001, the same Court decided in a
parallel case that the California law violated the federal prerogative to make decisions
regarding foreign relations since it opened de facto a way to pursue reparation claims126.
c) Comfort women
The Japanese government was also confronted with legal actions of the so-called
comfort women127. This term refers to the about two hundred thousand women who lived in

seized in France during the Second World War (District Court, Eastern District, New York, J. P. Morgan French
Bank Settlement case, Settlement Agreement, 29 September 2000). While the previous settlements related to
unlawful and discriminatory seizures of private property during the conflict, the settlement in the Holocaust
Victims Assets case in 2000 concerned the dormant bank accounts of persons who had become the victims of
violations of international humanitarian law and genocide. There was no allegation that the banks had committed
a violation of international humanitarian law; instead it was a question of re-establishment of title to the
accounts. In this case a US District Court approved a class-action Settlement Agreement between Holocaust
victims and Swiss banks. The Agreement set up a US$1.25 billion fund for victims and released, subject to a few
exceptions, the Swiss Confederation, the Swiss National Bank, all other Swiss banks, and other members of
Swiss industry from any further claims. (District Court, Eastern District, New York, Holocaust Victims Assets
case, Memorandum and Order, 26 July 2000; Final Order and Judgement approving the Settlement Agreement, 9
August 2000.); see also P. van der Auweraert, Holocaust Reparation Claims Fifty Years After: The Swiss
Banks Litigation, 71 Nordic Journal of International Law (2002), p. 557 at pp. 559 et seq; M.J. Bazyler, The
Holocaust Restitution Movement in Comparative Perspective, 20 Berkeley Journal of International Law (2002),
p. 11 at pp. 14- 19; R.P. Alford, The Claims Resolution Tribunal and Holocaust Claims against Swiss Banks, 20
Berkeley Journal of International Law (2002), pp. 250- 281.
124
For the foregoing see L. Hein, War Compensation: Claims against the Japanese Government and Japanese
Corporations for War Crimes, in J. Torpey (ed.), Politics and the Past: On Repairing Historical Injustices
(2003), p. 127 at pp. 138-139; A. Ramasastry, Corporate Complicity: From Nuremberg to Rangoon, An
Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations, 20
Berkeley Journal of International Law (2002), p. 91 at pp. 127- 130.
125
In re World War II Era Japanese Forced Labor Litigation, 114 F. Supp. 2nd 939 (N.D.Cal. 2000). For
discussion of the case see C.P. Meade, From Shanghai to Globocourt: An Analysis of the Comfort Womens
Defeat in Hwang v. Japan, 35 Vanderbilt Journal of Transnational Law (2002), p. 211 at pp. 228- 231.
126
In re World War II Era Japanese Forced Labor Litigation, 164 F. Supp. 2nd 1160 (N.D.Cal. 2001). The
decision was upheld by the U.S. Court of Appeals for the 9th Circuit, Deutsch v. Turner Corp., Hochtief et al.,
Judgment
of
21
January
2003,
No.
00-56673,
available
at
http://caselaw.lp.findlaw.com/data2/circs/9th/0056673p.pdf (last visited in March 2004).
127
For further details see International Commission of Jurists (ed.), Comfort Women: An Unfinished Ordeal
(1994); Report by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika
Coomaraswamy, on the mission to the Democratic Peoples Republic of Korea, the Republic of Korea and Japan
on the issue of military sexual slavery in wartime (UN Doc. E/CN.4/1996/53/Add.1, 4 January 1996); Final
report of the Special Rapporteur, Ms. Gay McDougall, on systematic rape, sexual slavery and slavery-like
practices during armed conflicts, including internal armed conflict (E/CN.4/Sub.2/1998/13, 12 August 1998).

25

territories occupied by Japan during World War II, mostly China, Korea and the Philippines,
and who had been forced into sexual slavery by Japanese forces128.
aa) Claims before Courts in Japan
In a number of cases before Japanese courts plaintiffs demanded an apology129 from the
Japanese government and compensation. All the claims based on customary international law
and Article 3 of the Hague Convention (IV) of 1907 have so far been rejected130. Only one
decision in 1998 awarded damages to Korean comfort women on the basis of a constitutional
duty to apologize and compensate for the harm done under Japanese occupation131. However,
this verdict was overturned on appeal132.
In these cases, it seems especially bitter that the claimants frequently failed on the
ground that their countries and Japan had in the meantime sought to improve their relationship
by renouncing individual claims of citizens against the other state. Comfort women often
had not been in the position to make their claims public, held back by feelings of shame and
degradation. Apparently, some countries have meanwhile begun to compensate the comfort
women who are their own nationals133. As it has been stated in a war reparations report after
World War II: Presumably the State is under no general obligation to pay compensation in
respect of war damage. A different matter is that it has been deemed fair and natural that the
State carries out some compensation system with a view of levelling, so far as it is
practicable, damage and loss sustained by part of the population.134
bb) Claims before Courts in the U.S.

128

About three quarters of them died as a result of their sexual exploitation, A. Cairns, Coming to Terms with
the Past, in J. Torpey (ed.), Politics and the Past: On Repairing Historical Injustices (2003), p. 63 at p. 73. For
historical background see C. M. Argibay, Speech- Sexual Slavery and the Comfort Women of Word War II,
21 Berkeley Journal of International Law (2003), p. 375 at pp. 376- 379; see also L.Lee, The Right of Victims
of War to Compnesation, in R.St.J. Macdonald (ed.), Essays in Honour of Wang Tieya (1993), p. 490.
129
The Japanese Government had maintained until about a decade ago that the women had been voluntarily
recruited by a private enterprise. Only the discovery of archival material in 1991 proving that the brothels where
the women were held had been operated by the Japanese Army, brought this claim to a collapse, A. Cairns,
Coming to Terms with the Past, in J. Torpey (ed.), Politics and the Past: On Repairing Historical Injustices
(2003), p. 63 at p. 73.
130
For references see H. Kasutani/S. Iwamoto, Japan, 3 Yearbook of International Humanitarian Law (2000),
p. 543; H. Kasutani, Japan, 2 Yearbook of International Humanitarian Law (1999), pp. 389-390; M. Igarashi,
Post- War Compensation Cases, Japanese Courts and International Law, 43 The Japanese Annual of
International Law (2000), p. 45 at p. 47.
131
The Court referred mainly to the failure of the legislature to comply with its constitutional duty to enact
compensatory laws, Shimonoseki Branch of the Yamaguchi Prefectural Court, Kanpu Case, Judgment of 27
April 1998, Translation in 8 Pacific Rim Law and Policy Journal (1999), pp.47-61. See M. Igarashi, Post- War
Compensation Cases, Japanese Courts and International Law, 43 The Japanese Annual of International Law
(2000), p. 45 at pp. 54 et seq.
132
Hiroshima High Court, Judgment of 29 March 2001. See C.P. Meade, From Shanghai to Globocourt: An
Analysis of the Comfort Womens Defeat in Hwang v. Japan, 35 Vanderbilt Journal of Transnational Law
(2002), p. 211 at p. 237.
133
For South Korea see International Herald Tribune, 22 April 1998, p. 6.
134
Royal Norwegian Ministry of Social Affairs, War Victims in Norway. Measures of Compensation and Relief
(Oslo March 1949), p. 4.

26

Comfort women also tried to sue Japan before U.S. courts. In Hwang Geum Joo, et al.
v. Japan, however, the District Court for the District of Columbia dismissed the action in
2001 for reasons of state immunity135. The Court of Appeals affirmed this decision136.
d) Japanese Germ Warfare
In August 2002, the Tokyo District Court rejected a claim for compensation brought by
about 100 Chinese victims of Japanese germ warfare in China during World War II. The
Court admitted that Japan waged germ warfare in China during World War II, recognizing
that the damage inflicted by germ warfare was terrible and tremendous, and the now-defunct
Japanese army could not be spared from the judgment that its act of war was inhumane.
Nevertheless, the responsibility of the state had already been settled under international law,
the Court held, and argued further that individuals did not have the right to demand
compensation from a state with which they had been at war137.
8. The ILC Draft Articles on State Responsibility
The Draft Articles on State Responsibility,adopted in 2001 by the International Law
Commission, 138 do not include rights of individuals in the secondary rights regime. This
confirms the view that while it is a well-established general principle of international law on
the inter-state level that every violation of international law gives rise to a duty to make
reparations139, there is no equally established rule in the relationship between states and
individuals. The ILC draft only contains a clause in Article 33 (2) which stipulates that the
Articles are without prejudice to any right, arising from the international responsibility of a
State, which may accrue directly to any person or entity other than a State. In the
commentaries, the ILC states:
In cases where the primary obligation is owed to a non-State entity, it may be
that some procedure is available whereby that entity can invoke the
responsibility on its own account and without the intermediation of any State.
This is true, for example, under human rights treaties which provide a right of
petition to a court or some other body for individuals affected. [...] The Articles
do not deal with the possibility of the invocation of responsibility by persons or
entities other than States, and paragraph 2 makes this clear. It will be a matter
for the particular primary rule to determine whether and to what extent persons

135

Hwang Geum Joo, et al. v. Japan, 172 F.Supp. 2d 52 (D.D.C. 2001). For an analysis of the case see C.P.
Meade, From Shanghai to Globocourt: An Analysis of the Comfort Womens Defeat in Hwang v. Japan, 35
Vanderbilt Journal of Transnational Law (2002), p. 211 at pp. 270- 279.
136
Hwang Geum Joo, et al. v. Japan, 332 F.3d 679 (D.C. Cir. 2003).
137
Victims of Germ Warfare Protest over Japanese Court Ruling, Peoples Daily, 28 August 2002.
138
See generally on the ILC Draft Articles and reparations D. Shelton, Righting Wrongs: Reparations in the
Articles on State Responsibility, 96 American Journal of International Law 2002, p. 833; M. Sassli, State
Responsibility for Violations of International Humanitarian Law, 84 International Review of the Red Cross
(2002), p. 401.
139
Article 1 of the Draft articles on Responsibility of States for internationally wrongful acts, adopted by the
International Law Commission at its fifty-third session (2001), Report of the International Law Commission on
the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No.
10 (A/56/10), chp.IV.E.1, p. 43.

27

or entities other than States are entitled to invoke responsibility on their own
account. Paragraph 2 merely recognizes the possibility140.
Neither can the victim expect much help from the the erga omnes clause in Article 48 (1)
(b) of the Draft Articles according to which all states, and not only the injured state, may
invoke a violation if the obligation breached is owed to the international community as a
whole. This clause is especially applicable to violations of human rights and humanitarian
law141. Nevertheless, while this principle may be regarded as well established in the light of
several decisions of the International Court of Justice142, the concept of states as guardians of
the rights of foreign peoples raises serious doubts with regard to its effectiveness. As
Christian Tomuschat has pointed out:
To espouse the cause of foreign citizens in a foreign country, however, is
always a discretionary decision which even a strong state is normally extremely
reluctant to take. In other words, the system for the reparation of human rights
violations as conceived of by the ILC is hardly workable. If the aggrieved victim
himself had a remedy at its disposal it would gain strength and effectiveness. As
it stands, it holds more promise than it can actually deliver143.
9. Recent work of the Human Rights Commission, Resolution 44/2002
The United Nations Commission on Human Rights has made an increasing effort in
recent years to develop the rights of victims of gross violations of human rights to reparation.
In 1993, the former Special Rapporteur of the Sub-Committee on Prevention and
Discrimination and Protection of Minorities, Theo van Boven, presented a study concerning
the right to restitution, compensation and rehabilitation for victims of gross violations of
human rights and fundamental freedoms144. This study contained a set of Basic Principles
and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights
and International Humanitarian Law (the Van Boven Principles). The UNCHR has ever
since worked on finalizing these Basic Principles through a series of consultations with
governments and organizations as well as through a follow-up study performed by the first
independent expert and later Special Rapporteur, Cherif Bassiouni. Bassiouni submitted his
final report which includes revised Basic Priciples and Guidelines on the right to a remedy

140

Commentaries to the draft articles on Responsibility of States for internationally wrongful acts, adopted by
the International Law Commission at its fifty-third session (2001), Report of the International Law Commission
on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement
No. 10 (A/56/10), chp.IV.E.2, pp. 234 et seq.
141
Commentaries, p. 322.
142
ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February
1970, I.C.J. Reports 1970, p. 3 at p. 32; Case Concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections,
Judgement of 11 July 1996, I.C.J. Reports 1996, p. 595 at p. 616, para. 31.
143
C. Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position
under General International Law, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the
Individual (1999), p. 1 at p. 6.
144
The right to Restitution, Compensation and Rehabilitation for victims of gross violations of human rights and
fundamental freedoms, Final Report of the Special Rapporteur Mr. Theo van Boven, UN Doc.
E/CN.4/Sub.2/1993/8, 2 July 1993. For a detailed discussion of the principles see: F. H. Paolillo, On Unfulfilled
Duties: The Obligation to Make Reparation in Cases of Violation of Human Rights, in: V. Gtz/ P. Selmer/ R.
Wolfrum (eds.), Liber amicorum Gnther Jaenicke, Zum 85. Geburtstag (1998), pp. 291- 311.

28

and reparation for victims of violation of International Human Rights and Humanitarian Law
in 2000145. The Commission has continued to finalize the Basic Principles146.
According to the Principles, victims should be entitled to access to justice, reparation for
harm suffered, and access to factual information concerning the violations147. To achieve this
aim, the Principles call foremost upon states to enact domestic legislation148. It should also be
mentioned that the Principles do not determine which primary rules victims enjoy that may
ensure a victims right to a remedy149. Principle 1 only defines the primary rights as being
international human rights and humanitarian law norms that are, inter alia: (a) contained in
treaties to which it is a State party; (b) found in customary international law; or (c)
incorporated in its domestic law.150 While the resolutions of the Commission on Human
Rights on the issue151 identifies a number of human rights instruments, there is no reference to
primary rights derived from humanitarian law. There is also no definition of the terms
violation or International Humanitarian Law as their specific content and meaning are
likely to evolve over time152.
10. Ad-hoc Criminal Tribunals and the International Criminal Court
Victims of grave violations of international humanitarian law can obtain compensation
from the newly established International Criminal Court. Its predecessors, the ad-hoc tribunals
for the former Yugoslavia and Rwanda, only carried out their work without prejudice to the
right of victims to seek, through appropriate means, compensation for damages incurred as a
result of violations of international humanitarian law153. Despite to restore rightful owners to
their property154, Rule 106 of the Rules of Procedure and Evidence of both of these tribunals
provided that the victim must turn to a national court or other competent body for
compensation155. Needless to say that this road often leads nowhere156.
145

The right to Restitution, Compensation and Rehabilitation for victims of gross violations of human rights and
fundamental freedoms, Final Report of the Special Rapporteur Mr. M. Cherif Bassiouni, UN Doc.
E/CN.4/2000/62, 18 January 2000.
146
See for example UN Doc. E/CN.4/2000/62, 18 January 2000.
147
Principle 11.
148
Principles 8(d) and 10 (a).
149
L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review
of the Red Cross (2003), p. 497 at p. 505, footnote 30.
150
The right to Restitution, Compensation and Rehabilitation for victims of gross violations of human rights and
fundamental freedoms, Final Report of the Special Rapporteur Mr. M. Cherif Bassiouni, UN Doc.
E/CN.4/2000/62, January 18, 2000, p. 6/7.
151
See for example Commission on Human Rights Resolutions (UN Docs.) E/CN.4/2003/34, 27 February 2003;
E/CN.4/2002/44, 15 March 2002; E/CN.4/2000/41, 25 February 2000.
152
The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and
fundamental freedoms, Final report of the Special Rapporteur, Mr. M. Cherif Bassiouni, UN Doc.
E/CN.4/2000/62, 18 January 2000, para. 9.
153
UN Security Council Resolution 827 (1993), 25 May 1993.
154
Article 24 (3) of the Courts Statutes, Rule 105 of the Courts Rules of Evidence and Procedure. See also
Article 19 of the Statute of the Special Court for Sierra Leone (2002).
155
Similarly Article 105 of the Rules of Procedure and Evidence for the Special Court for Sierra Leone, UN
Doc. S/2000/915 (2000) as amended on 16 January 2002. Judges at the Tribunal for Rwanda, followed by their
colleagues at the Tribunal for Yugoslavia, had at one point in time in 2000 decided that they would approach the
Security Council and request an amendment of the Statute so that they could adjudicate on compensation for
victims. Later, they partly changed their mind and, while remaining supportive of the idea of victims
compensation, found that this task should not rest with the tribunals as it would greatly hinder their proper
functioning, see S. Vandeginste, Victims of Genocide, Crimes against Humanity, and War Crimes in Rwanda:
The Legal and Institutional Framework of Their Right to Reparation, in J. Torpey (ed.), Politics and the Past:

29

In an attempt to give victims more of the assistance they deserve, Article 75 of the Rome
Statute of the International Criminal Court states:
Article 75 Reparations to victims
1. The Court shall establish principles relating to reparations to, or in respect of,
victims, including restitution, compensation and rehabilitation. On this basis, in
its decision the Court may, either upon request or on its own motion in
exceptional circumstances, determine the scope and extent of any damage, loss
and injury to, or in respect of, victims and will state the principles on which it is
acting.
2. The Court may make an order directly against a convicted person specifying
appropriate reparations to, or in respect of, victims, including restitution,
compensation and rehabilitation. Where appropriate, the Court may order that
the award for reparations be made through the Trust Fund provided for in
article 79.
3. Before making an order under this article, the Court may invite and shall take
account of representations from or on behalf of the convicted person, victims,
other interested persons or interested States.
[...]
5. A State Party shall give effect to a decision under this article as if the
provisions of article 109 were applicable to this article.
6. Nothing in this article shall be interpreted as prejudicing the rights of victims
under national or international law.157
Article 79 provides for the establishment of a trust fund for the benefit of the victims of
crimes within the jurisdiction of the Court and their families. The fund is established by
decision of the Assembly of States Parties and fed inter alia by money and other property
collected by fines and forfeitures as ordered by the Court.
A serious impediment to an effective remedy for war victims is that the Court can only
decide on a compensation for victims when a criminal case has been brought before it, which
is within the exclusive discretion of the Prosecutor. Victims cannot initiate criminal
proceedings. On the positive side, victims have the possibility to appeal an order for
reparations of the Court under Article 75158.
III. Systematic Account of Issues

On Repairing Historical Injustices (2003), p. 249 at p. 253; also C. Ferstman, The Reparation Regime of the
International Criminal Court: Practical Considerations, 15 Leiden Journal of International Law (2002), p. 667
at pp. 670- 673.
156
At least, Rule 106 of the Rules of Procedure and Evidence provides that the criminal verdict of the
international tribunal is binding for the national court.
157
See also Rules 94-99 of the Courts Rules of Procedure and Evidence. The Rules do not solve the potential
problem numerous applications for reparation may cause for the duration of trials, see C. Jorda/J. de Hemptinne,
The status and role of the victim, in A. Cassese/P. Gaeta/J.R.W.D. Jones (eds), The Rome Statute of the
International Criminal Court: A Commentary (2002), pp. 1388-1389. For the drafting history of Art. 75 see C. P.
J. Muttukumaru, Reparation to Victims, in: R. Y. Lee (ed.), The International Criminal Court. The Making of
the Rome Statute (1999), pp. 262- 270; M. Frulli, When Are States Liable Towards Individuals for Serious
Violations of Humanitarian Law? The Markovic Case 1 Journal of International Criminal Justice (2003), p.
406 at p.425.
158
See Article 82 (4) of the Rome Statute. See also Rules 150-153 of the Courts Rules of Procedure and
Evidence.

30

The following chapter seeks to give a systematic account of the various legal questions a
war victim would currently in claiming reparation for injury.

1. Legal Basis for the Claim


a) International Law
The right to claim reparations is a secondary right. It only comes to life with the
violation of a corresponding primary right. Without such a primary right there can be no
secondary right to a remedy159. But even if it one is able to discern more and more primary
rights of individuals in the areas of humanitarian law160 and human rights law, there is still a
long way left to go. As the Permanent Court of International Justice held in the Peter
Pzmny University case, there is no general rule that a primary right always comes with a
procedural capacity to bring an action in the case of a violation of such primary right: It is
scarcely necessary to point out that the capacity to possess civil rights does not necessarily
imply the capacity to exercise those rights oneself161. Given that there is little evidence in
international customary law for an individual right to a remedy for violations of human rights
law and international humanitarian law, it still remains true that such a right must be provided
for by an express provision162. As has been demonstrated throughout the historical account
above, the lack of express provisions for which it is generally accepted that they give
individuals a right of action under international law is one of the main reasons why individual
reparation claims fail.
One remark de lege ferenda: one should not make grave breaches or gross violations
of international humanitarian law or human rights the sufficient but necessary trigger for an
individuals right to claim compensation. Just as every violation of these laws would trigger a
159

L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review
of the Red Cross (2003), p. 497 at p. 503; C. Tomuschat, Individual Reparation Claims in Instances of Grave
Human Rights Violations: The Position under General International Law, in A. Randelzhofer/C. Tomuschat
(eds.), State Responsibility and the Individual (1999), p. 1 at p. 7.
160
See L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International
Review of the Red Cross (2003), p. 497 at pp. 503 et seq; M. Sassli, State responsiblity for violations of
international humanitarian law, 84 International Review of the Red Cross (2002), p. 401 at p.419; J.K. Kleffner,
Improving Compliance with International Humanitarian Law Through the Establishment of an Individual
Complaints Procedure, 15 Leiden Journal of International Law (2002), p. 237 at p. 244.
161
PCIJ, Appeal from a Judgment of the Hungaro-Czechoslovakl Mixed Arbitral Tribunal, Judgment of 15
December 1933, P.C.I.J. Series A/B, No. 61, 1933; A. Randelzhofer, The Legal Position of the Individual under
Present International Law, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual
(1999), p. 231 at p. 234; R. Provost, International Human Rights and Humanitarian Law (2002), p. 43; similarly
C. Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position
under General International Law, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the
Individual (1999), p. 1 at p. 13; R. McCorquodale, The Individual and the International Legal System, in M.D.
Evans (ed), International Law (2003), p. 299 at p. 307.
162
R. Provost, International Human Rights and Humanitarian Law (2002), p. 44; S. Kadelbach,
Staatenverantwortlichkeit fr Angriffskriege und Verbrechen gegen die Menschlichkeit, in Deutsche
Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p.63 at p. 81; International Law Commission, Commentaries to the Draft Articles
on State Responsibility, Article 33 (2), p. 234. See also ICJ, Case concerning East Timor (Portugal v. Australia),
Judgment of 30 June 1995, I.C.J. Reports 1995, p. 90, para. 29, where the Court held that a primary right, no
matter what its weight and character, cannot by itself establish jurisdiction.

31

responsibility between states163, so should it be in the relationship between states and


individuals. Terms like grave breaches should be confined to the purpose it has within the
Geneva Conventions and the Additional Protocols, i.e. to the criminal liability of individuals
for violations of international humanitarian law164. This is not to say that practical reasons,
such as a states incapacity to pay full compensation to every single victim, may dictate inter
alia a restriction of claims and a preferential treatment of those who suffered most. However,
this would only concern necessary compromises in enforcement and leave the general
obligation to compensate victims of any violation of human rights or international
humanitarian law untouched165.
Even those who see in norms like Article 3 of the Hague Convention IV of 1907 and
Article 91 of the Additional Protocol I of 1977 to the 1949 Geneva Conventions a support for
the idea of an individual claim for reparation by war victims166 will find it difficult to deal
with internal armed conflicts167. There is no provision for compensation in Common Article 3
of the Geneva Conventions or their Additional Protocol II. Furthermore, there are hardly any
cases where parties to an internal armed conflict have recognized an obligation to pay
reparations to war victims or made such reparations in practice168. Where a national legal
system permits civil actions by victims of internal conflicts against the perpetrators of the
injuries, the results are often disappointingsobering. The problems include delays in a large
number of cases, lack of uniformity in the resulting jurisprudence, and awards that are
unenforceable against insolvent defendants169.

163

PCIJ, Factory at Chorzw (Germany v. Poland), Merits, Judgment of 13 September 1928, P.C.I.J. Series A,
No. 17, 1928, p. 29. Article 3 of the Hague Convention IV of 1907 and Article 91 of the Additional Protocol I of
1977 to the Geneva Conventions of 1949 also do not require a certain gravity of the violation. Article 1 of the
Draft Articles on Responsibility of States for internationally wrongful acts adopted by the International Law
Commission at its fifty- third session (2001), Report of the International Law Commission on the work of its
Fifty- third session, Official Records of the General Assembly, Fifty- sixth session, Supplement No. 10 (A/56/10),
chp.IV.E.1, p. 43.
164
Articles 146-148 of the Geneva Convention IV of 1949; Articles 11 (4), 75 (7) lit. b, 85, 86 of the Additional
Protocol I of 1977.
165
Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), p. 101. See also F.
Grnfeld/I. Westendorp, Summary of the Discussions at the Seminar on the Right to Restitution, Compensation
and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Report of the
Seminar, Special No. 12 (11-15 March 1992), p. 5 at p. 5: a distinction may be made between the principle of
entitlement to reparation resulting from each and every human rights violation and the practical approach
requiring some delimitation to cases and practices of gross and systematic violations of human rights.
166
See F. Kalshoven, State Responsibility for Warlike Acts of the Armed Forces: From Article 3 of the Hague
Convention IV of 1907 to Article 91 of Additional Protocol I and Beyond, 40 International and Comparativ
Quarterly (1991), p. 827 at pp. 830, 847; R. Pisillo- Mazzeschi, Reparation Claims by Individuals for State
Breaches of Humanitarian Law and Human Rights: An Overview, 1 Journal of International Criminal Justice
(2003), p. 339 at p. 341; M. Frulli, When Are States Liable Towards Individuals for Serious Violations of
Humanitarian Law? The Markovic Case 1 Journal of International Criminal Justice (2003), p. 406 at p.417 and
p. 426.
167
See E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of
the Red Cross (2003), p. 529 at p. 534.
168
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at pp. 534-535 who refers to the example of the Comprehensive Agreement on Respect
for Human Rights and International Humanitarian Law in the Philippines of 16 March 1998,
www.incore.ulst.ac.uk/cds/agreements/pdf/phil8.pdf, that was concluded between the Government of the
Philippines and the National Democratic Front of the Philippines and expressively provided for indemnification
of victims of humanitarian law violations by both parties.
169
See the account of the case of Rwanda by S. Vandeginste, Victims of Genocide, Crimes against Humanity,
and War Crimes in Rwanda: The Legal and Institutional Framework of Their Right to Reparation, in J. Torpey
(ed.), Politics and the Past: On Repairing Historical Injustices (2003), p. 249 at p. 253.

32

Whenever individuals rely on provisions in treaties that require implementation through


municipal law, courts are likely to reject claims based on these treaties on the grounds that
they are not self-executing170.
b) National Laws
Another set of instruments victims can rely on, and it seems somewhat more
successfully, are national laws that rest on universal civil jurisdiction. Prominent examples are
the U.S. Alien Tort Claims Act (ATCA) and the Torture Victims Protection Act (TVPA). To
be clear from the outset, however, both of these statutes can only establish jurisdiction against
a non-state entity. When claimants sue a foreign state under either of these acts, jurisdiction
will be governed by the Foreign Sovereign Immunity Act171.
Alien Tort Claims Act
The Alien Tort Claims Act confers upon U.S. district courts original jurisdiction of any
civil action by an alien for a tort only, committed in violation of the law of nations or a Treaty
of the United States172. Although already enacted in 1789 as part of the first Judiciary Act,
the Alien Tort Claims Act received little attention for almost two centuries. There is no
uniform opinion about the effects of this provision among U.S. courts. The controversy
mainly boils down to the question whether jurisdiction is only depending on the plaintiff
establishing a violation of his primary rights under international law or if, in addition, he must
also establish a right to sue under the law of nations, apart from the language of the Alien
Tort Claims Act. In its landmark decision Filartiga v. Pea Irala, the U.S. Court of Appeals
for the Second Circuit took the first view173. In Tel-Oren v. Libyan Arab Republic, Judge Bork
in rejecting Filartiga argued strongly for the second, narrower interpretation of the Alien Tort
Claims Act174.
It was again the Second Circuits turn when the cases Kadic v. Karadzic175 and Doe I
and II v. Karadzic came up for a decision. It declared that the law of nations generally does
170

See the following examples from U.S. jurisprudence: Hamdi v. Rumsfeld, 316 F.3d 450, 468 (4th Cir. 2003)
(1949 Geneva Convention Relative to the Treatment of Prisoners of Wars not self-executing); Leo Handel et al.
v. Andrija Artukovic, 601 F. Supp. 1421 (C.D.C. 1985) (Article 3 Hague Convention IV of 1907 and 1929
Geneva Convention Relative to the Treatment of Prisoners of Wars not self-executing); Huynh Thi Anh v. Levi,
586 F.2d 625, 629 (6th Cir. 1978) (1949 Geneva Convention Relative to the Protection of Civilian Persons in
Time of War not self-executing); Goldstar (Panama) v. United States, 967 F.2d 965, 968 (4th Cir. 1992);
Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979). Critique e.g. by J. Paust,
Judicial Power to determine the status and rights of persons detained without a trial, 44 Harvard International
Law Journal 2003, p. 515, L. Zegveld, Remedies for victims of violations of international humanitarian law,
85 International Review of the Red Cross (2003), p. 497 at p. 510.
171
Amerada Hess v. Argentine Republic, 102 L. Ed. 2d 818 (1989), = 81 International Legal Materials (1989), p.
658; Saudi Arabia v. Nelson, 123 L. Ed. 2d47, 61 (1993).
172
28 U.S.C. 1350; for a detailed discussion concerning the ATCA and related cases see: M. Rau, Domestic
Adjudication of International Human Rights Abuses and the Doctrine of Forum Non Conveniens, The Decision
of the U.S Court of Appeals for the Second Circuit in Ken Wiwa v. Royal Dutch Petroleum Company, 61
Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht (2001), pp. 177- 197; B. Stephens/ M. Ratner,
International Human Rights Litigation in U.S. Courts (1996), pp. 7- 23.
173
Filartiga v. Pea Irala, 630 F.2d 876 (2nd Cir. 1980) (civil action brought by the family of a Paraguayan
national who had been tortured to death against the perpetrator while he was in the U.S.).
174
Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d at 774 (D.C. Cir. 1984) (dismissing for
lack of subject matter jurisdiction claims brought against the Palestine Liberation Organization, the Libyan
government, and other entities for terrorist activities allegedly in violation of the law of nations).
175
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), rehg denied, 74 F.3d 377 (2d Cir. 1996), cert. denied, 518
U.S. 1005, 116 S. Ct. 2524, 135 L. Ed. 2d 1048 (1995) = 34 International Legal Materials (1995), p. 1592 (civil
action for compensation by a group of Bosnian nationals against former Bosnian Serb leader Radovan Karadzic

33

not create private causes of action to remedy its violations, but leaves to each nation the task
of defining the remedies that are available for international law violations176. In that spirit,
the Court upheld Filartiga in saying that as the Alien Tort Claims Act
appears to provide a remedy for the appellants allegations of violations
related to genocide, war crimes, and official torture [...], their causes of action
are statutorily authorized, and, as in Filartiga, we need not rule definitively on
whether any causes of action not specifically authorized by statute may be
implied by international law standards as incorporated into United States
law177.
The Ninth Circuit concurred with the Second Circuit and stated with unmitigated clarity
that the Act not only provides federal courts with subject matter jurisdiction, but also creates
a cause of action for an alleged violation of the law of nations178 and that nothing more than
a violation of the law of nations is required to invoke section 1350179.

Torture Victim Protection Act


The Torture Victim Protection Act was enacted in 1992. It codified the court ruling in
Filartiga and further extended that cause of action to plaintiffs who are U.S. citizens. Like for
the ACTA, U.S. courts have held that the Torture Victim Protection Act effectively creates a
remedy against individuals who subjected persons abroad, be they foreigners or U.S. citizens,
to torture or extrajudicial killing180. The scope of the Alien Tort Act remains undiminished by
enactment of the Torture Victim Protection Act. It has, as the U.S. Congress stated, other
important uses, because claims based on torture and summary executions do not exhaust the
list of actions that may appropriately be covered by the Alien Tort Act. The Alien Tort Act
should remain intact to permit suits based on other norms that already exist or may ripen in
the future into rules of customary international law181.
Foreign Sovereign Immunity Act

for crimes committed during the conflict in the former Yugoslavia, including genocide, rape, forced prostitution,
torture, summary executions, and disappearances).
176
Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), the Court quoted Judge Edwards in Tel-Oren v. Libyan
Arab Republic, 726 F.2d at 778 (D.C. Cir. 1984).
177
Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995). The U.S. courts rendered two default judgments against
Karadzic over $ 745 million and $ 4.5 billion respectively. Not only the size of the awards makes it obvious that
they are of a rather symbolic value.
178
Humberto Alvarez-Machain v. United States, 331 F.3d 604 at 612 (9th Cir. Cal. 2003); Hilao v. Estate of
Marcos (In re Estate of Marcos, Human Rights Litig.) ("Marcos II"), 25 F.3d 1467, 1475 (9th Cir. 1994).
179
Hilao v. Estate of Marcos (In re Estate of Marcos, Human Rights Litig.) ("Marcos II"), 25 F.3d 1467, 1475
(9th Cir. 1994) (quoting Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring)). Further cases under the ACTA:
Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) (affirming judgment under ATCA against former Ethiopian
official for torture and cruel, inhuman, and degrading treatment); Xuncax v. Gramajo, 886 F. Supp. 162 (D.
Mass. 1995) (deeming torture, summary execution, disappearance, and arbitrary detention by Guatemalan
military to be actionable violations under the ATCA); Mushikiwabo v. Barayagwiza, No. 94 CIV. 3267 (JSM),
1996 WL 164496 (S.D.N.Y. Apr. 9, 1996) (Successful claim for compensation against former director of
Rwandan Ministry of Foreign Affairs Barayagwiza in relation to the Rwandan genocide).
180
L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review
of the Red Cross (2003), p. 497 at p. 512; G.B. Born, International Civil Litigation in United States Courts:
Commentary & Materials, (3rd ed. 1996), pp. 37-39; S. R. Ratner/ J. S. Abrams, Accountability for Human
Rights Atrocities in International Law, Beyond the Nuremberg Legacy (2nd ed. 2001), p. 243.
181
Kadic v. Karadzic, 70 F.3d 232, 241 (2d Cir. 1995) quoting H.R. Rep. No. 367, 102d Cong., 2d Sess., at 4
(1991), reprinted in 1992 U.S.C.C.A.N. 84, 86.

34

Finally, the U.S. Foreign Sovereign Immunity Act (FSIA) of 1976, under certain
circumstances, also grants federal district courts concurrent civil jurisdiction over civil actions
against foreign states and related entities182. The question of state immunity will be addressed
in more detail below.
Exclusions
When the victim bases its claim on national tort laws, courts might consider them not
applicable for damages arising out of armed conflicts. German courts, for example, have
consistently held that the application of the German law of torts is suspended in wartime,
saying that it was systematically inconceivable that parties to the conflict would be liable to
the millions of victims based on tort law183. The protection through national laws in time of
war is held to be replaced by the international laws of war184.
2. Exclusion or Subsumption by Peace Treaties
Individual claims for reparation can be expressly excluded by peace treaties or subsumed
by them185. There is no automatic subsumption or exclusion186, but it can and will often
follow from the wording of the treaties187. Lump-sum reparation payments after wars were
often meant to cover both the damages suffered by states and their nationals. The state
receiving the funds was responsible for their distribution to victims188.
The competence of states to rule onthe claims of its citizens, can be explained under
the traditional doctrinal argument that these claims are in fact not claims of the citizens but
rather claims of the state itself189. Alternatively, it can also be based on the competence of
every state under international law to dispose of property and assets of its citizens freely
182

L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review
of the Red Cross (2003), p. 497 at p. 512; G.B. Born, International Civil Litigation in United States Courts:
Commentary & Materials, 3rd ed. (1996), p. 35. See Letelier v. Chile, 488 F. Supp. 665 (D.D.C. 1980); Siderman
v. Argentina, 965 F.2d 699, (9th Cir. 1992), cert. denied 507 U.S. 1017 (1993).
183
German Supreme Appellate Court (BGH), Distomo, BGH III ZR 245/98, 26 June 2003; along the same
lines also Regional Administrative Court of Appeals Mnster (OVG Mnster), Neue Juristische Wochenschrift
(1998), p. 2302 at p. 2305; B. Kempen, Der Fall Distomo: griechische Reparationsforderungen gegen die
Bundesrepublik Deutschland, H.-J. Cremer (ed.), Tradition und Weltoffenheit des Rechts Festschrift fr
Helmut Steinberger (2002), p. 179 at p. 190.
184
Regional Administrative Court of Appeals Mnster (OVG Mnster), Neue Juristische Wochenschrift (1998),
p. 2302 at p. 2305; K Ipsen, Individualschutz im Vlkerrecht, in Ipsen (ed.), Vlkerrecht (4th ed., 1999), 48
no. 55.
185
For state practice ranging from the Peace of Westphalia (1648) to modern days see A. Randelzhofer/O. Drr,
Entschdigung fr Zwangsarbeit? Zum Problem individueller Entschdigungsansprche von auslndischen
Zwangsarbeitern whrend des Zweiten Weltkriegs gegen die Bundesrepublik Deutschland (1994), pp. 79-88.
186
German Federal Constitutional Court, Decision of 13 May 1996, Neue Juristische Wochenschrift 1996, p.
2717 at p. 2719.
187
See B. He, Kriegsentschdigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht, in Deutsche
Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 107 at pp. 114-117, 121.
188
E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at p. 535; M. Eichhorst, Rechtsprobleme der United Nations Compensation
Commission (2002), p. 106.
189
ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February
1970, I.C.J. Reports 1970, p. 3 at p. 46; A. Randelzhofer/O. Drr, Entschdigung fr Zwangsarbeit? Zum
Problem individueller Entschdigungsansprche von auslndischen Zwangsarbeitern whrend des Zweiten
Weltkriegs gegen die Bundesrepublik Deutschland (1994), p. 76.

35

which includes the competence to surrender their claims with respect to third parties190. As
Arnold D. McNair has stated: It appears that international law treats a State as being invested
for international purposes with complete power to affect by treaty the private rights of its
nationals, whether by disposing of their property, surrendering their claims, changing their
nationality or otherwise191. This has largely remained the general opinion into modern times,
the following quote from the U.S. Restatement of Foreign Relations Law being only one of
many examples:
[A] states claim for violations that cause injury to rights or interests of private
persons is a claim of the state and is under the state's control. The state may
determine what individual remedies to pursue, may abandon the claim, or settle
it. The state may merge the claim with other claims with a view to an en bloc
settlement. The claimant state may set these claims off against claims against it
by the respondent state. Any reparation is, in principle, for the violation of the
obligation to the state, and any payment made is to the state192.
National courts have also regularly upheld clauses surrendering individual claims in
peace treaties193.
The competence of states to dispose of individual claims of their citizens in the peace
treaties after a war can serve a number of important functions. First, it helps to make the peace
treaty the final word on the past and to open a new chapter of history. More than two centuries
ago, U.S. Supreme Court Justice Chase addressed this point in reference to the Treaty of 1783
that concluded the American Revolutionary War:
I apprehend that the treaty of peace abolishes the subject of the war, and that
after peace is concluded, neither the matter in dispute, nor the conduct of either
party, during the war, can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the government, or people of either,
during the war, are buried in oblivion; and all those things are implied by the
very treaty of peace; and therefore not necessary to be expressed. Hence it
follows, that the restitution of, or compensation for, British property confiscated,
or extinguished, during the war, by any of the United States, could only be
provided for by the treaty of peace; and if there had been no provision,
respecting these subjects, in the treaty, they could not be agitated after the treaty,
by the British government, much less by her subjects in courts of justice194.
Secondly, the Versailles Treaty after World War I has become a symbol for the negative
implications that can arise out of obligations to pay reparations that went beyond the
capacities of the defeated state. In subsequent peace treaties, parties have sought to restrict
reparations to an amount that was a compromise between the justified claims of those who
190

A. Randelzhofer/O. Drr, Entschdigung fr Zwangsarbeit? Zum Problem individueller


Entschdigungsansprche von auslndischen Zwangsarbeitern whrend des Zweiten Weltkriegs gegen die
Bundesrepublik Deutschland (1994), pp. 77-78.
191
A.D. McNair, Legal Effects of War (3d ed. 1948), p. 391. This competence has been widely recognized by
national courts, see the references in A. Randelzhofer/O. Drr, Entschdigung fr Zwangsarbeit? Zum Problem
individueller Entschdigungsansprche von auslndischen Zwangsarbeitern whrend des Zweiten Weltkriegs
gegen die Bundesrepublik Deutschland (1994), pp. 90-91.
192
The American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States
(1987), 902 cmt. (h)(I).
193
See B. He, Kriegsentschdigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht, in Deutsche
Gesellschaft fr Vlkerrecht (ed.), Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der
Welthandelsordnung (2003), p. 107 at p. 123 with references to German and U.S. courts.
194
Ware v. Hylton, 3 U.S. 199, 230; 1 L. Ed. 568 (1796).

36

had suffered in the war and the abilities of the defeated state to compensate for damage
inflicted195. Giving individuals the unrestricted right to pursue individual claims could throw
this carefully crafted compromise out of balance196. Of course, this reasoning does not apply
to cases where the state responsible for the injuries and damages provides for individual
claims of victims in its domestic legal order. It can also be set aside where it is clear that
individual claims will not bring uncontrollable harm to the respondent states finances or
adequate finances are otherwise assured. An example for such a case is the United Nations
Compensation Commission where the damages awarded to individual claimants were in part
paid for through the proceeds of Iraqi oil exports.
3. Forum for litigation

Another important hurdle for victims is finding a forum that grants them a locus standi
and is at the same time competent to provide them effective relief. The following outline
identifies available fora both on international and national levels.
a) International Humanitarian Fact-Finding Commission
Individuals cannot find hope of a complete remedy in the International Humanitarian
Fact-Finding Commission197 which was established in 1991 based on Article 90 of the
Protocol Additional I to the Geneva Conventions of 1949. First of all, the International
Humanitarian Fact-Finding Commission is not mandated to perform a judicial function or to
make legally-binding decisions. Moreover, as the ICRC commentary to the relevant provision
states: [t]here is no doubt that only States are competent to submit a request for enquiry to
the Commission, to the exclusion of private individuals, representative bodies acting on
behalf of the population, or organizations of any nature.198 Consequently, all the
195

The Potsdam Agreement, 2 August 1945, Section IV: Reparations from Germany, stipulated that the German
people should make good the harm caused by the Nazi Regime to the greatest extent possible. The subsequent
Transition Agreement included a provision in Ch. 4(3) according to which The capacity to pay of the Federal
Republic may be taken into consideration in determining the time and method of compensation payments [...]
and in providing adequate funds. Security Council Resolution 687 set a barrier for the funds Iraq had to
contribute to the compensation of victims at 30% of the nations oil exports. See also the treaties referred to by
M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), pp. 108-109. The issue
discussed here does not only arise in inter-state conflicts, but even more pronounced in cases of internal massscale violations of human rights such as the Apartheid regime. Every compensation given to victims would have
to be borne by the community of taxpayers in that country, including the beneficiaries of the compensation
themselves. In such cases, much can also be accomplished by non-pecuniary moral reparation through an
investigation of the past, exposure of traumatic experiences. Prominent examples are the truth and reconciliation
commissions in Argentina, Chile, El Salvador, South Africa, and Guatemala, see C. Tomuschat, Individual
Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International
Law, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the Individual (1999), p. 1 at pp. 19-21;
C.J. Niebur Eisnaugle, An International Truth Commission: Utilizing Restorative Justice as an Alternative to
Retribution, 36 Vanderbilt Journal of Transnational Law (2003), p. 209 at pp. 221- 230.
196
The reasoning here does not intend to cast a doubt on the full state responsibility for every single violation
committed. It only makes a case that may often be the necessity to resort to collective settlements on the level of
enforcement. See M. Eichhorst, Rechtsprobleme der United Nations Compensation Commission (2002), p. 110.
197
The statutory name of this body is International Fact-Finding Commission, but the Commission has added
Humanitarian to its name in order to avoid confusion with fact-finding commissions in other areas of law.
198
ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949
(1987), para. 3618. Liesbeth Zegveld, on the other hand, makes the argument that the Commission could in fact
agree to act upon an individual complaint because Article 90 (2)(c)(i) Protocol Additional I merely requires an

37

Commission can do in the case of an individual complaint or claim for reparations is to


transmit it to the respondent party, thereby also transferring some of the moral weight of the
Commission. While such a procedure might actually be successful in some cases, it does not
give victims any degree of legal certainty and cannot be considered a remedy.
b) International courts and tribunals
Before international courts and tribunals, individual claimants face primarily the obstacle
of jus standi.
aa) International Court of Justice
At the International Court of Justice, claims brought by individuals are doomed to fail,
because only states are permitted to submit claims199 - which, in fact, they might do under the
concept of diplomatic protection.
bb) International Criminal Court
While victims are not formally parties to the proceedings before the International
Criminal Court, they can nevertheless be involved in various stages of the trial. Regarding the
question of reparation, victims can request a Court order awarding reparations under Article
75 of the Rome Statute and Article 94 of the Courts Rules of Procedure and Evidence. Before
making its order, the Court is required to take account of representations from or on behalf of
victims200. Victims have the right to appeal a Court order under Article 75201.
cc) Regional Human Rights Courts and Commissions
Before regional human rights courts, such as the European Court of Human Rights and
the Inter-American Court of Human Rights202, individuals can bring claims on their own
allegation that international humanitarian law is seriously violated.; Comments on the Presentation of Prof.
Frits Kalshoven, 15 Humanitres Vlkerrecht (2002) p. 216 at p. 217.
199
Article 34 (1) Statute of the International Court of Justice: Only states may be parties in cases before the
Court. The Namibian tribe of the Herero consequently was rejected with his attempt to bring a reparation action
against Germany before the Court for a massacre committed by German troops in the former German colony of
German Southwest Africa in 1904 which killed many thousand Hereros, see International Court dashes
Hereros
reparation
hopes,
The
Namibian,
September
8,
1999,
http://www.namibian.com.na/Netstories/September99/dashes.htm. In 2001, the Hereros have filed a lawsuit
against German companies at the Superior Court of the District of Columbia, The Herero Peoples Reparations
Corporation v. Deutsche Bank AG et al., No. 01-0004447, claiming $ 2 billion. The case was dismissed on July
31, 2003 by the U.S. District Court for the District of Columbia, Civ. No. 01-01868, which held that the
plaintiffs had failed to show a cause of action.
200
Article 75 (3) Statute of the International Criminal Court: Before making an order under this article, the
Court may invite and shall take account of representations from or on behalf of the convicted person, victims,
other interested persons or interested States.
201
Article 82 (4) Statute of the International Criminal Court: A legal representative of the victims, the convicted
person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the
order for reparations, as provided in the Rules of Procedure and Evidence.
202
Individual claims were also admissible under the Central American Court of Justice which was established in
1908 between Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua. The Court lasted until 1918, but

38

behalf. The problem of proceedings before these courts will be mainly a jurisdictional one.
Their competence ratione personae and ratione materiae is established and limited by
specific human rights treaties.
In a first step, the victim must be able to establish that it can ratione personae invoke the
provisions of the treaty in question. This is not always obvious in the case of war victims. For
example, when civilian victims of an accidental NATO air attack in Kosovo tried to sue
Germany inter alia on the basis of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, the Bonn Regional Court denied claimants the right to
invoke the Convention as they were not within Germanys jurisdiction as required by Article
1 of the Convention203.
Even if this obstacle is surmounted, the claimant still faces the issue of the lex specialis
character of the laws applicable in wartime and the fact that the competence of human rights
bodies is generally limited to the enforcement of the human rights entrenched in the relevant
conventions204. As tempting as the possibility of combining the individual remedies under
human rights law with the substantive protections of international humanitarian law may
seem205, there are jurisdictional barriers that are difficult to overcome as judicial practice
shows206.
(1) Inter-American Commission and Court of Human Rights
The Inter-American Commission and Court of Human Rights have gone far in
eradicating the distinction between human rights law and international humanitarian law. In
the Tablada case, the Commission explained why in its view it was necessary in war-related
cases to apply directly rules of international humanitarian law or to inform its interpretations
of relevant provisions of the American Convention by reference to these rules207. It reasoned
that the American Convention on Human Rights was not designed to be applied in situations
of war and did not contain rules governing the means and methods of warfare. Still, so the
Commission went on, leaving citizens without protection in times of war was not acceptable.
The Commission argued that
both Common Article 3 [of the 1949 Geneva Conventions] and Article 4 of
the American Convention protect the right to life and, thus, prohibit, inter alia,
summary executions in all circumstances. Claims alleging arbitrary
deprivations of the right to life attributable to State agents are clearly within
none of five individual claims was successful see A. Randelzhofer, The Legal Position of the Individual under
Present International Law, in: A. Randelzhofer/ C. Tomuschat, (eds.), State Responsibility and the Individual
(1999), p. 231 at pp. 238 et seq.
203
Bonn Regional Court, Decision of 10 December
2003, No. 1 O 361/02 available at
http://www.justiz.nrw.de/RB/nrwe/lgs/bonn/lg_bonn/j2003/1_O_361_02urteil20031210.html.
204
R. Provost, International Human Rights and Humanitarian Law (2002), p.332.
205
Such a suggestion has been made inter alia by F. J. Hampson, Using International Human Rights Machinery
to Enforce the International Law of Armed Conflict, 31 Revue de droit pnal militaire et de droit de la guerre
(1992), pp. 119-142.
206
See further on this issue L. Zegveld, Remedies for victims of violations of international humanitarian law,
85 International Review of the Red Cross (2003), p. 497 at p. 515-520; Ch. M. Cerna, Human rights in armed
conflict: Implementation of international humanitarian law norms by regional intergovernmental human rights
bodies, in F. Kalshoven/Y. Sandoz (eds.), Implementation of International Humanitarian Law (1989), pp. 3167; R. Provost, International Human Rights and Humanitarian Law (2002), pp. 332-337.
207
IACHR Report No. 55/97, Case No. 11.137, Argentina, OEA/Ser/L/V/II.97, Doc. 38, 30 October 1997, para.
157. For a detailed discussion of this case see L Zegveld, The Inter-American Commission on Human Rights
and international humanitarian law: A comment on the Tablada-Case, International Review of the Red Cross
(1998), pp. 505-511.

39

the Commissions jurisdiction. But the Commissions ability to resolve


claimed violations of this non-derogable right arising out of an armed conflict
may not be possible in many cases by reference to Article 4 of the American
Convention alone. This is because the American Convention contains no rules
that either define or distinguish civilians from combatants and other military
targets, much less, specify when a civilian can be lawfully attacked or when
civilian casualties are a lawful consequence of military operations. Therefore,
the Commission must necessarily look to and apply definitional standards and
relevant rules of humanitarian law as sources of authoritative guidance in its
resolution of this and other kinds of claims alleging violations of the American
Convention in combat situations. To do otherwise would mean that the
Commission would have to decline to exercise its jurisdiction in many cases
involving indiscriminate attacks by State agents resulting in a considerable
number of civilian casualties. Such a result would be manifestly absurd in
light of the underlying object and purposes of both the American Convention
and humanitarian law treaties208.
The Commission also declared that it must determine whether the rights affected by a
states derogation from the American Convention under Article 27 are similarly guaranteed
under applicable humanitarian law treaties. If the Commission then found that the rights in
question are not subject to suspension under these humanitarian law instruments, it would
conclude that these derogation measures are in violation of the states obligations under both
the American Convention and the humanitarian law treaties concerned209.
Finally, the Commission pointed to a substantive overlap of humanitarian and human
rights law:
Indeed, the provisions of Common Article 3 are essentially pure human
rights law. Thus, as a practical matter, application of Common Article 3 by a
State Party to the American Convention involved in internal hostilities
imposes no additional burdens on, or disadvantages its armed forces vis--vis
dissident groups. This is because Article 3 basically requires the state to do, in
large measure, what it is already legally obliged to do under the American
Convention210.
The Inter-American Court of Human Rights examined the Commissions view in the Las
Palmeras case. In this case, the Commission had held Colombia in violation of the right to
life under both Article 4 of the American Convention and Common Article 3 of the Geneva
Conventions. Colombia challenged the competence of the Commission and the Court to apply
Common Article 3 of the Geneva Conventions in preliminary objections. The Court ruled that
both bodies were not competent to apply international humanitarian law directly, but could
interpret the Geneva Conventions wherever this proved to be necessary in interpreting a rule

208

IACHR Report No. 55/97, Case No. 11.137, Argentina, OEA/Ser/L/V/II.97, Doc. 38, 30 October 1997, para.
161.
209
IACHR Report No. 55/97, Case No. 11.137, Argentina, OEA/Ser/L/V/II.97, Doc. 38, 30 October 1997, para.
170.
210
IACHR Report No. 55/97, Case No. 11.137, Argentina, OEA/Ser/L/V/II.97, Doc. 38, 30 October 1997, para.
158, footnote 19. For the sake of completeness, it should be noted that the Commission further supported its
argument by making reference to Articles 25 (right to an effective remedy) and 29b (most-favorable-to-theindividual-clause) as well as to an advisory opinion of the Inter-American Court of Human Rights stating that
the Commission had in the past rightly invoked other treaties concerning the protection of human rights in the
American states; see ibid., paras. 157-171.

40

of the American Convention211. In the Bamaca Velasquez case the Court gave a more detailed
account of how it intended to work the zones of overlap between the American Convention
and international humanitarian law:
Although the Court lacks competence to declare that a State is internationally
responsible for the violation of international treaties that do not grant it such
competence, it can observe that certain acts or omissions that violate human
rights, pursuant to the treaties that they do have competence to apply, also
violate other international instruments for the protection of the individual,
such as the 1949 Geneva Conventions and, in particular, common Article 3.
Indeed, there is a similarity between the content of Article 3, common to the
1949 Geneva Conventions, and the provisions of the American Convention
and other international instruments regarding non-derogable human rights
(such as the right to life and the right not to be submitted to torture or cruel,
inhuman or degrading treatment). This Court has already indicated in the Las
Palmeras Case (2000), that the relevant provisions of the Geneva Conventions
may be taken into consideration as elements for the interpretation of the
American Convention212.
Some member states of the Convention continue to insist on the strict separation of
human rights law and international humanitarian law. The U.S. government consequently
rejected a request by the Inter-American Commission of 12 March 2002 to have the legal
status of detainees at Guantnamo Bay determined by a competent tribunal arguing that the
Commission did not have the competence to apply the international humanitarian law
instruments to which the Commission had made reference213.
(2) European Court of Human Rights
The European Court of Human Rights and the now defunct European Commission of
Human Rights, though reluctant to refer to international humanitarian law explicitly, still use
it as a tool for analysis214.
(3) African Commission on Human and Peoples Rights
In the African human rights system, there is as yet no court that could issue binding
rulings. The African Commission on Human and Peoples Rights has stated its view that
human rights law and international humanitarian law have always shared the common

211

I/A Court H.R., Las Palmeras Case, Series C No. 67, Preliminary Objections, Judgment of 4 February 2000,
paras. 32-34. For a detailed discussion see: F. Martin, Application du droit international humanitaire par la Cour
interamricaine des droits de lhomme, 83 International Review of the Red Cross (2001), pp. 1037- 1065; R.
Wilson/ J. Perlin, The Inter- American Human Rights System: Activities from late 2000 through October
2002, 18 American University International Law Review (2003), p. 651 at pp. 686 et seq.
212
I/A Court H.R., Bmaca Velsquez Case, Series C No. 70, Judgment of November 25, 2000, paras. 205-209.
213
See American Society of International Law, United States: Response of the United States to Request for
Precautionary Measures - Detainees in Guantanamo Bay, Cuba (April 12, 2002), International Law in Brief,
June 4, 2002, http://www.asil.org/ilib/ilib0508.htm#r2.
214
L. Zegveld, Remedies for victims of violations of international humanitarian law, 85 International Review
of the Red Cross (2003), p. 497 at p. 519; F. Martin, Application du droit international humanitaire par la Cour
interamricaine des droits de lhomme, 83 International Review of the Red Cross (2001), p. 1037 at p. 1060.

41

purpose of protecting human beings and their fundamental rights215 and sees a need for
[e]mphasizing the importance of propagating the principle of human rights law as well as
IHL216. In pursuit of this effort, the African Commission declared in its resolution on Sudan
that Sudan is legally bound to comply with international human rights and humanitarian law
treaties217.
Encouraged by this practice, Christopher Greenwood suggested in his Report on
International Humanitarian Law presented at the Centennial of the 1899 Hague Peace
Conference that monitoring mechanisms of human rights conventions could be used in an
indirect way to assist ensuring compliance with the law applicable in internal conflict218.
However, given the independence of the judicial bodies, it will only be possible to use them
in the way Greenwood proposed by giving them the clear competence and task to apply and
monitor international humanitarian law. Anything less will always make this remedy
unpredictable for victims of war.
c) Domestic or Foreign Courts
When a victim sues a foreign state allegedly responsible for a harm before a court
outside the respondent state, be it domestic or foreign, it will most likely find its claim
rejected on grounds of state immunity. State immunity as a concept follows from the principle
of state sovereignty and the maxim par in parem non habet jurisdictionem, which implies that
legal persons of equal standing cannot have their disputes settled in courts of either one of
them219.
State immunity is not an absolute concept but subject to generally recognized exceptions
which are to some extent codified in national laws and multilateral treaties. These exceptions,
however, do not apply in the case at hand. They follow mostly from the theory that
distinguishes between acts jure imperii, acts of state, and acts jure gestionis, where the state
acts like any other private commercial actor. Only for acts jure gestionis can exceptions be
considered to be generally accepted whereas this is not the case for acts jure imperii220, which
form the sole subject of this study.
Lately, the argument has increasingly been made that even in cases of acts jure imperii
immunity should be lifted if the acts in question violate norms of jus cogens. The underlying
rationale of this argument is that jus cogens stands above all other principles of international

215

Seventh Annual Activity Report of the African Commission on Human and Peoples Rights, 1993-94,
ACHPR/RPT/7th, Annex XI.
216
Seventh Annual Activity Report of the African Commission on Human and Peoples Rights, 1993-94,
ACHPR/RPT/7th, Annex X.
217
Resolution on Sudan, Eighth Annual Activity Report of the African Commission on Human and Peoples
Rights, 1994-95, ACHPR/RPT/8th, Annex VII.
218
C. Greenwood, International Humanitarian Law, in F. Kalshoven (ed.), The Centennial of the First
International Peace Conference: Reports and Conclusions (2000), p. 240.
219
I. Brownlie, Principles of Public International Law (5th ed. 1998), p. 327; P. Daillier/ A. Pellet, Droit
International Public (7e d. 2002), p. 451; P-M. Dupuy, Droit International Public (6e d. 2002), p. 119.
220
C. Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position
under General International Law, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the
Individual (1999), p. 1 at p. 15; similary H. Fox, The Law of State Immunity (2002), p. 22, p. 316; P. Daillier/ A.
Pellet, Droit International Public (7e d. 2002), pp. 452 et seq; P-M. Dupuy, Droit International Public (6e d.
2002), p. 119.

42

law, including that of sovereign immunity. In spite of enjoying significant support221, this
theory cannot yet be considered to be generally accepted222.
One must also be cautious to generalize from the findings of criminal courts, national
and international, on the issue of immunity. The cases decided in these fora concerned the
question whether an individual was protected by immunity because of his function in a states
government. While it might be easily acceptable to say that the same reasons which exclude
an individuals immunity under criminal law should also exclude this individuals protection
against civil suits, it is not permissible to readily discard state immunity by a simple extension
of that logic223. As the law stands now, the immunity of individuals has been punctured for
many cases of serious violations of human rights and humanitarian law, but no respective
general exceptions to state immunity have been accepted so far224 as the International Court of
Justice has very recently stated in the Congo v. Belgium case:
The Court has carefully examined State practice, including national legislation
and those few decisions of national higher courts, such as the House of Lords or
the French Court of Cassation. It has been unable to deduce from this practice
that there exists under customary international law any form of exception to the
rule according immunity from criminal jurisdiction and inviolability to
incumbent Ministers for Foreign Affairs, where they are suspected of having
committed war crimes or crimes against humanity. The Court has also examined
the rules concerning the immunity or criminal responsibility of persons having
an official capacity contained in the legal instruments creating international
criminal tribunals, and which are specifically applicable to the latter (see Charter
of the International Military Tribunal of Nuremberg, Art. 7; Charter of the
International Military Tribunal of Tokyo, Art. 6; Statute of the International
Criminal Tribunal for the former Yugoslavia, Art. 7, para. 2; Statute of the
International Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the
International Criminal Court, Art. 27). It finds that these rules likewise do not
enable it to conclude that any such an exception exists in customary international
law in regard to national courts. Finally, none of the decisions of the Nuremberg
and Tokyo international military tribunals, or of the International Criminal
Tribunal for the former Yugoslavia, cited by Belgium deal with the question of
the immunities of incumbent Ministers for Foreign Affairs before national courts
where they are accused of having committed war crimes or crimes against

221

See e.g. the references in J. Brhmer, State Immunity and the Violation of Human Rights (1997), pp. 189-195;
J. F. Flauss, Droit des immunits et protection international des droits de lhomme, 10 Revue suisse de droit
international et de droit euopen (2000), p. 299 at pp. 300- 315.
222
See European Court of Human Rights, Al-Adsani v. The United Kingdom, No. 35763/97, 21 November 2001,
ECHR 2001-XI, para. 61; Court of Appeal (UK): Opinion of Lord Justice Stuart Smith, Al-Adsani v. The United
Kingdom , 12 March 1996, cited in ECHR, Al-Adsani v. The United Kingdom, para. 18; Supreme Court (U.S.):
Argentine Republic v. Amerada Hess Shipping Corporation; Siderman de Blake v. Republic of Argentina; H.
Fox, The Law of State Immunity (2002), p. 316, p. 322 and p. 537; M.N. Shaw, International Law (5th ed. 2003),
p. 638; A. Gattani, To What Extent are State Immunity and Non- Justiciability Major Hurdles to Individuals
Claims for War Damages?, 1 Journal of International Criminal Justice (2003), p. 348 at p. 354.
223
K. Doehring, Reparationen fr Kriegsschden, in K. Doehring/B.J. Fehn/H.G. Hockerts (eds.),
Jahrhundertschuld,
Jahrhundertshne:
Reparationen,
Wiedergutmachung,
Entschdigung
fr
nationalsozialistisches Kriegs- und Verfolgungsunrecht (2001), p. 9 at pp. 47-49.
224
For a recent and detailed cross-country study of this problem see J. Brhmer, State Immunity and the
Violation of Human Rights (1997); especially for Head of States see H. Fox, The Law of State Immunity (2002),
pp. 421- 449.

43

humanity. The Court accordingly notes that those decisions are in no way at
variance with the findings it has reached above225.
The European Court of Human Rights has made the same assessment in the
Kalogeropoulou case:
les requrants semblent affirmer que le droit international relatif aux crimes
contre lhumanit est si fondamental quil constitue une norme de jus cogens qui
lemporte sur tous les autres principes de droit international, y compris le
principe de limmunit souveraine. Toutefois, la Cour ne juge pas tabli quil
soit dj admis en droit international que les Etats ne peuvent prtendre
limmunit en cas dactions civiles en dommages intrts pour crimes contre
lhumanit qui sont introduites sur le sol dun autre Etat. [...] Cela est au moins
vrai dans la situation du droit international public actuelle, telle que la Cour la
constat dans laffaire Al-Adsani prcite, ce qui nexclut pas un dveloppement
du droit international coutumier dans le futur226.
.
aa) Courts in the United States
In von Dardel v. Union of Soviet Socialist Republics227 the U.S. District Court for the
District of Columbia rendered a default judgment based on the Alien Tort Claims Act against
the U.S.S.R. and held that state immunity must be disregarded where the foreign state
defendant has acted in clear violation of international law228. The U.S.S.R. did not file an
appeal and chose simply to ignore the judgment229.
Similarly, in Amerada Hess Shipping v. Argentine Republic, the U.S. Court of Appeals
for the Second Circuit decided that sovereigns are not immune from suit for their violations
of international law230. On appeal, however, the Supreme Court reversed the judgment and
held that jurisdiction over foreign states was not determined by the Alien Tort Claims Act; the
225

ICJ, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium),
Judgment of 14 February 2002, I.C.J. Reports 2002, para. 59. See also A. Cassese, When may Senior State
Officials be tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 European
Journal of International Law (2002), pp. 853- 875; S. Wirth, Immunity for Core Crimes? The ICJs Judgment
in the Congo v. Belgium Case, 13 European Journal of International Law (2002), pp. 877- 893.
226
European Court of Human Rights, Kalogeropoulou and others v. Greece and Germany, Decision on the
Admissibility,
No.
59021/00,
12
December
2002,
p.
10,
available
at
http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=49&Action=Html&X=302123422&Notice=0&Noticemode
=&RelatedMode=0 (last visited March 2004). See also Al-Adsani v. The United Kingdom, No. 35763/97, 21
November 2001, ECHR 2001-XI, para. 61; United Kingdom: House of Lords, Regina v. Bow Street Stipendiary
Magistrate and Others, ex parte Pinochet Ugarte (No. 3), Judgment of Lord Millet, 24 March 1999 [2000]
Appeal Cases 147, at 278; United States: Joo v. Japan, 2001 WL 1246419 (D.D.C. 2001); Argentine Republic v.
Amerada Hess Shipping Corp., 488 U.S. 428 (1989). For discussions concerning the cases before the European
Court of Human Rights see E. Voyiakis, Access to Court v. State Immunity, 52 International and
Comparative Law Quarterly (2003), pp. 297- 332; A. Orakhelashvili, State Immunity in National and
International Law: Three Recent Cases Before the European Court of Human Rights, 15 Leiden Journal of
International Law (2002), pp. 703- 714.
227
von Dardel v. Union of Soviet Socialist Republics, 623 F.Supp. 246 (U. S. District Court, District of
Columbia, 1985) = 77 International Law Reports (1988), p. 258.
228
von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246, 253 (D.D.C. 1985), = 77 International
Law Reports (1988), p. 258 at p. 265.
229
C. Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position
under General International Law, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the
Individual (1999), p. 1 at p. 16.
230
Amerada Hess Shipping v. Argentine Republic, 830 F.2d, 421, 425 (2nd Cir. 1987); 26 International Legal
Materials (1987), p. 1375 at p. 1380.

44

only statute providing such jurisdiction being the Foreign Sovereign Immunity Act (FSIA)231.
According to the FSIA, which in turn reflects general rules of international law, legal actions
normally do not lie against foreign states in U.S. courts and none of the exceptions applied to
the case in question.
In Hugo Princz v. Federal Republic of Germany232, the plaintiff, a Jewish U.S. national
had lost his family in German concentration camps and had himself been forced to work as a
slave laborer for German corporations. He had sought compensation from Germany under a
German federal statutory compensation scheme233 but his application had been denied
because of late filing. The central question of the case was whether a U.S. court had
jurisdiction to find Germany liable to pay compensation to Princz under German and
international law or whether such jurisdiction would be precluded for reasons of state
immunity. In first instance, the district court decided in favor of the plaintiff and overcame the
hurdle of the Foreign Sovereign Immunity Act by stating:
This Court finds that the Foreign Sovereign Immunity Act has no role to play
where the claims alleged involve undisputed acts of barbarism committed by a
one-time outlaw nation which demonstrated callous disrespect for the humanity
of an American citizen, simply because he was Jewish. The Court cannot permit
such a nation, which at the time these barbaric acts were committed neither
recognized nor respected U.S. or international law, to now block the legitimate
claims of a U.S. citizen by asserting U.S. law to evade its responsibilities.
A government which stands in the shoes of a rogue nation the likes of Nazi
Germany is estopped from asserting U.S. law in this fashion. [...] If Mr. Princzs
citizenship means anything, it must mean that he can seek vindication of his
rights in the courts of this nation. Congress cannot have intended to force Mr.
Princz, an American citizen with scant financial resources, to seek justice in the
courts of the very country which so brutally violated his dignity and humanity
and subsequently has indicated no willingness to recognize his just claim. [...] To
put it in another way, a United States citizen, who was a victim of the Holocaust,
has a constitutional right to proceed in a United States Court against the very
nation that subjected him and his family to the most unspeakable and barbarous
acts known to humankind. [...] What this Court holds today is that under the
circumstances of this case, a nation that does not respect the civil and human
rights of an American citizen is barred from invoking United States law to block
the citizen in his effort to vindicate his rights234.
The verdict of the district court clearly reflects the conflict between an emotional desire
to do material justice to a victim that has nowhere else to turn to, and the difficulties of
finding a legally sound foundation for such a decision. Subsequently, the verdict was reversed

231

Amerada Hess Shipping v. Argentine Republic, 102 L. Ed. 2d 818 (1989), = 81 International Legal Materials
(1989), p. 658.
232
Hugo Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994) Appeal from the U.S. District
Court, District of Columbia, 813 F.Supp 22 (D.D.C. 1992), 33 International Legal Materials (1994), p. 1483.
Petition to the U.S. Supreme Court for a writ of certiorari was denied, 115 S.Ct. 923 (1995).
233
Federal Compensation Law (Bundesentschdigungsgesetz) of 1 October 1953, German Federal Law Gazette
(BGBl.) Vol. 1956-I, p. 559.
234
Hugo Princz v. Federal Republic of Germany, 813 F. Supp. 22, 26 et seq. (D.D.C. 1992).

45

by the U.S. Court of Appeals for the District of Columbia which held that under the Foreign
Sovereign Immunity Act, Germany was immune from the claim235.
The Marcos Case236, in which the former President of the Philippines was faced with
compensation claims for torture, brought additional clarification on the application of the
immunity provision when the defendant is a former organ of a state237. The Court held that the
organ is only protected by state immunity if it did not act outside of its competences. Since
torture was not part of a Presidents competences, the Court qualified the acts as private acts
and not as acts of state. Immunity was denied. Immunity also did not stand in the way of an
award in the case Kadic v. Karadzic where the Court held that the defendant, as Leader of
the Bosnian Serbs, did not enjoy head-of-state immunity, nor was he immune as a UN
invitee to the United States238.
As has already been pointed out above, U.S. courts have also frequently exercised
judicial self-restraint in application of the political question and non justiciability
doctrines239. The former is applicable in situations where a case is intimately related to the
exercise of powers over foreign affairs - a classical domain of the executive branch. The
latter comes into play if legal standards for a just decision are not straightforward.
bb) Courts in the United Kingdom
In the case Al Adsani v. Government of Kuwait and Others240, a British citizen who had
served in the Kuwaiti Air Force claimed to have been subjected to torture by acts attributable
to the State of Kuwait and to threats to life and health in the UK. He sued Kuwait and the
alleged perpetrators for damages in the courts of the United Kingdom. His claim against
Kuwait was rejected by the Court of Appeal. As far as the acts of torture on Kuwaiti territory
were concerned, the Court found that Kuwait was protected by the provisions of the State
Immunity Act 1978 and explicitly rejected the possibility of overriding immunity based on a
violation of jus cogens241. With regard to the threats against the plaintiff which took place
235

Hugo Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. 1994), cert. denied, 513 U.S. 1121, 115 S.
Ct. 923, 130 L. Ed. 2d 803 (1995). There was a subsequent political solution. In the Princz Agreement of
1995, Germany agreed to provide funds for U.S. victims of Nazi persecution.
236
Hilao v. Estate of Marcos (In re Estate of Marcos, Human Rights Litig.) ("Marcos II"), 25 F.3d 1467, 1475
(9th Cir. 1994).
237
See the judgment of the ICJ, Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of
Congo v. Belgium), Judgment of 14 February 2002, I.C.J. Reports 2002, para. 51: The Court would observe at
the outset that in international law it is firmly established that, as also diplomatic and consular agents, certain
holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for
Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.
238
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
239
See Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 810 (D.C. Cir. 1984) (Bork,
J., concurring); Leo Handel v. Artukovic, 601 F. Supp. 1421 (CD Cal. 1985); K. C. Ryf, Burger- Fischer v.
Degussa AG: U.S. Courts allow Siemens and Degussa to Profit from Holocaust Slave Labor, 33 Case Western
Reserve Journal of International Law (2001), p. 155 at pp. 172- 174; B. He, Kriegsentschdigungen aus
kollisionsrechtlicher und rechtsvergleichender Sicht, in Deutsche Gesellschaft fr Vlkerrecht (ed.),
Entschdigung nach bewaffneten Konflikten/Die Konstitutionalisierung der Welthandelsordnung (2003), p. 107
at p. 128 with further references.
240
Al- Adsani v. Government of Kuwait and Others (ex parte), Judgment of the Supreme Court of Judicature,
Court of Appeal (Civil Division) on appeal from the High Court of Justice, 21 January 1994, No. FC3
93/6212/E= 100 International Law Report (1995), p. 465. See also E. Voyiakis, Access to Court v. State
Immunity, 52 International and Comparative Law Quarterly (2003), p. 297 at pp. 303- 307.
241
See the Opinion of Lord Justice Stuart-Smith, cited in European Court of Human Rights, Al-Adsani v. The
United Kingdom, No. 35763/97, 21 November 2001, ECHR 2001-XI, para. 18.

46

while he was in the United Kingdom, the Court saw no sufficient probability that Kuwait
actually bore responsibility for them.
The plaintiff brought his case before the European Court of Human Rights. He
challenged the interpretation of the State Immunity Act by the U.K. Court of Appeal referring,
in particular, to the decision of the House of Lords in Regina v. Bow Street Stipendiary
Magistrate and Others, ex parte Pinochet Ugarte (No. 3)242. In this case, the House of Lords
had held that torture was an international crime and its prohibition had acquired the status of
jus cogens under international law, thereby overruling Pinochets claim that he was protected
from extradition to Spain by virtue of sovereign immunity. However, this proved to be a weak
argument since the House of Lords had explicitly declared that the findings in the Pinochet
case only concerned the immunity ratione materiae from criminal jurisdiction of a former
Head of State, but did not in any way affect the immunity ratione personae of foreign
sovereign states from civil actions in respect of such acts243. Noting this fact and adding that it
was unable to discern in the international instruments, judicial authorities or other materials
before it any firm basis for concluding that, as a matter of international law, a State no longer
enjoys immunity from civil suit in the courts of another State where acts of torture are
alleged244, the Court dismissed the plaintiffs action.
d) Courts of Respondent State
Issues of immunity do of course not come up if the victim takes his claim to a court in
the respondent state. One problem that might arise in some countries, however, is that of the
impartiality of the court and its independence from political pressures. But even when none of
this has to be feared, claims will mostly be rejected for lack of a cause of action. The Distomo
case has already been discussed above. Additional examples are the lawsuits that were filed in
different countries after the NATO air operation Allied Force in Kosovo. In a case before
the German Regional Court of Bonn, a group of Kosovars claimed damages from Germany
for civilian casualties accidentally caused by the bombing of the Varvarin bridge during the
NATO air operations245. The case was somewhat exceptional as the planes that carried out the
attack were U.S. planes. In fact, on the whole, Germanys contribution to Allied airpower was
rather negligible. Plaintiffs argued that it had been a NATO operation and they could
consequently sue every NATO state for damage caused by either one of them246. But the
Court never got to that point. In line with the Distomo decision, the Bonn Court concluded
that the plaintiffs had no cause of action under international or domestic law247.
242

House of Lords, Regina v. Bow Street Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3),
Judgment of 24 March 1999 [2000] Appeal Cases 147.
243
House of Lords, Regina v. Bow Street Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3),
Judgment of Lord Millet, 24 March 1999 [2000] Appeal Cases 147, at 278.
244
European Court of Human Rights, Al-Adsani v. The United Kingdom, No. 35763/97, 21 November 2001,
ECHR 2001-XI, para. 61. It must be stressed, however, that the decision was only taken by nine votes to eight,
reflecting the controversiality of the issue.
245
Bonn Regional Court, Decision of 10 December
2003, No. 1 O 361/02 available at
http://www.justiz.nrw.de/RB/nrwe/lgs/bonn/lg_bonn/j2003/1_O_361_02urteil20031210.html (last visited March
2004).
246
For the applicants memorial see http://www.nato-tribunal.de/varvarin/klage.htm (last visited March 2004).
247
Bonn Regional Court, Decision of 10 December
2003, No. 1 O 361/02 available at
http://www.justiz.nrw.de/RB/nrwe/lgs/bonn/lg_bonn/j2003/1_O_361_02urteil20031210.html (last visited March
2004). Claims brought before Canadian and Dutch courts have similarly been rejected, see Ontario Superior
Court of Justice, Aleksic et.al. v. Tue Attorney General of Canada (01-DV-000583), Judgment of 8 July 2002
and Gerechtshof te Amsterdam, Dedovic et al. v. Kok et al. (759/99 SKG), Judgment of 6 July 2000 (denying the
responsibility of the Dutch State for the actions in question).

47

As a sidenote it should be mentioned that China, whose embassy in Belgrade had been
hit by U.S. warplanes, resulting in civilian casualties and the destruction of the building,
pursued the traditional path of an inter-state claim and was compensated for the damage
caused248.

IV. Conclusions
Looking at the situation in its entirety, one can hardly avoid concluding that, as of today,
only very few possibilities exist where individual war victims can claim reparations for their
suffering. The most complicated situation arises, when the individual victim tries to sue a
foreign state directly.
On the international plane, the possibilities of such victims to initiate claims are remain
to be limited. Before the International Court of Justice, individuals have no direct standing.
Human rights courts do not readily apply humanitarian law, the lex specialis for situations of
armed conflict. On the other hand, there is no international court whose genuine competence
enables it to hear complaints about violations of humanitarian law. The competence of the
International Criminal Court to award damages to victims is a hopeful development in the
right direction, but far from being a solution to the problem. Claims Commissions such as the
United Nations Compensation Commission have operated with considerable success, but
whether their ad-hoc nature equips them as a reliable remedy remains to be seen.
In national courts, victims still face problems of sovereign immunity, the subsumption of
their claims by peace treaties and more generally the lack of a cause of action. Claims against
individual perpetrators are facilitated by national laws, but how likely is it that a milliondollar-award will be enforceable?
Because solutions will not be easily found, maybe it is wise to keep expectations
realistic from the outset. To aim for a system that would provide reparations to all countless
victims in each and every case is considered by many as too much to strive for, not the least
because funding for such an exercise would be difficult to secure249.
It can be expected and it is to be hoped - that there will be a continuing dynamic to
break holes into the wall of state immunity250. Important authorities such as the European
Court of Human Rights have explicitly recognized the possibility that customary international
law might develop in this direction in the future251. The Committee should therefore carefully

248

P. Daillier/ A. Pellet, Droit International Public, p. 800.


E.-C. Gillard, Reparations for violations of international humanitarian law, 85 International Review of the
Red Cross (2003), p. 529 at p. 549 C. Tomuschat, Reparation for Victims of Grave Human Rights Violations,
10 Tulane Journal of International and Comparative Law (2002), p. 157 at p. 177.
250
See for example the proposals elaborated by J. Brhmer, State Immunity and the Violation of Human Rights
(1997), pp. 189-217; and the Hague Appeal for Peace. Draft Additional Protocol to the Geneva Conventions
Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law
(http://www.haguepeace.org); see also J.Kleffner, Improving Compliance with International Humanitarian Law
through the Establishment of an Individuals Complaints Procedure, 15 Leiden Journal of International Law
(2002), p. 237 at 250; and D. Fleck, Humanitarian Protection Against Non-State Actors, in: J.A. Frowein/ K.
Scharioth/ I. Winkelmann/ R. Wolfrum (eds.), Negotiating for Peace. Liber Amicorum Tonio Eitel (2003), p. 69
at 94.
251
European Court of Human Rights, Al-Adsani v. The United Kingdom, No. 35763/97, 21 November 2001,
ECHR 2001-XI, para. 66; Kalogeropoulou and others v. Greece and Germany, Decision on the Admissibility,
No.
59021/00,
12
December
2002,
p.
10,
available
at
249

48

examine this question, but also keep in mind the criticism that A world full of self-appointed
human rights vigilantes is certainly more a trauma than a vision of paradise252. Such an
approach might considerably contribute to the fragmentation of international law, although
one has to to admit that, as it stands today, it is far from being satisfactory for victims either.
A perfect model is not yet in sight. Close attention should, however, be paid to the work
in progress in the UN Commission on Human Rights as it has spent considerable effort
examining the issue and collected valuable responses of national governments to its Draft
Principles.

http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=49&Action=Html&X=302123422&Notice=0&Noticemode
=&RelatedMode=0 (last visited March 2004).
252
C. Tomuschat, Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position
under General International Law, in A. Randelzhofer/C. Tomuschat (eds.), State Responsibility and the
Individual (1999), p. 1 at p. 18.

49