The Juridification of war and compensation of victims

| by Dr. Ruwantissa Abeyratne

( November 15, Montreal, Sri Lanka Guardian) Inter arma enim silent leges is a maxim attributed to Cicero, which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero’s time, has taken on a different and a more complex dimension, extending from the idealistic synergy between the executive and the judiciary in instances of civil strife, to the overall power, called “prerogative” or “discretion” of the sovereign, to act for the public good and the role of the judiciary as the guardian of the rule of law.
The enduring conflict between executive power and the rule of law is at the heart of this maxim. In modern usage it has become a watchword for the erosion of civil liberties during internal and external strife. The implication of Cicero’s aphorism is that civil liberties and freedoms are subservient to a nation’s self-defence from enemies within or without. This brings to bear certain issues involving evolving principles of law and the role of the judiciary in addressing issues of human liberty, the protection of society in a modern world and the award of compensation to war victims.
Norms of humanitarian law are also enshrined in decisions of courts. Arguably the best known example is the decision rendered in the Velásquez Rodríguez case, handed down by the Inter-American Court of Human Rights against the government of Honduras. The case involved the disappearance of Manfredo Velásquez, a Honduran citizen.
Statistics reveal that during armed conflicts, civilian casualties often exceed those of the military. The Washington Post of March 11 2006 recorded that as of that day, whereas the number of civilians killed in Iraq reached anywhere between 33,489 to 35,569, the number of United States military personnel killed was 2,308. This is a ratio of 14:1. The International Law Association (ILA), at its Seventy Second Conference held in Toronto in June 2006 addressed the issue of compensation for victims of war and recognized the startling reality that while the families of American soldiers killed are well compensated by the United States Government (as indeed it should) those of Iraqi civilian casualties are not. This is quite disturbing. To add to the inequity, when victims of war file suits against a responsible State before the court of their home State or a third State, they will be confronted with state immunity as one of the hardest procedural obstacles to overcome.
In its most fundamental sense, the concept of reparation is an extension from its original meaning “repair”. Reparation is defined as “the act or an instance of making amends”, which usually takes the form of an award of compensation to one who has suffered injury, loss or wrong at the hands of another. At criminal law, reparations usually denote a process of making amends by an offender to his victim, or to victims of crime generally.
From an international perspective, the operative law with regard to victims of war is international humanitarian law. This limb of law is also known as the law of war, the laws and customs of war or the law of armed conflict. Basically, international humanitarian law encompasses four limbs, the first being that persons who are not, or are no longer, taking part in hostilities shall be respected, protected and treated humanely. They shall be given appropriate care, without any discrimination. Secondly, captured combatants and other persons whose freedom has been restricted are required to be treated humanely. They should be protected against all acts of violence, in particular against torture and if they are brought to trial they have the right to enjoy the fundamental guarantees of a regular judicial procedure. Thirdly, the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. No superfluous injury or unnecessary suffering shall be inflicted. Finally, in order to spare the civilian population, armed forces are required at all times to distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Neither the civilian population as such nor individual civilians or civilian objects should be the target of military attacks.
Within these four precepts, international humanitarian law is entrenched as the legal corpus comprised of the Geneva Conventions and the Hague Conventions as well as subsequent treaties, case law, and customary international law. The Geneva Conventions consist of four treaties formulated in Geneva, which set the pace in Standards for international law as applicable to humanitarian concerns. The fourth Convention, which relates to the protection of civilians during times of war in the hands of an enemy and under any occupation by a foreign power, provides in Article 3 that even where there is not a conflict of international character the parties must as a minimum adhere to minimal protections that should be accorded to certain categories of persons. These persons are described as: non-combatants, who usually are civilians, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause. Article 3 also requires these persons to be in all circumstances treated humanely, with the following prohibitions:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b)taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Article 4 defines a person protected by the Geneva Conventions as one who, at a given moment and in any manner whatsoever, finds himself, in case of a conflict or occupation, in the hands of a Party to the conflict or occupying power of which he or she is not a national. However, it explicitly excludes nationals of a State which is not bound by the Convention and the citizens of a neutral state or an allied state if that state has normal diplomatic relations with in the State in whose hands they are.
The term “war” is no longer used in its traditional restrictive sense of a conflict involving international dimensions. In the modern sense, war is any prolonged state of violent, large-scale conflict involving two or more groups of people and is now considered to include non-international armed conflicts as referred to in Article 3 of the fourth 1949 Geneva Convention. Also, humanitarian law does not apply only to victims of wars between international actors. Professor Rainer Hoffman, in his report to the International Law Association’s seventy second conference observed that if present international law admits of an individual’s right against a State for injuries suffered during the course of a war in which that State is involved, it must necessarily follow that it is difficult to maintain that the same right might not prevail against international organizations and non-State actors. He further states that if such Organizations and non-State actors are subjects of international law and engage in acts which could have been committed, under traditional international law, only by States and thus behave like or as States, then they should, in principle be held accountable in the same way as States.
It is noteworthy that the term “compensation” has also undergone some revision in recent times to accommodate modern exigencies of warfare. The majority of the Committee Members of the ILA Committee that went into the subject of compensation for war victims were of the view that the term was too narrow. They observed that, in view of the present state of international law relating to the consequences of internationally wrongful acts, there is wide justification to extend the term to include all forms of reparation such as restitution, compensation stricto sensu, rehabilitation, satisfaction and guarantees of non-repetition.
Another term that came under review was “victim” and there was consensus in the Committee that a victim could include both categories of natural and legal person, meaning that a male or female, as a natural person, could be as much a victim as a corporate entity or organization. It is interesting to note that the International Red Cross has recognized as a rule of customary international law the principle set out in the second paragraph of Article 49 of the fourth Geneva Convention, which provides that persons displaced during armed conflict must be transferred back to their homes as soon as hostilities in the area in question have ceased. This right is often referred to as the “right of return” and has been reaffirmed in later international treaties and conventions.
It is a general principle of international humanitarian law that any wrongful act or violation of an obligation under international law gives rise to an obligation to make reparations. As discussed earlier in this article, the international community is forging toward recognizing an extension of the scope of this principle to acts of non-States parties. The American Convention on Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms address the issue and contain text which endorse this principle. Furthermore, Resolutions of the United Nations General Assembly have endorsed general principles regarding redress and reparations, and the Council of Europe has adopted a Convention to regulate and improve existing compensation schemes in member states. Finally, the U.N. Human Rights Committee has required that compensation be paid to victims of prolonged imprisonment and torture, and to the relatives of victims of disappearance and summary execution. Such measures bring to bear the fact that the right to restitution or compensation is set forth in humanitarian law and in customary international law.
Norms of humanitarian law are also enshrined in decisions of courts. Arguably the best known example is the decision rendered in the Velásquez Rodríguez case, handed down by the Inter-American Court of Human Rights against the government of Honduras. The case involved the disappearance of Manfredo Velásquez, a Honduran citizen. The court was unequivocal in its decision that the State of Honduras was legally obligated to compensate the victim’s family. The Court went on to define reparation as full restitution, which included the restoration of the status quo ante or prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional damage and injury.
The best known examples of post civil war reparations and measures taken thereupon are Chile, El Salvador and Guatemala.. The past decade has seen the establishment of “truth commissions” which are official governmental bodies formed to look into victimization in the past during armed conflicts. In El Salvador and also in Guatemala in particular, truth commissions were used to delve into the past against the backdrop of government negotiations for a transition from civil war to peace. In the Latin American communities, these truth commissions are widely considered as a sound base for national reconciliation and reparative measures.
In Chile, a national commission was set up to account for the dead and those who had disappeared without a trace in the country. In pursuance of its findings, the Chilean Commission recommended that specific measures be taken to compensate the relatives of the victims. As a result, the legislature enacted Law No. 19.123, published in the Official Daily on February 8, 1992. The law established a National Corporation for Reparation and Reconciliation, which was essentially a temporary, decentralised state organ under the Ministry of the Interior with a two-year mandate to provide compensation to victims’ families and develop programs to foster a “culture of respect for human rights” in Chile. The reparations included such awards as monthly pensions, fixed-sum payments, health benefits, and educational benefits.
The law also provided for victims and their families whose income was below the poverty line to receive free health care services in the national health care system. In addition, the Ministry of Health established a “Programme of Reparation and Integral Health Care” to ensure that individuals affected by human rights violations had access to good health care benefits such as general medical care, social services, psychological counselling, and other services free of charge. These facilities were also given to the victims’ parents, children or siblings who were eligible to receive this assistance.
Educational services and special educational benefits were given to children of victims until they reached the age of 35. The law explicitly provides that children studying in secondary schools, universities, professional institutes or technical institutes shall receive scholarships to pay for registration and tuition fees, plus a monthly allowance to cover living expenses. Finally, the law exempts children of victims from mandatory military service.
Argentina is another interesting study. The Government’s first initiative was to establish an official national commission (CONADEP) to inquire into the disappearances that occurred during military rule. The Commission documented 9000 cases which resulted in a decision of the President to the effect that several former military leaders should stand trial. Nine high-ranking officials were later tried and several convicted of human rights violations, and the courts were inundated with individual complaints.
Some years later, President Menem signed a decree making persons who had been detained for political reasons during the period 1976-83 eligible for financial assistance. In order to carry the principle of compensation further, special legislation such as Act No. 24.043, promulgated on December 23, 1991, provided for indemnification to persons who were placed at the disposal of the National Executive, or who, as civilians, suffered detention by virtue of acts of military tribunals during the state of siege, provided they had not received indemnification under a previous court order from the State, payable in six instalments.
In today’s parlance one sees numerous regimes quelling protests and demonstrations with undue violence, often resulting in civilian casualties. In such instances compensation of victims post facto or their dependants would indeed be a compelling need.

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Author: Sri Lanka Guardian

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