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Remedies for victims of violations of international humanitarian law

Published online by Cambridge University Press:  25 February 2011

Liesbeth Zegveld
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Résumé

Le droit international humanitaire garantit la protection et l'assistance aux victimes de conflits armés, Cependant, hrsque des personnes deviennent victimes de violations du droit humanitaire, la protection conférée par cette branche du droit cesse de fait. En particulier, a priori elle offre aux victimes de violations graves peu de possibilités d'obtenir réparation, voire aucune.

Le droit international humanitaire diffère nettement sur ce point des tendances en droit international en la matière. Les droits de l'homme, branche de droit analogue mais distincte, définissent clairement le droit des victimes d'obtenir réparation en cas de violation des droits fondamentaux, Depuis peu, le Statut de Rome de la Cour pénale internationale autorise la Cour à déterminer dans sa decision l'ampleur du dommage, de la perte ou du préjudice causé aux victimes et à lew accorder une réparation. En revanche, le droit humanitaire ne garantit pas expressément le droit à un remède juridique aux victimes de violations.

Cet article examine les moyens juridiques mis à la disposition des victimes de violations du droit international humanitaire par le droit interne et le droit international pour qu'elles fassent respecter lews droits fondamentaux. II étudie la question de savoir si les victimes ont droit à un remède et dans quelle mesure elles peuvent faire valoir ce droit. Une brève étude des pratiques nationale et internationale tendrait ainsi à prouver que, s'il n'y a guère de doute sur le fait que les victimes jouissent de droits au titre du droit international humanitaire, ces droits ne semblent toutefois pas justiciable et ne peuvent donc que difficilement donner lieu à un remède.

Type
Research Article
Information
International Review of the Red Cross , Volume 85 , Issue 851: Les victimes après la guerre: action humanitaire, réparation et justice/Victims after the war: humanitarian action, reparation and justice , September 2003 , pp. 497 - 527
Copyright
Copyright © International Committee of the Red Cross 2003

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References

1 As one commentator put it, the purpose of international humanitarian law is to go “beyond the interstate levels and [to reach] for the level of the real (or ultimate) beneficiaries of humanitarian protection, i.e. individuals and groups of individuals”, Abi-Saab, G., “The specificities of humanitarian law”, in Swinarski, C. (ed.), Studies and Essays of International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC, Geneva/The Hague, 1984, p. 269Google Scholar; similarly, Meron, T., “The humanization of humanitarian law”, American Journal of International Law, Vol. 94, 2000, pp. 239–278.Google Scholar

2 Pictet, J. (ed.), Commentary: IV Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, reprinted 1994, p. 77.Google Scholar

3 International Law Commission Articles on Responsibility of States for Internationally Wrongful Acts, adopted on second reading by the International Law Commission (“ILC”) at its 53rd Session (UN Doc. A/CN.4/L.569, 9 August 2001) and by the General Assembly on 12 December 2001, Res. 56/83, text available at <http://www.law.cam.ac.uk/rcil/ILCSR/Statresp.htm>.

4 Art. 33(2) of these Articles, Ibid., contains a saving clause, stipulating 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”. This provision underlines that the Articles do not deal with the possibility of the invocation of responsibility by persons or entities other than States; it merely recognizes the possibility that individuals may be entitled to claim reparation for violations of primary norms of international humanitarian law by States. See Crawford, J., The International Law Commission's Articles on State Responsibility, Cambridge University Press, Cambridge, 2002, p. 210.Google Scholar

5 See for example Art. 5(9) of the International Covenant of Civil and Political Rights of 1969.

6 Of 17 July 1998, UN doc. A/CONF.183/9, Art. 75.

7 Lord Denning in Gouriet v. Union of Post Office Workers, AC, 1978, p. 435, cited in R. Higgins, “The role of domestic courts in the enforcement of international human rights: The United Kingdom”, in Conforti, B. and Franciani, F. (eds.), Enforcing International Human Rights in Domestic Courts, Martinus Nijhoff Publishers, The Hague, 1997, p. 38.Google Scholar

8 E/CN.4/2000/62, 18 January 2000. Pursuant to its resolution 1989/13, the Sub-Commission on Prevention of Discrimination and Protection of Minorities entrusted Mr. Theo van Boven with the task of undertaking a study concerning the right to restitution, compensation and rehabilitation for victims of human rights and fundamental freedoms (E/CN, 4/Sub.2/1993/8). Mr. Theo van Boven prepared three versions of the basic principles and guidelines on the right to reparation for victims. The first version is found in document E/CN.4/SUD.2/1993/8 of 2 July 1993, section IX. The second version is found in document E/CN.4/Sub.2/1996/17 of 24 May 1996. The third version is found in document E/CN.4/1997/104 of 16 January 1997. The Commission on Human Rights, in its resolution 1996/35, regarded the proposed draft basic principles elaborated by Mr. Theo van Boven as a useful basis for giving priority to the question of restitution, compensation and rehabilitation; in resolution 1998/43, it requested its Chairman to appoint an independent expert to prepare a revised version of the basic principles and guidelines elaborated by Mr. Theo van Boven with a view to their adoption by the General Assembly. Pursuant to paragraph 2 of resolution 1998/43, the Chairman of the Commission on Human Rights appointed Mr. M. Cherif Bassiounito perform this task. These Principles were preceded by the Declaration of Basic Principles for Victims of Crime and Abuse of Power, adopted by General Assembly resolution 40/34 on 29 November 1985. Attention is also drawn to the resolution adopted by the Committee of Ministers of the Council of Europe on 28 September 1977, which aimed at harmonizing national laws in the field of compensation for victims of crime, Resolution (77) 27, adopted during its 275th meeting.

9 Principle 11, UN Principles on the Right to a Remedy, op. cit. (note 8).

10 Principle 21, Ibid.

11 Recommendation 13, The Agenda for Peace, UN Doc. A/54/98.

12 International Law Association, Newsletter, 17 May 2003.

13 This is considered to be 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.

14 This paper is based and enlarges on an earlier article by the author and Kleffner, J. K., “Establishing an individual complaints procedure for violations of international humanitarian law”, Yearbook of International Humanitarian Law, Vol. 3, 2000CrossRefGoogle Scholar, and on the background reports compiled for the Expert Meeting on Remedies for Victims of Violations of International Humanitarian Law at the Amsterdam Centre for International Law, 9–10 May 2003, and reproduced in Collection of Documents, Amsterdam Centre for International Law, May 2003.

15 On remedies for victims under general international law, see Randelzhofer, A. and Tomuschat, C. (eds), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights, Martinus Nijhoff Publishers, The Hague, 1999Google Scholar; Norgaard, C. A., The Position of the Individual in International Law, Copenhagen, 1962Google Scholar. On remedies for victims of human rights violations, see for example Snelton, D., Remedies in International Human Rights Law, Oxford University Press, Oxford, 1999Google Scholar; Netherlands Institute of Human Rights, Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Maastricht 11–15 March 1992, SIM Special No. 12.

16 The first thorough analysis of the subject is by McDonald, A., “Rights to legal remedies for victims of serious violations of international humanitarian law”, Ph.D. thesis, The Queen's University of Belfast (unpublished).Google Scholar

17 The word “victim” does, however, appear in the title of the two Protocols Additional to the Geneva Conventions of 1949: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereinafter “Additional Protocol I”) and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977 (hereinafter “Additional Protocol II”).

18 Although the different conventions are limited in scope, the Law of Geneva serves to provide protection for all those who, as a consequence of an armed conflict, have fallen into the hands of the adversary. The protection envisaged is against the arbitrary power which one party acquires, in the course of an armed conflict, over persons belonging to the other party.

19 The right to protection entails, among other things, the right to humanitarian assistance.

20 Para. 3.2. The Supreme Court dismissed a claim first brought in interlocutory proceedings (kort geding) against the Dutch State to order the latter to immediately stop its (participation in) hostilities against the Federal Republic of Yugoslavia (FRY). From 24 March to 10 June 1999, the Netherlands participated in NATO military operations against the FRY. These operations consisted of air attacks. At the time of the hostilities the claimants were mobilized soldiers in active military service of the FRY. One of the legal questions to be determined by the Supreme Court was whether the air attacks could be qualified as violations of IHL Arguably such a claim would fall under Article 2(4) of the UN Charter prohibiting the use offeree. However, this provision is generally denied direct effect in domestic courts; see for example Amsterdam Court of Appeal (Netherlands), Vierde meervoudige burgeriijke kamer, Dedovic v. Kok et al., judgment of 6 July 2000, para. 5.3.6. Similarly: Gerechtshof Amsterdam, Vierde meervoudige burgeriijke kamer, Dedovic v. Kok et al., judgment of 6 July 2000, para. 5.3.23 (“De regels en normen van dit humanitaire recht strekken … niet tot de bescherming van personen tegen spanningen of angsten die het gevolg zijn van de luchtacties als zodanig en evenmin tot bescherming van personen jegens wie die regels en normen niet in concreto zijn overtreden. Het komt er dus op aan of ieder van appellanten persoonlijk het slachtoffer is geworden van een gebeurtenis die als schending van humanitair (oorlogs) recht moet warden aangemerk”). A distinction is sometimes made in this regard between direct victims and indirect victims of IHL (compare Gerechtshof Amsterdam, Vierde meervoudige burgeriijke kamer, Dedovicv. Kok et al., Judgment of 6 July 2000).

21 Principle 8, UN Principles on the Right to a Remedy, op. cit. (note 8): A “victim may also be a dependant or a member of the immediate family or household of the direct victim as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm”.

22 Tomuschat, op. cit. (note 15), p. 7; Norgaard, op. cit. (note 15), p. 48.

23 See for example Arts 42 and 62, Convention relative to the Treatment of Prisoners of War, of 27 July 1929.

24 In particular, Arts 7 and 8 common to the four Geneva Conventions of 12 August 1949.

25 Other examples of such (often indirect) references are contained in Article 7 of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (First Geneva Convention); Articles 6 and 7 of the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (Second Geneva Convention); Articles 7, 14, 84, 105 and 130 of the Convention relative to the Treatment of Prisoners of War of 12 August 1949 (Third Geneva Convention); Articles 5, 7, 8, 27, 38, 80 and 146 of the Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Fourth Geneva Convention); Articles 44(5), 45(3). 75 and 85(4) of 1977 Additional Protocol I; and Article 6(2) of 1977 Additional Protocol II.

26 Gerechtshof Amsterdam, Vierde meervoudige burgertijke kamer, Dedovic v. Kok et al., Judgment of 6 July 2000, para. 5.3.22.

27 This provision reads: “At all times, and particularly after art 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.”

28 Sandoz, Y., Swinarski, C., and Zimmerman, B. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987Google Scholar (hereinafter “Commentary on the Additional Protocols”), p. 1369.

29 Examples are provided in (parts of) Articles 4 and 6 of Additional Protocol II. See Ibid., pp. 1399–1400 and p. 1344.

30 The UN Principles on the Right to a Remedy, op. cit. (note 8) also assume that rights exist under IHL, as a right to a remedy undoubtedly presupposes substantive rights. Principle 1 refers to IHL norms that are contained in inter alia treaties and customary law. The Principles refrain from defining the treaties and customary rules in question, leaving the question which primary rights individuals enjoy under IHL unanswered. In fact, all instruments enumerated by the UN Commission on Human Rights in its resolution adopting the UN Principles are human rights treaties, except arguably the Convention on the Rights of the Child, dealing in Article 39 with child victims of armed conflict which stipulates: “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of (…) armed conflict”). In his final report the Special Rapporteur explains that the UN Principles were drafted with a view to their being applied “in light of future developments in international law”. For this reason, the terms “violations” and “IHL” were not defined, as “their specific content and meaning are likely to evolve over time” (Final Report, op. cit. (note 8), para. 9). The Special Rapporteur may have had in mind here the long-standing cross-fertilization of humanitarian law and human rights law.

31 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II–A, p. 822. This statement was made in the context of Article 30 of the Fourth Geneva Convention of 1949, entitling protected persons in the territories of the parties to the conflict and in occupied territories to apply, among others, to protecting powers and the ICRC to assist them.

32 The Conference in 1977 accepted Article 91 without much discussion and without dissent, reflecting the general acceptance of the article's contents as established customary law. See expert opinion by Kalshoven, F., “Article 3 of the Convention (IV), respecting the laws and customs of war on land”, in Fuijta, H., Suzuki, I., Nagano, K. (eds), War and Rights of Individuals, Nippon Hyoron-sha Co, Ltd. Publishers, Tokyo, 1999, p. 37.Google Scholar

33 Commentary on the Additional Protocols, op. cit. (note 28), Commentary on Article 91, p. 1053, para. 3645. Note should also be taken of Articles 51/52/131/148 respectively of the four Geneva Conventions of 1949 which state: “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].”

34 Commentary on the Additional Protocols, op. cit. (note 28), pp. 1056–1057, paras 3656–3657.

35 Expert opinions by F. Kalshoven, E. David and C. Greenwood, in War and Rights of Individuals, op. cit. (note 33).

36 Ibid. p. 39. See also 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”, International and Comparative Law Quarterly, Voi. 40, 1991, pp. 827–858.CrossRefGoogle Scholar

37 Kalshoven, op. cit. (note 36), pp. 830–833.

38 Ibid., pp. 835–837.

39 Two out of the ten comfort women claims made against the government of Japan in Japanese courts, seeking an apology and State compensation, were dismissed by the Supreme Court of Japan. The eight other cases have been dismissed by the Lower Court. Other such cases are those of English and Dutch prisoners of war. See the correspondents' reports in the Yearbook of International Humanitarian Law: Kasutani, Hideyuki and Iwamoto, Seigo, “Japan” in Yearbook of International Humanitarian Law, Vol. 3, 2000, p. 543Google Scholar; Kasutani, Hideyuki, “japan”, in Yearbook of International Humanitarian Law, Vol. 2, 1999, pp. 389–390Google Scholar

40 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. (eds), How Does Law Protect in War, ICRC, Geneva, 1999, pp. 713–719.Google Scholar

41 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.

42 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.”

43 US Court of Appeals for the Fourth Circuit, 8 January 2003, International Legal Materials, Vol. 42, 2003, p.197.Google Scholar

44 Ibid. p. 208, Part III, under B.

45 Ibid.

46 Paust, J., “Judicial power to determine the status and rights of persons detained without trial”, Harvard International Law Journal, Vol. 44, No. 2, 2003, p. 515Google Scholar.

47 Currently codified at 28 U.S.C. § 1350.

48 630 F.2d 876 (2d Cir.1980) ILR 77, p. 169.

49 726 F.2d, 774 (D.C. Circuit, 1984, Nos. 81–1870, 81–1871.

50 Ibid., p. 817. Similarly, see Rogers, J. M., International Law and United States Law, Ashgate Publishing Company, Dartmouth, 1999, pp. 113–123.Google Scholar

51 No. 95–55464; No. 95–55768; No. 95–56121. US Court of Appeals for the Ninth Circuit. 107F. 3d. 696, 1996 US App. LEXIS 37014, 24 September 1996, as amended 19 February 1997.

52 Born, G. B., International Civil Litigation in United States Courts: Commentary & Materials, 3rd ed., Kluwer Law International, The Hague, 1996, pp. 37–39.Google Scholar

53 Ibid., p. 35.

54 Letelier v. Chile, 488 F. Supp. 665 (D.D.C.1980).

55 Siderman v. Argentina, 965 F.2d 699 (9th Cir. 1992), cert. Denied, 507 U.S. 1017 (1993).

56 Several commentators have considered national case law denying direct rights of individuals under IHL to be wrong. See Greenwood, op. cit. (note 35), p. 68; David, op. cit. (note 35), pp. 54–55.

57 Art. 9 of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction, of 18 September 1997; Art. 14 of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996); Arts 15–2 and 16–1 of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 26 March 1999.

58 As Meron argued: “As regards the national State of the perpetrators of non-grave breaches, its obligations go further. Given the purposes and objects of the Geneva Conventions and the normative content of their provisions, any State that does not have the necessary laws in place, or is otherwise unwilling to prosecute and punish violators of clauses other than the grave breaches provisions that are significant and have a clear penal character, calls into serious question its good faith compliance with its treaty obligations.” Meron, T., “international criminalization of internal atrocities”, American journal of International Law, Vol. 89, 1995, P. 570.CrossRefGoogle Scholar

59 Principles 8(d) and io(a), UN Principles on the Right to a Remedy, op. cit. (note 8).

60 Principle 12, Ibid. This should be without prejudice to any other domestic remedies.

61 The International Fact-Finding Commission is a creation of Article 90 of Additional Protocol I. It was established in 1991, once the conditions set forth in Article 90(1)(b) were fulfilled.

62 Not examined are the United Nations organs. For the application of humanitarian law by the United Nations, see Gasser, H-P., “Ensuring respect for the Geneva Conventions and Protocols: The role of third States and the United Nations”, in Fox, H. & Meyer, M. A. (eds), Effecting Compliance, British Institute of International and Comparative Law, London, 1993, pp. 15–49.Google Scholar

63 Statutes of the International Red Cross and Red Crescent Movement, adopted by the International Conference of the Red Cross (1986, amended 1995), Art. 5(2)(c). Text unchanged in Statutes of the ICRC (1998) Art. 4(1)(c).

64 Gassmann, P., “Colombia: Persuading belligerents to comply with international norms”, in Chesterman, S. (ed.), Civilians in War, Lynne Rienner Publishers, London, 2001, p. 90Google Scholar, footnote 16, cited in F. Kalshoven, “The International Humanitarian Fact-Finding Commission established by the First Additional Protocol to the Geneva Conventions”, in Collection of Documents, op. cit. (note 14), pp. 9–30.

65 It gave the following example: “[B]oth Common Article 3 [of the 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 the Commission's jurisdiction. But the Commission's ability to resolve claimed violations of this nonderogable 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.” IACHR Report No. 55/97, Case No. 11.137, Argentina, OEA/Ser/L/V/11.97, Doc. 38, October 30, 1997, p. 44, para. 161.

66 Ibid.

67 For an analysis of the arguments presented by the Commission, see Zegveld, L., “The Inter-American Commission on Human Rights and international humanitarian law: A comment on the Tablada case” in Revue Internationale de la Croix-Rouge/International Review of the Red Cross, Vol. 324, 1998, pp. 505–511.Google Scholar

68 Caso Las Palmeras, Exepciones Pretiminares, Sentencia de 04 de Febrero de 2000, Serie C, No. 66. On this case, see Kalshoven, F., “State sovereignty versus international concern in some recent cases of the InterAmerican Court of Human Rights”, in Kreijen, G. (ed.), State, Sovereignty, and International Governance, Oxford University Press, Oxford, 2002, pp. 259–280.CrossRefGoogle Scholar

69 Ibid. para. 43.

70 Ibid, paras. 32–33.

71 Ibid. para. 34.

72 Paras. 205–210.

73 Letter of the US government of 12 March 2002, available at: <http://www.photius.com/rogue_nations/guantanamo.html>.

74 On this case, see F. Kalshoven, “Enemy combatants in American hands: Are there limits to the President's discretion?”, typescript on file with author, text expected to be published in December 2003.

75 Humanitarian law has been applied in the context of the following ECHR rights: Article 2 (right to life), Article 3 (prohibition of torture/inhuman treatment), Article 8 (right to family life), and Article 1 of Protocol 1 right to property). The relevant practice may be categorized under the following headings: destruction of property and displacement of the civilian population, detention and treatment of detainees, conduct of military operations and unlawful killings. Humanitarian law has also surfaced in the practice of other human rights bodies. For instance, in an inter-State complaint against Turkey, Cyprus invoked IHL rules before the European Commission on Human Rights (4 EHRR 482 at 552, 553 (1976) Commission Report). However, the European Commission did not examine this point. See on this subject Cerna, Ch.M., “Human rights in armed conflict: Implementation of international humanitarian law norms by regional intergovernmental human rights bodies”, in Kalshoven, F. & Sandoz, Y. (eds), Implementation of International Humanitarian Law, Martinus Nijhoff Publishers, Dordrecht, 1989, pp. 31–67.Google Scholar

76 From its Resolution on the Promotion and the Respect of International Humanitarian Law and Human and Peoples' Rights, it appears that the African Commission regards both sets of laws as being based on the same principles: “Considering that human rights and IHL have always, even in different situations, aimed at protecting human beings and their fundamental rights…”. In Seventh Annual Activity Report of the African Commission on Human and Peoples' Rights, 1993–94, ACHPR/RPTI7th at Annex XI.

In the same resolution, the Commission combines considerations of humanitarian and human rights law in a number of ways. It sees a need for promoting both together: “Emphasizing the importance of propagating the principle of human rights law as well as IHL”, Resolution on Human and Peoples' Rights Education, Ibid., at Annex X.

77 Resolution on Sudan, Eighth Annual Activity Report of the African Commission on Human and Peoples' Rights, 1994–95, ACHPR/RPT/8th, Annex VII.

78 Greenwood, C., “International humanitarian law” in Kalshoven, F. (ed.), The Centennial of the First International Peace Conference: Reports and Conclusions, Kluwer Law International, The Hague, 2000, pp. 240–241 and 251–252.Google Scholar

79 Ibid, at 240.

80 “Committees” competent to receive complaints of individuals have been 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 (Committee 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” have been 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 Charter adopted on June 1998, and thereafter Commission and Court on Human and Peoples' Rights), the Americas (Inter-American Commission on Human Rights and the Inter-American Court of Human Rights).

81 See N. Wühler, “The role of ad hoc claims commissions”, in Collection of Documents, op. cit. (note 14), pp. 50–58; K. Oellers-Frahm & A. Zimmermann (eds), Dispute Settlement in Public International Law: Texts and Materials, 2nd completely revised and updated edition, Max-Planck-lnstitut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg, 2001; Sands, P., Mackenzie, R. & Shany, Y. (eds.), Manual on International Courts and Tribunals, Butterworths, London, 1999.Google Scholar

The use of international claims mechanisms to deal with the consequences of international or internal conflicts is steadily increasing. This trend is expected to continue. Proposals have been submitted, for instance, in relation to Cyprus, Palestine and most recently Iraq.

82 Other examples are the mixed arbitral tribunals set up under the rules of peace treaties after the First World War and similar tribunals set up after the Second World War. These tribunals had the purpose of giving compensation to individuals for losses suffered during the wars.

83 SC Resolution 687 (1991) of 8 April 1991, para. 16.

84 Approximately 7,000 claims have been filed by corporations, and around 300 by governments. See the UNCC's website: <www.uncc.ch>.

85 See e.g., Decision No. 7, UN Doc. S/AC.26/1991/7, para. 6.

86 Peace Agreement, Art. 5, para. 1.

87 EECC, Partial Award Prisoners of War, Ethiopia's claim 6 between the Federal Democratic Republic of Ethiopia and the State of Eritrea, The Hague, July 1, 2003; EECC Partial Award Prisoners of War, Eritrea's claim 17 between the State of Eritrea and the Federal Democratic Republic of Ethiopia, The Hague, July 1, 2003.

88 See, for example, Report of the Secretary-General on the Establishment of the UNCC, UN Doc. S/22559, para. 21.

89 N. Wühler, op. cit. (note 81), pp. 56–57.

90 For corresponding considerations with regard to grave human rights violations, see C, Tomuschat, op. cit. (note 15), pp. 1–25. See also Leo Handel v. Andrija Artukovic, US Distr. Cal. (1985), op. cit. (note 40) and accompanying text.

91 For the Statute of the Special Court, see Annex to the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (2000), as amended on 16 January 2002. See also SC Resolution 1315 (2000).

92 judge F. Pocar, “The international criminal tribunals”, in Collection of Documents, op. cit. (note 14).

93 As the French Minister of Justice pointed out: “We must (…) stop, once and for all, regarding victims merely as witnesses (…) [V]ictims are not simply witnesses whose participation in proceedings should be limited to gathering the information which they are able to provide. They have a separate role to play, and this must be recognised by the International Criminal Court, as is expressly provided for, moreover, by the Rome Statute. A victim's primary status is that of a person who has suffered; he may also have the secondary status of a person who has seen or heard things. The one does not exclude the other, but the injury suffered is enough in itself fully to justify the entitlement of such a person to express his concerns and complaints to the Court.”, E. Guigou, Address by the Ministry of Justice at the International Colloquium on “L'Acces des victimes à la Cour pénale internationale” (27 April 1999) (unofficial translation).

94 Jorda and De Hemptinne comment that these advances leave some difficulties unresolved. They draw attention inter alia to the fact that the ICC Statute does not explain how the victim's intervention in the proceedings can be accommodated with the right of the accused to be tried fairly. Also they stress that the Statute does not deal with the difficult issue of settling the right of reparation without compromising the expeditious conduct of trials, as victims of violations of humanitarian law are generally numerous, see C. Jordaand J. de Hemptinne, “The status and role of the victim”, in Cassese, A., Gaeta, P., Jones, J.R.W.D. (eds), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 1388–1389CrossRefGoogle Scholar. But these are practical issues to which the Court will have to find a solution.