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Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law1

Published online by Cambridge University Press:  17 February 2009

Jann K. Kleffner  and
Liesbeth Zegveld
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Currently, no judicial or quasi-judicial mechanisms exist with the explicit competence to consider complaints of individuals claiming to be victims of violations of international humanitarian law. The International Committee of the Red Cross (ICRC) cannot fulfil this role as it has neither the means, the purpose nor the mandate to make enforceable judicial determinations with regard to claims of individuals alleging to be victims of such violations. Instead, it operates mainly through confidential discussions with governments. Likewise, criminal prosecutions of individual perpetrators before national or international courts, while contributing significantly to improving the implementation of humanitarian law, cannot and should not be the only answer to violations of the law. For one thing, the future International Criminal Court (ICC) will only consider the most serious violations of humanitarian law, leaving numerous other violations uninvestigated. Moreover, criminal prosecutions are concerned with individuals rather than parties to the conflict. The acts that are labelled as international crimes, however, find their basis in the collectivity. Crimes are unlikely to be prevented nor will compliance with their prohibition be significantly improved through criminal prosecution of individuals alone. Similarly, while the ICC may, either upon request or on its own motion, afford reparations to victims of war crimes, these are reparations afforded within the individual responsibility framework of the ICC. The Court may make an order directly against a convicted person rather than against a state or entity.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 3 , December 2000 , pp. 384 - 401
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 2000

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References

4. For example, Art. 8(1) of the ICC Statute provides that the Court shall have jurisdiction in respect of war crimes ‘in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes’.

5. Zegveld, L., Armed Opposition Groups in International Law: the Quest for Accountability (Doctoral thesis, 2000, to be published by Cambridge University Press in 2001) pp. 276–277Google Scholar.

6. Although such reparation does not prejudice ‘the rights of victims under national or international law’; cf., Arts. 75, 79 of the ICC Statute.

7. Cf., Art. 75(2) ICC Statute.

8. The most prominent examples of national regimes of inter-individual claims for violations of international (humanitarian) law are the US Alien Tort Claims Act of 1789 and the Torture Victims Protection Act of 1991. For relevant case law, see Neubauer, R.D., 2 YIHL (1999) pp. 426–428Google Scholar and in the present volume at pp. 610 et seq.

9. Greenwood, C., ‘International Humanitarian Law’, in Kalshoven, F., ed., The Centennial of the First International Peace Conference (The Hague, Kluwer Law International 2000) at pp. 240–241, 251–252Google Scholar.

10. Ibid., at p. 240.

11. Committees competent to receive complaints of individuals are set up under the following human rights treaties: 1965 International Convention on the Elimination of All Forms of Racial Discrimination (Committee on the Elimination of Racial Discrimination); First Optional Protocol to the 1966 International Covenant on Civil and Political Rights (Human Rights Committee); 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Committee against Torture); 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families); Optional Protocol to the Convention on the Elimination of Discrimination against Women, adopted by General Assembly resolution A/54/4 on 6 October 1999 and opened for signature on 10 December 1999 (not yet in force). ‘Commissions’ and/or ‘Courts’ are established in Europe (European Court of Human Rights since the entry into force of the 11th. Protocol), Africa (African Commission on Human and Peoples' Rights until the entry into force of the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights (OAU document OAU/LEG/MIN/AFCHPR/PROT.1 rev.2 (1997)), adopted in June 1998, and Commission and Court on Human and Peoples' Rights thereafter) and America (Inter-American Commission on Human Rights and the Inter-American Court of Human Rights).

12. See on this subject, among many others, Meron, T., ‘On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument’, 77 AJIL (1983) pp. 589–605Google Scholar.

13. Currently, efforts are underway to negotiate an Additional Protocol to create a third emblem. See Z. Meriboute in this volume at pp. 258 et seq. Depending on the outcome, this Protocol may become the Third Protocol. In that case, the Protocol establishing the supervisory organ could be the Fourth Protocol.

14. Currently, a ‘Draft Instrument Establishing an Individual Complaints Procedure for Violations of International Humanitarian Law’ is being distributed for comments. The Draft Instrument is meant as a continuing project. All comments regarding this project are warmly welcomed. These can be submitted to the authors. Contact addresses are provided at the end of the article.

15. IACHR Report No. 55/97, Case No. 11.137, Argentina, OEA/Ser/L/V/II.97, Doc. 38, 30 10 1997, at 44Google Scholar, para. 161 (hereafter, IACHR Report).

16. Support for this argument is found in the Nuclear Weapons Advisory Opinion of the International Court of Justice, which states that ‘whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.’ Legality of the Threat or Use of Nuclear Weapons, para. 25 (Opinion of 8 07 1996), 35 ILM (1996) 809Google Scholar. The Covenant referred to by the Court is the 1966 International Covenant on Civil and Political Rights.

17. The 1966 International Covenant on Civil and Political Rights (ICCPR), for example, allows the States Parties to the Covenant to take measures derogating from their obligations under the Covenant except from Arts. 6, 7, 8 (paras. 1 and 2) 11, 15, 16 and 18 in time of public emergency. To mention just one example, rights of aliens under Art. 13 of the Covenant (providing: ‘An alien lawfully in the territory of a State Party to the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.’) are consequently derogable human rights. International humanitarian law, in contrast, contains detailed rules aimed at the protection of aliens in the territory of a party to the conflict, cf., Arts. 35–46 of the Fourth Geneva Convention.

18. The prohibition of imposing and carrying out the death penalty may serve as an example. Art. 6(5) of the ICCPR only protects persons below the age of 18 and pregnant women from the carrying out of the death penalty. In contrast, several Geneva rules extend such protection to other persons or restrict the right to impose or carry out the death penalty Cf., Arts. 100–101 of the Third Geneva Convention, Arts. 68 and 75 of the Fourth Geneva Convention, Arts. 76(3) and 77(5) of Additional Protocol I, and Art. 6(4) of Additional Protocol II.

19. Humanitarian law has surfaced in the practice of the other human rights bodies. For instance, in an inter-state complaint against Turkey, Cyprus invoked IHL before the European Commission on Human Rights (4 EHRR pp. 482 at 552, 553 (1976) Commission ReportGoogle Scholar). However, the European Commission did not examine this point. See on this subject Cerna, C.M., ‘Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies’, in Kalshoven, F. and Sandoz, Y., eds., Implementation of International Humanitarian Law (Dordrecht, Martinus Nijhoff 1989) pp. 31–67Google Scholar; see for application of humanitarian law by the United Nations, Gasser, H.-P., ‘Ensuring Respect for the Geneva Conventions and Protocols: the Role of Third States and the United Nations’, in Fox, H., and Meyer, M.A., eds., Effecting Compliance (London, British Institute of International and Comparative Law 1993) pp. 15–49Google Scholar.

20. Supra n. 15.

21. For an analysis of the argumentation presented by the Commission, see Zegveld, L., ‘The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case’, 38 IRRC No. 324 (1998) pp. 505–511CrossRefGoogle Scholar.

22. Caso Las Palmeras, Exepciones Preliminares, Sentencia de 04 de Febrero de 2000, Serie C, No. 66.

23. Ibid., para. 43.

24. Ibid., paras. 32 and 33.

25. Op.cit. n. 9.

26. Third Report on the Situation on Human Rights in Colombia, OEA/ser.L/V/II. 102, Doc. 9 rev. 1, at 72, para. 5 (26 February 1999).

27. Ibid., at p. 72, para. 6.

28. Boelaert-Suominen, S., ‘The Yugoslavia Tribunal and the Common Core of Humanitarian Law Applicable to all Armed Conflicts’, 13 Leiden JIL (2000) pp. 619–653CrossRefGoogle Scholar.

29. For instance, in order to be considered a grave breach, an unjustifiable delay in the repatriation of prisoners of war or civilians has to be committed wilfully (Cf., Art. 85(4) (chapeau) and (b)). Other unjustifiable delays in the repatriation therefore fall outside the notion of grave breaches, although they are in violation of the Geneva Conventions and Additional Protocol I. However, from the victim's perspective, it does not make a difference whether such an unjustifiable delay results from wilfulness or negligence, for example, by not keeping lists of interned civilians or prisoners of war at secure places so that they are destroyed and the repatriation is thereby delayed.

30. Art. 1 of the ICTY Statute and ICTR Statute identify the competence of the Tribunals to cover ‘serious violations of international humanitarian law’ (emphasis added), while the subsequent provisions (Arts. 4,5 ICTY; 2,3 ICTR) include genocide and crimes against humanity alongside war crimes (Arts. 2, 3 ICTY; 4 ICTR).

31. Abi-Saab, G., ‘The Specificities of Humanitarian Law’, in Swinarski, C., ed., Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Geneva/The Hague, ICRC 1984) pp. 265, 269Google Scholar; Meron, T., ‘The Humanization of Humanitarian Law’, 94 AJIL (2000) pp. 239, 246–247, 251–253CrossRefGoogle Scholar.

32. Vinuesa, R. Emilio, ‘Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law’, 1 YIHL (1998) pp. 69–110, 70–76CrossRefGoogle Scholar.

33. Other examples of such (often indirect) references are Art. 7 Geneva 1; Arts. 6, 7 Geneva II; Arts. 7,14,84,105,109,130 Geneva III; Arts. 5,7,8,27,38,80,146 Geneva IV; Arts. 11,44(5),45(3), 75, 85(4) Additional Protocol I of 1977; Art. 6(2) Additional Protocol II of 1977.

34. This provision reads: ‘At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled. Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield. Likewise, local arrangements may be concluded between Parties to the conflict for the removal or exchange of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area.’

35. Meron, loc. cit. n. 31, at pp. 247–256, 266–273.

36. Sandoz, Y., Swinarski, C. and Zimmermann, B., eds., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva, ICRC 1987) Commentary on Art. 91, p. 1053, para. 3645Google Scholar.

37. Note should also be taken of Articles 51/52/131/148 respectively of the Four Geneva Conventions which provide: ‘No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article [enumerating the grave breaches].’

38. Sandoz et al., op. cit. n. 36, at pp. 1056–1057, paras. 3656–3657.

39. Kalshoven, F., ‘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 of 1977 and beyond’, 40 ICLQ (1991) pp. 827–858CrossRefGoogle Scholar.

40. Ibid., pp. 830–833.

41. Ibid., pp. 835–837.

42. These cases include the so-called ‘comfort-women’ cases and those of English and Dutch Prisoners of War. See Correspondents' Reports in the present volume, pp. 543; 2 YIHL (1999) pp. 389–390Google Scholar [Japanese Report of H. Kasutani].

43. Leo Handel et al. v. Andrija Artukovic on behalf of himself and as representative of the Independent Government of the State of Croatia, US District Court for the Central District of California US 601 F.Supp. 1421, judgment of 31 January 1985, reproduced in Sassoli, M. and Bouvier, A., et al. , eds., How Does Law Protect in War (Geneva, ICRC 1999) pp. 713–719Google Scholar.

44. Jurisdiction for the cause of action was based on 28 USC at 1331 which gives the Court jurisdiction over actions ‘arising under’ the ‘Constitution, laws or treaties’ of the United States.

45. The Court held: ‘[…] The extent to which an international agreement establishes affirmative and judicially enforceable obligations without implementing legislation must be determined in each case by reference to many contextual factors: 1. the purposes of the treaty and the objectives of its creators, 2. the existence of domestic procedures and institutions appropriate for direct implementation, 3. the availability and feasibility of alternative enforcement methods, and 4. the immediate and long-range social consequences of self- or non-self-execution.[…].’

46. The non-self-executing character of the Hague Convention was also rejected in recent case-law, such as Fishel v. BASF Group, et al., Civil No. 4–96-CV-10449, Lexis 21230 (S. D. Iowa 1998), in which the court held that the cases are ‘unanimous … in holding that nothing in the Hague Convention even impliedly grants individuals the right to seek damages for violations of [its] provisions’. See also Neubauer, R.D., 2 YIHL (1999) pp. 427–428Google Scholar, and Correspondents Reports in this volume, at pp. 609 et seq.

47. The relevant passage reads: ‘[…] The code of behavior the Conventions set out could create perhaps hundreds of thousands or millions of lawsuits by the many individuals, including prisoners of war, who might think their rights under the Hague Convention violated in the course of large-scale war. Those lawsuits might go far beyond the capacity of any legal system to resolve at all, much less accurately and fairly; and the courts of a victorious nation might well be less hospitable to such suits against that nation of the members of its armed forces than the courts of a defeated nation might, perforce, have to be. Finally, the prospect of innumerable private suits at the end of a war might be an obstacle to the negotiation of peace and the resumption of normal relations between nations. […].’

48. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Commentary Part Two, at p. 77 (Geneva, ICRC 1972).

49. In a Judgment of July 2000, the Amsterdam District Court implicitly recognized the notion of individual humanitarian rights. The appellants sought to invoke alleged violations of Art. 52 Additional Protocol I, which sets forth rules on the protection of civilian objects, during NATO's bombing of the Federal Republic of Yugoslavia as a basis for compensatory claims against members of the Dutch Government. The court rejected this claim because, in its view, such violations had not occurred (para. 5.3.22). It also clarified that rules of IHL do not protect persons against stresses and tensions that are consequences of the air strikes as such and do not protect persons with regard to whom the rules and norms have not been violated in concreto (para 5.3.23). While confining the right to invoke the rules of those who personally were the victims of violations of IHL (direct victims), the court recognized the possibility of deriving individual rights from IHL rules, Gerechtshof Amsterdam, Vierde meervoudige burgerlijke kamer, Dedović v. Kok et al., Judgment of 6 July 2000.

50. See generally on the international accountability of armed opposition groups, Zegveld, op. cit. n.5.

51. Prosecutor v. Duško Tadić, No. IT-94–1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70. Prosecutor v. Jean-Paul Akayseu, No. ICTR-96–4-T, Judgment of 2 September 1998, para. 619.

52. That international bodies have to make determinations as to whether an act can be or cannot be attributed to a group is illustrated by the following example in the practice of the UN Mission for El Salvador, ONUSAL. ONUSAL received complaints from individuals saying that they were threatened by FMLN that it would stop the coffee harvest if they did not pay the war tax. ONUSAL transmitted the complaints to the FMLN local command, which categorically denied responsibility. Significantly, FMLN contended that the threats were probably being made by ordinary criminals who were using the name of FMLN as a cover, Third Report of ONUSAL, A/46/876, S/23580, paras. 147–149 (Human Rights Division, 19 February 1992).

53. A/51/10 (1996) (Draft Articles provisionally adopted by the Commission on first reading). Text available on http://www.law.cam.ac.uk/rcil/ILCSR/Statresp.htm (visited December 2000). This paragraph has been deleted in the Draft Articles provisionally adopted on second reading by the Drafting Committee in 1998, UN Doc. A/CN.4/L.569 (4 August 1998). The reason is, according to the report of the Special Rapporteur, that this provision is concerned with movements, which are, ex hypothesi, not states. Therefore, it falls outside the scope of the Draft Articles. The Rapporteur observed that, while the responsibility of insurrectional movements can be envisaged, for example, for violations of international humanitarian law, it can be dealt with in the commentary to the Draft Articles, First Report of the Special Rapporteur on State Responsibility, J. Crawford, ILC, A/CN.4/490/Add.5, para. 276 (22 July 1998).

54. An example is provided by the Taliban Movement, ruling in Afghanistan.

55. ILC Draft Articles on State Responsibility, supra n. 53, Art. 15.

56. Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Final Report submitted by T. van Boven, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1993/8, 2 July 1993, para. 137, Proposed Basic Principles 3, 8–11.

57. See for corresponding considerations in the context of grave human rights violations, Tomuschat, C., ‘Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International Law’, in Randelzhofer, A. and Tomuschat, C., eds., State Responsibility and the Individual — Reparation in Instances of Grave Violations of Human Rights (The Hague, Martinus Nijhoff Publishers 1999) pp. 1–25, pp. 18–25Google Scholar. See also Leo Handel v. Andrija Artukovic, US Distr. Cal. (1985) supra n. 43 and accompanying text.

58. The Committee would in fact become a forum of first resort, as opposed to a last resort.

59. Cf., Draft Article 42(3) of the ILC's Draft Articles on State responsibility, supra n. 53.

60. The Hague Agenda for Peace and Justice for the 21st Century, available at: http://www.haguepeace.org/appeals/english.html — visited February 2001. The Agenda was subsequently adopted by the General Assembly as UN Doc. A/54/98.

61. An online version of the ‘Draft Protocol establishing an Individual Complaints Procedure for Violations of International Humanitarian Law’ may be consulted at the website of the Hague Appeal for Peace at: www.haguepeace.org http://www.haguepeace.org. Any feedback is welcome and may be submitted to Jann K. Kleffner at [email protected] and Liesbeth Zegveld at [email protected].