Chapter 11 Beyond the State: Individual Civil Responsibility for Violations of International Law

In: Changing Actors in International Law
Author: Miriam Cohen
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Abstract

In recent times, international law has been marked by the emergence of individuals as actors beyond the traditional ideologies that primarily recognized states. Historically, the duty to provide reparation for internationally wrongful conduct has existed in customary international law. Some inter-state agreements and, more recently, human rights mechanisms dealing with human rights violations also establish such duty of reparation. The goal of this Chapter is to examine the duty to repair injuries when individuals commit international crimes. As such, it discusses the domestic civil responsibility of individuals who have committed or participated in the commission of wrongful conduct which amounts to crimes under international law. The Chapter ultimately claims that international law is evolving towards a broader recognition of individual responsibility in relation to international crimes, one that is expanding beyond criminal accountability.

1 Introduction

In recent times, international law has been marked by the emergence of individuals as actors beyond the traditional ideologies that primarily recognized states. With increasing globalization and a more interconnected world, the framework of international responsibility for internationally wrongful acts can no longer neglect key players in international law: individuals and non-state actors.1 With individuals gaining a more important place in international law, states are no longer the only actors who can be held responsible for internationally wrongful acts. Since the Nuremberg trials,2 individual criminal responsibility for international crimes has developed within the framework of international law. More recently, international law has seen the development of a civil or reparative dimension of individual liability.

Within a framework of international law where the legal personality of individuals is evolving, there are related questions that arise. To what extent, if any, should international law be concerned with imposing broader obligations on individuals for violations of international law? This Chapter examines this question from the perspective of the duty to provide reparations for violations of international law.

Historically, the duty to provide reparation for internationally wrongful conduct has existed in customary international law. Some inter-state agreements and, more recently, human rights mechanisms dealing with human rights violations also establish such duty of reparation. With the development of international criminal law, based primarily on the notion of criminal accountability of individuals, for example, a limited duty of reparation, imposed on persons who are found guilty of crimes within the jurisdiction of the International Criminal Court, has been established.3

The goal of this Chapter is to examine the duty to repair injuries when individuals commit international crimes. However, it does not aim to analyse civil responsibility before international courts and tribunals, but rather, aims to do so through a domestic lense. As such, it discusses the domestic civil responsibility of individuals who have committed or participated in the commission of wrongful conduct which amounts to crimes under international law. Its first section situates the evolving individual responsibility for international crimes in a historical perspective. It then elaborates on individual responsibility for international crimes (within the limited framework of international criminal law), and posits the question of whether there exists a broader duty on individuals to provide reparation (a sort of international civil liability for individuals). Finally, the text discusses the challenges of expanding the reach of individual responsibility for breaches of international law through the commission of international crimes, with a focus on some selected case studies.

The Chapter ultimately claims that international law is evolving towards a broader recognition of individual responsibility in relation to international crimes, one that is expanding beyond criminal accountability. It argues that because, currently, under international law, individuals do not generally have standing to claim reparation before many international courts and tribunals, the most likely forum where individual civil liability for international crimes could develop is before domestic courts.

2 The ‘Individual’ and a Historical Progression of International Legal Responsibility

Although the primary ‘subjects’ of international law have been (and continue to be) states,4 there was an emergence of non-state subjects in international law throughout the twentieth century.5 Without legal capacity generally recognized by states or established by treaty, historically, individuals did not have international legal personality or international legal rights.6

This historical thinking of individual international legal personality has continued to change through a steady progression. First, individuals were recognized as holders of individual criminal responsibility for international crimes they committed. It is now clear that individuals have international (criminal) law obligations.

The development of the role of individuals under international law also occurred in relation to individual rights. For example, the recognition of civil and political rights place the individual as a holder of not only certain obligations, but also, individual rights under international law.

Writing in 2010 for a Symposium on ‘The Human Dimension of International Law: Progress or Stagnation?’, Professor Andrew Clapham pointedly asked: ‘is it not time to admit that, not only do individuals have international rights and criminal law obligations, but perhaps they also have civil law international obligations?’. He clarified however, that this was an ‘admittedly progressive idea’. Does this remain true today? Is the development of such regime still only a ‘progressive idea’? Professor Clapham concluded by suggesting that ‘individuals may have a role to play with regard to respect for international law which goes beyond their international criminal law obligations’.7

Excluding individuals from responsibility for violations of international law is an overly limited view. International law does not exist only for states. International human rights treaties, for example, recognize rights of individuals. Similarly, imposing liability directly on individuals is a natural evolution of recognizing individual legal personality. Imposing responsibility on those who break international legal rules, be they states or individuals, reinforces international law. Furthermore, with the nature of modern armed conflicts, where non-state actors are increasingly involved, limiting responsibility for injuries to states seriously hinders the right of victims to obtain reparation for wrongful acts. This principle is a cornerstone of international law, and is discussed in the next section.

The shift from responsibility for violations of international law that focused purely on states to a framework that included individual accountability started with criminal responsibility. It can be said that the mere advent of international criminal law represents a turning point in the conceptual framework of international law. This paradigm shift is well illustrated by the famous statement of the International Military Tribunal at Nuremberg that ‘crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.8 This statement also demonstrates that, since its inception, international criminal law has focused on the trial and punishment of perpetrators as a means to enforce international law. Individual accountability and punishment has informed the formative stages of international criminal law to hold individual perpetrators accountable for their crimes. Therefore, the shift from state-based responsibility for international wrongs to individual accountability for international crimes marks the development of modern international criminal law.

This development was not, however, complete in terms of dealing with the aftermath of conflicts. Although individual perpetrators were held criminally accountable, civil redress for victims of the crimes perpetrated during the war was left to be resolved through inter-state agreements.9

The focus on the criminal accountability of individual perpetrators, as opposed to a framework that included criminal accountability and civil liability for victim redress (a dimension that would be akin to the traditional state responsibility), in the shaping of the architecture of international criminal law at its formative stages, can be understood in the context of the position of the individual as a subject of international law.10 Thus, at its inception, international responsibility for individuals was focused on the criminal dimension.

Hersch Lauterpacht discussed a purely state-centred approach in the following terms: ‘[t]here is little hope for international law if an individual, acting as an organ of the state, can in violation of international law, effectively shelter behind the abstract and artificial notion of the state’.11 The necessary rationale to shift to a system that includes individuals’ accountability for international crimes was the idea that individuals should not be shielded by the state when assigning responsibility for certain acts, which were ultimately performed by individuals. This had the effect of sometimes creating systems of concurrent state responsibility and individual criminal liability for certain international acts.12 Thus, the focus on retribution and punishment of the perpetrator, in contrast to reparation, at this early stage can be explained by the idea that ‘[individual] punishment, in contrast to [interstate] reparation, satisfies … the need for guarantees against future infractions of the law’.13

The dogma of state sovereignty remained, however, at least as far as reparations for victims were concerned. If there was any claim for reparation from an individual victim, it was for the sovereign state to ‘represent’ its interests, and reparation for international crimes were to be sought from states.14

With an international crime, an internationally wrongful act is committed. By punishing individuals for crimes they committed, the rules of international law are enforced. But limiting this responsibility to the criminal dimension is only partly enforcing international law. It is thus submitted that when individuals commit international crimes themselves, there should be a related responsibility to pay reparation to victims. Much has been written about the international criminal law duties placed on individuals; this Chapter takes a different perspective and looks at whether international law recognizes broader duties, akin to a form of civil liability, when individuals violate rules of international law through the commission of international crimes. The following section turns to the topic of reparations for internationally wrongful conduct.

3 State Responsibility, Individual Liability and the Duty of Reparation in International Law

3.1 The Purpose of Reparations

It goes without saying that reparation may serve a variety of purposes and be based on different theoretical underpinnings.15 A common purpose of reparation is that of remedial justice, which serves to correct the wrong done and rectify injustice by restoring the status quo ante. As Professor Dinah Shelton puts it, this rationale ‘appears to be the basis for most international decisions on reparations, including the Chorzów Factory case’.16 Under this theoretical explanation, the form and extent of reparation could bring about a deterrent factor in future wrongdoing. Another purpose of reparation speaks to restoration of victims and affected communities. The aim is thus to reconcile and restore, as well as to induce positive future behaviour.17

Some aspects of this overview are worth emphasizing. First, the system of reparation can be different depending on its context (i.e. the society where it is applied or the purpose for which it is devised to achieve). This aspect of reparation sheds light on the interconnectedness of victims and offenders, and the community in which they belong. Thus, the theoretical framework for reparation evidences the tight relationship between crimes (wrongful conduct) and civil redress (reparation), perpetrators and victims, the past and the future. It also exposes the weaknesses of the compartmentalised study of different fields of international law, in parallel, and with different aims, even though in essence they often pertain to the same conduct. It is not claimed that inter-state civil reparation is not satisfactory or that it is an inappropriate way to repair internationally wrongful conduct. The focus here is different: rather, it posits that individuals who commit international crimes should also be liable to provide reparation.

3.2 The Duty to Make Reparation under International Law

The principle underlying the legal duty to make reparation18 is that every breach of an international obligation carries with it a duty to repair the harm caused by the breach.19 This traditional conception of reparation has been applied in the jurisprudence of many international courts20 and tribunals such as the International Court of Justice (icj),21 regional human rights courts, and other human rights bodies,22 arbitral tribunals,23 claims tribunals and commissions.24 Some treaties establish the responsibility of states to provide reparation when there is a breach of a treaty obligation.25 The principle that a state has a duty to make reparation for internationally wrongful acts (including international crimes) has been codified in Article 31 of the 2001 International Law Commission Articles (ilc Articles), which reads as follows: ‘[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’.26

The responsibility of individuals, on the other hand, to provide reparation for any internationally wrongful conduct is not settled under international law. Unlike state responsibility, which is the object of the 2001 ilc Articles, individuals’ liability for violations of international law has not been clarified by the International Law Commission. Article 58 of the ilc Articles states that ‘[t]hese articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State’. The Commentary clarifies that ‘[s]o far this principle has operated in the field of criminal responsibility, but it is not excluded that developments may occur in the field of individual civil responsibility’.27 Moreover, and importantly, treaties are often concluded between states and/or international organisations. Therefore, generally, international conventions regulate conduct by states and do not necessarily address individuals’ acts. There thus exists an inherent limitation with regards to a progressive development of individual civil liability for wrongful conduct under international law.

In constrast, in relation to international wrongful conduct that amount to international crimes, Article 75 of the Rome Statute establishes that persons convicted of international crimes before the International Criminal Court (icc)28 may be ordered to pay reparations to victims.29 Before the adoption of the Rome Statute and the establishment of the icc, victims had a very limited ability to claim reparations within international criminal proceedings. A Trust Fund for Victims (tfv) was created within the reparations framework at the icc specifically to provide assistance and reparations for victims. The tfv has an important role in the implementation of the Court’s reparations mandate. The Trust Fund was established by the Assembly of States Parties in accordance with Article 79 of the Rome Statute, which reads as follows:

(1) A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.

(2) The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.

(3) The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.

The icc’s conception of international justice includes reparation and criminal accountability. The interconnectedness of both is a feature of the system: for example, reparation can only be claimed from an accused who is convicted (Article 75 (2) of the Rome Statute). At the icc, the link between the criminal and reparative dimensions of international law is such that there is the creation of a sui generis system. A system where the reparative dimension is not completely and entirely dissociated from the criminal one.

The icc is not however, open to all victims to claim reparations against individuals who have committed international crimes. The Court is limited in its jurisdiction, and if a crime does not fall within the jurisdiction of the Court, and an accused is not found guilty at the end of a trial, victims cannot obtain reparation at the icc.

Finally, beyond the icc framework, national law, whether inspired or not by international legal norms, may impose obligations of compensation, or more broadly, reparation, on individuals who commit wrongful acts under tortious or civil liability.

4 From State Responsibility to Individual Accountability: Fostering Civil Redress in Domestic Courts

International legal proceedings, which are mostly inter-state, illustrate international law’s focus on state responsibility in relation to internationally wrongful conduct. In light of this, an obvious alternative forum would be domestic courts applying international legal principles and norms to establish individuals’ liability for an internationally wrongful act amounting to an international crime.

Claims for reparation for conduct that would constitute a violation of international law may be made before the national courts of some states (depending on the legal system, through the application of international law directly or because international law has been incorporated into domestic law). Bringing claims before domestic courts may provide an avenue for victims to obtain redress for violations they have suffered. Additionally, in cases where bringing a civil suit is not possible or desirable, in many civil law countries, victims may participate in prosecutions as parties civiles, and seek reparation within criminal proceedings.30 Nevertheless, more needs to be done for victims to be able to truly benefit from national claims and domestic proceedings in countries torn apart by war.

One way international mechanisms can foster domestic initiatives is by adopting appropriate legislation. For example, states parties to the icc, in implementing the Rome Statute, may adopt laws that will provide a possibility for victims of international crimes to seek redress in their jurisdiction. This would counter the practical difficulty experienced by victims who cannot turn to their own domestic courts for civil claims because victims’ redress is not available owing to a lack of legislation, legal tools or institutions.

This section discusses the rationales for fostering an active role for domestic courts in the award of reparation for internationally wrongful acts. One justification for fostering a greater role for domestic courts relates to the scarcity of appropriate international mechanisms and their limited authority (owing to jurisdiction or temporal limitations). National courts are already in place – i.e. they do not need to be devised to deal specifically with cases of reparation for victims of international crimes; the judicial machinery already exists. Civil recovery for wrongful conduct already exists in some form under domestic laws, eliminating the time and resources required to create a special apparatus to deal with reparation claims.

Another advantage of using domestic courts comes from their proximity to the witnesses and the evidence. These logistical considerations affect the conduct of proceedings. National courts in the areas where international crimes were committed could, in theory, be in a privileged position to deal with claims for reparation: they are the closest forum for victims.

Be that as it may, it is not always straightforward for victims to rely upon national courts for the purposes of seeking reparation. The first important challenge relates to a lack of judicial independence or functioning judicial institutions capable of entertaining reparation claims. Corruption of judicial institutions may be connected to, among other things, the involvement of political authorities in the wrongful conduct which is the object of the proceedings.

Finally, in post-war societies, the judicial machinery has often failed, making not only prosecutions, but also civil redress difficult, if not impossible, to obtain in domestic courts. Without domestic institutions able to address internationally wrongful conduct and corresponding civil liability, victims are often left with no domestic avenue to pursue. Even if a victim is successful in a domestic forum, she is confronted with the practical difficulties of enforcing domestic decisions against an accused who is outside the country where the crimes were committed, or when the accused’s assets are outside the country.

This section will turn to a discussion of some selected cases around the world where individuals have sought reparation for violations of international law in domestic courts in order to examine whether there is an emerging norm of individual civil responsibility. The focus is on cases against individuals alleged to be guilty of international crimes during the former Yugoslav wars, and on cases claiming redress for international crimes. These cases do not purport to represent the position of all states in relation to individual civil responsibility, and they by no means represent the current state of international law in this field. They may however, point to a trend in some states whereby individuals are held liable for conduct that could be considered a violation of international law.

A review of selected cases is illustrative of the scope and challenges of adjudicating claims of individual responsibility for internationally wrongful conduct before domestic courts. A relevant starting point for the analysis are cases brought before the United States under the Alien Tort Statute (ats),31 which provides that that ‘[t]he district courts shall have 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 States’. Additionally, the Torture Victims Protection Act (tvpa) provides a cause of action for any victim of torture and extrajudicial killing, wherever the crime was committed.32

Domestic courts outside of Bosnia and Herzegovina33 have heard reparation claims from victims of the crimes perpetrated during the Balkans war (1991–2001).34 Interestingly, many of the cases were filed in US courts, starting in the 1990s. Two of these cases, both of which concluded in default judgments in the 1990s, were brought against Radovan Karadzić.35 The alleged crimes for which the victims sought compensation included: ‘genocide, rape, forced prostitution and impregnation, torture and other cruel, inhuman, and degrading treatment, assault and battery, sex and ethnic inequality, summary execution, and wrongful death’.36 The United States Court of Appeals for the Second Circuit reversed the decision of the first instance court, and found that there was subject-matter jurisdiction under the ats for a violation of the law of nations committed by a non-state actor, such as the defendant, Mr Karadzić. The court thus decided that individuals could be held liable for international crimes such as genocide and war crimes37 and that victims could bring a suit against the perpetrator claiming redress for such violation. The jury awarded a total of US$745 million to the 14 plaintiffs (US$265 million in compensatory damages and US$480 million in punitive damages).38

In another example, in 1998, a case was brought before a US court by four refugees from Bosnia-Herzegovina against Nikola Vucković, a Bosnian Serb soldier.39 The claimants sought compensation and punitive damages for allegations of crimes committed against them during the course of the conflict. The claimants brought the case under both the ats and the tvpa. They claimed they were victims of arbitrary detention, torture and abuse allegedly committed against Bosnian Muslims and Croats, and the forced relocation of Bosnian Muslim and Croat families living in the municipality of Bosanski Samac in Bosnia and Herzegovina. The court found in favour of the claimants, and awarded them US$10 million each in compensatory damages and US$25 million each in punitive damages.40

The question is whether the symbolic value of these judgments is sufficient when the enforcement of the award does not follow. There were many other people accused in the Balkans wars but there were relatively few civil suits brought in domestic courts. There are certainly many hurdles to bring cases of this magnitude. In the end, when examining civil suits before domestic courts, it is important to bear in mind that the ultimate goal is often more symbolic than financial, since monetary awards are difficult to enforce.

While the examples noted above were brought against individuals who committed internationally wrongful acts (that is, international crimes), it should be noted, however, that the majority of cases that have relied on the ats concern corporate liability rather than individual civil responsibility.41 Despite the fact that in the past decades there have been a great number of cases concerning torts committed outside the United States that have relied on the ats,42 a notable, more recent case before the Supreme Court of the United States has changed the future of ats litigation.43 In 2013, the US Supreme Court decided the case Kiobel v. Royal Dutch Petroleum,44 which dealt with allegations that Shell entities planned, conspired and facilitated extrajudicial executions, torture and crimes against humanity with Nigeria in the Niger Delta between 1992 and 1995. Although this case dealt with corporate civil liability, it also has implications for the development of civil liability concerning internationally wrongful acts committed by individuals. The Supreme Court ultimately decided that the ats could not be applied in civil suits to acts committed outside of the United States. According to the Court, claims under the ats cannot be brought before federal courts in the United States for violations of the law of nations occurring within the territory of a sovereign state other than the United States.45 The Supreme Court’s decision thus closed the extraterritoriality door of ats suits. However, the Court ‘left the door open to claims that sufficiently ‘touch and concern’ the United States’.46

Outside the United States, in 2012, a Dutch court awarded reparation in the form of compensation to a Palestinian doctor who was imprisoned in Libya for allegedly infecting children with hiv/aids.47 The claimant argued that he was unjustly detained and tortured by the defendants. The claimant, born in Egypt, who resided in The Netherlands, sued 12 Libyan officials pursuant to Dutch law. The plaintiff sought both material and non-material damages.48 Before the first instance court in The Hague, as the case was of an international character, it had to be determined whether the Dutch court had jurisdiction. The alleged basis for jurisdiction was Article 9(c) of the Code of Civil Procedure. Article 9(c) states that jurisdiction is found when a case is ‘sufficiently connected with the Dutch legal order’ and when ‘it would be unacceptable to ask of the plaintiff that he bring the case before a foreign court’. The Court found jurisdiction on the basis that it was unacceptable to require the claimant to take the case before a court in Libya, considering the circumstances in Libya at the time of the initial filing of the case (in July 2011), and since the claimant was a resident in The Netherlands.49 While this decision was a judgment of a first instance court without much substantive analysis, including a lack of substantive discussion of issues of state immunity, it is a recent and insightful example of the use of domestic laws and procedures to enforce individual liability for international crimes: in this case, the crimes were committed abroad and the victim and alleged perpetrators were not nationals of the forum state.

The first case in Europe in relation to the Balkan wars took place in France, before the Tribunal de Grande Instance. The case concerned allegations of crimes committed during the Bosnian war by Bosnian Serb defendants Radovan Karadzić and Biljana Plavsić. The Court ordered R. Karadzic and B. Plavsić to pay €200,000 to the victims as reparation.50

Another case was brought before Norwegian courts. A series of decisions from the District Court of Oslo (lower court) culminated in the 2010 decision of Norway’s Supreme Court against former member of the Croatian Armed Forces, Mirsad Repak. He was a guard in the Dretelj detention camp in Bosnia and Herzegovina, and had been allegedly involved in the arrest, unlawful detention and torture of civilian non-combatants. The defendant was found guilty and sentenced to imprisonment, and the victims were awarded reparations valued between €4,000 and €12,000.51

In Sweden, like in Norway, a district Court in Stockholm convicted another Dretelj camp officer, Mr Ahmet Makitan, for participating in the abuse of 21 Serb civilian prisoners. He was sentenced to 5 years in prison. In addition to the prison sentence, the defendant was also ordered to pay 1.5 million Krona (approximately € 170,000) in the form of compensation to victims.52

These examples of cases across the United States and Europe demonstrate that domestic courts, even in states outside the region where the crimes occurred, have indeed played a role in imposing civil responsibility on individuals for violations of international law, generally involving serious human rights violations or international crimes. It is also interesting to note that victims often turned to foreign courts after it had become clear that they would not be able to settle their case within their own countries.53

5 Liability Beyond State Responsibility?

International law may be slowly moving beyond a perspective of exclusive state responsibility for violations of international law, without however, absolving the state. Individuals are increasingly recognized as subjects of rights under international law; further developing individual responsibility is the next frontier.

States are no longer the only potential violators of rules of international law; individuals can also do so. International law has evolved from a time when only states had international legal personality and could be held responsible for violations. Individuals have slowly acquired a role in international law and now can be held responsible for international crimes. This Chapter has reviewed selected case law that pushes the boundaries of this development, where individuals have been held liable for reparations in relation to international crimes. In the wake of heinous conduct, the international community should, in addition to punishing the offender, have victims’ rights in mind through individual civil (reparative) liability. In this sense, criminal and reparative duties in the aftermath of internationally wrongful acts cannot be completely dissociated.

There are many challenges to fully establishing a framework of individual responsibility for violations of international law that go beyond criminal law accountability. Furthermore, finding the appropriate forum for individuals to be held liable and the enforcement of judgments against individuals are two crucial obstacles. Nevertheless, these hurdles should not be fatal to the development of a framework of individual responsibility.

The global order is changing; it is more relevant than ever to bear in mind that states are abstract entities. Individuals violate rules of international law, whether or not they are acting for the intangible concept that is the state. By developing a regime where individuals can be held liable toward victims, rules of international law can be enforced. It may well be that only through the attribution of responsibility to both individuals and states, as the case may be, international norms can be fully enforced, and violations of international law can be repaired.

Acknowledgement

The author wishes to sincerely thank the Canadian Council on International Law for financial support, and the organizers and participants of the 2018 Four Societies of International Law Conference, as well as the editors of this volume, for invaluable comments on an earlier version of this Chapter. All errors are of course my own.

1

See Shima Baradaran Baughman, Michael Findley, Daniel Nielson et al, ‘Does International Law Matter?’ (2013) 97 Minnesota Law Review, 743.

2

Trials that took place in Nuremberg, Germany in 1945 and 1946 for twenty-two major Nazi criminals presided over by judges from the Allied powers. Twelve prominent Nazi criminals were sentenced to death.

3

Reparations for international crimes also exist within the realm of the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’).

4

J. H. Currie, V. Oosterveld, C. Forcese et al, International Law: Doctrine, Practice, and Theory (Irwin Law, Toronto, 2014), 180.

5

James E. Hickey Jr., ‘The Source of International Legal Personality in the 21st Century’ (1997) 2 Hofstra L. & Pol’y Symp., 1, at http://scholarlycommons.law.hofstra.edu/faculty_scholarship/563 (accessed 04/01/20).

6

Ibid.

7

Andrew Clapham, ‘The Role of the Individual in International Law’ (2010) 21 European Journal of International Law, 25, 30.

8

Trial of Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946 (International Military Tribunal, Nuremberg, 1947), 223.

9

Indeed, according to Ariel Colonomos and Andrea Armstrong: ‘[t]raditionally, reparations were part of the framework of relations between nations following a conflict and obligated the losing State to compensate damages incurred by its opponents during the course of the war’. See Ariel Colonomos and Andrea Armstrong, ‘German Reparations to the Jews after World War II:A Turning Point in the History of Reparations’, in Pablo de Greiff (ed), Handbook of Reparations (Oxford University Press, Oxford, 2006) 390. See Richard Lillich and Burns H. Weston, International Claims: Their Settlement by Lump-Sum Agreement (University Press of Virginia, Charlottesville, 1975).

10

For an analysis of reparations for international crimes, see Miriam Cohen, Realizing Reparative Justice for International Crimes: from Theory to Practice (Cambridge University Press, 2020). Even prior to the Second World War, John Westlake had stated that ‘the same tone of thought will again be evil if it allows us to forget that (…) the action of our State is that of ourselves’. John Westlake, The Collected Papers of John Westlake on Public International Law, edited by Lassa Oppenheim (Cambridge University Press, Cambridge, 1914) 411.

11

Hersch Lauterpacht, ‘Règles générales du droit de la paix (General Rules of Peace Law)’ (1937) 62 Recueil des Cours 62, 351 (translation).

12

In fact, a rich body of scholarship discusses the concurrence between State responsibility and individual accountability for international crimes. For examples of when such concurrent responsibility may occur, see Andre Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility in International Law’ (2003) 52 International and Comparative Law Quarterly, 615, who cites emerging work in this field; Pierre-Marie Dupuy, ‘International Criminal Responsibility of the Individual and International Responsibility of the State’, in Antonio Cassese, Paola Gaeta, John R.W.D. Jones, The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press Oxford, 2002), 1085–1100; Hazel Fox, ‘The International Court of Justice’s Treatment of Acts of the State and in Particular the Attribution of Acts of Individuals to States’ in Nisuke Ando, Edward McWhinney, Rudiger Wofrum et al, Liber Amicorum Judge Shigeru Oda, (Kluwer Law International, The Hague, 2002), 147; Marina Spinedi, ‘State Responsibility v Individual Responsibility for International Crimes: Tertium Non Datu’ (2002) 13 European Journal of International Law, 895; Malcolm Evans, ‘International Wrongs and National Jurisdiction’ in Malcolm Evans (ed), Remedies in International Law: The Institutional Dilemma (Hart Publishing, London, 1998), 173; Otto Triffterer, ‘Prosecution of States for Crimes of State’ (1996) 67 Revue Internationale de Droit Pénal, 341.

13

Hersch Lauterpacht, note 11, 351.

14

Ariel Colonomos and Andrea Armstrong, note 9, 390.

15

The aim of this Chapter is not to examine or discuss the purpose of reparations specifically in international law.

16

See, generally, Dinah Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’ (2002) 96 American Journal of International Law, 833.

17

See generally on theories of restorative justice: Daniel W. Van Ness and Karen Heetderks Strong, Restoring Justice, 2nd edition (Routledge, London, 2002); Heather Strang and John Braithwaite, Restorative Justice And Civil Society (Cambridge University Press, Cambridge, 2001); Gerry Johnstone, Restorative Justice: Ideas, Values, Debates (Willan, Oxford, 2002).

18

See Miriam Cohen, note 10. On the duty of reparation for wrongful conduct under international law, see generally Paul Fauchille, Traité de Droit international public, vol. I part. I (Treatise of Public International Law, Vol. I Part I) (Libr. A. Rousseau Éd., Paris, 1922), 515; Ladislas Reitzer, La réparation comme conséquence de l’acte illicite en droit international (Reparation as the Consequence of the Illicit Act in International Law) (Libr. Rec. Sirey, Paris, 1938), 30; Jean Personnaz, La réparation du préjudice en droit international public (Reparations in Public International Law) (Libr. Rec. Sirey, Paris,1939), 53–60; Hildebrando Accioly, “Principes généraux de la responsabilité internationale d’après la doctrine et la jurisprudence (General Principles for International Responsibility According to Doctrine and Jurisprudence)” (1953) 96 Recueil des Cours de l’Académie de Droit International de La Haye, 415.

19

See Dinah Shelton, note 16, 835.

20

See, for example, M/V ‘Saiga’ (No. 2) (Saint Vincent and the Grenadines v. Guinea), itlos Reports 1999, [170].

21

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, i.c.j. Reports 1949, p. 184; Case concerning Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, i.c.j. Reports 1997, p. 81, [152]; Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, i.c.j. Reports 2004, p. 59, [119]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, i.c.j. Reports 2004, p. 198 [152]; Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, i.c.j. Reports 2005, p. 257 [259]; Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, i.c.j. Reports 2007, pp. 232–233, para. 460; Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, i.c.j. Reports 2010, p. 77 [273–274]; Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment, i.c.j. Reports 2010, p. 48 [161].

22

See Judgment of the Inter-American Court of Human Rights (IACtHR), Velásquez-Rodríguez v. Honduras, Merits Judgment, 29 July 1988, para. 174; see also Judgment of the European Court of Human Rights (ECtHR) Papamichalopoulos and Others v. Greece, Application No. 14556/89, Judgment, 31 October 1995, E.Ct.H.R., Series A, No. 330-B, para. 36.

23

See, for example, Judgment of the International Centre for Settlement of Investment Disputes (icsid) LG&E Energy Corp., LG&E Capital Corp., LG&E International Inc. v. Argentine Republic, Case No. arb/02/1, Award of 25 July 2007, i.c.s.i.d. at http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C208/DC786_En.pdf (accessed 29 January 2020), para. 31; Judgment of the International Centre for Settlement of Investment Disputes (icsid) ADC Affiliate Limited and ADC & ADMC Management Limited v. Republic of Hungary, Case No. arb/03/16, Award of 2 October 2006, i.c.s.i.d., para. 484.

24

See, for example, Eritrea-Ethiopia Claims Commission, Eritrea’s Damages Claims Between the State of Eritrea and the Federal Democratic Republic of Ethiopia, Final Award (2009), available at https://www.refworld.org/cases,EE_COM,4a9503dd2.html pp. 7–8, para. 24; Eritrea-Ethiopia Claims Commission, Ethiopia’s Damages Claims Between the State of Eritrea and the Federal Democratic Republic of Ethiopia, Final Award (2009), available at https://www.refworld.org/cases,EE_COM,4a95032c2.html, p. 8, [24]; Amoco International Finance Corporation v. The Islamic Republic of Iran et al., Partial Award No. 310-56-3 of 14 July 1987, 15 Iran-United States Claims Tribunal Reports 189, [189–206].

25

For a review of treaties in international humanitarian law and instruments in other fields that recognize a duty to make reparations, see discussion and references in Emanuela-Chiara Gillard, ‘Reparation for Violation of International humanitarian Law’ (2003) 85 IRRC, 529–553, available at https://www.icrc.org/en/doc/assets/files/other/irrc_851_gillard.pdf (accessed 04/01/20).

26

Paragraph 2 of Article 31 defines ‘injury’ as: ‘any damage, whether material or moral, caused by the internationally wrongful act of a State’.

27

Yearbook of the International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001), at http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf, 142 (accessed 04/01/20).

28

Gibert Bitti and Gabriela González Rivas, ‘Reparations Provisions for Victims Under the Rome Statute of the International Criminal Court’, in Permanent Court of Arbitration, Redressing Injustices Through Mass Claims (International Bureau of the Permanent Court of Arbitration, The Hague, 2006), 301.

29

See Gioia Greco, ‘Victims’ Rights Overview under the icc Legal Framework: A Jurisprudential Analysis’ (2007) 7 International Criminal Law Review, 531; Carla Ferstman and Mariana Goetz, ‘Reparations before the International Criminal Court: The Early Jurisprudence on Victim Participation and its Impact on Future Reparations Proceedings’ in Carla Ferstman, Mariana Goetz and Alan Stephens (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, Systems in Place and Systems in the Making (Nijhoff, Leiden, 2009), 313.

30

See, generally, Mireille Delmas-Martry and John Spencer, European Criminal Procedures (Cambridge University Press, Cambridge, 2002). Victims may also in some cases seek reparation from a civil fund, as for example, in France, where victims of some violent crimes may obtain compensation from the State through a solidarity fund where offenders do not have the necessary funds, Criminal code of France, Arts. 706-3. See also in Québec: Act respecting assistance and compensation for victims of crime, cqlr c A-13.2.1.

31

28 U.S.C. § 1350 (ats). See Stephen P. Mulligan, ‘The Alien Tort Statute (ATS): A Primer’, 2018 Congressional Research Service, crs Report, available at: https://fas.org/sgp/crs/misc/R44947.pdf (accessed 04/01/20) (explaining that ‘[a]lthough it is only a single sentence long, the ats has been the subject of intense interest in recent decades, as it evolved from a rarely used jurisdictional statute to a prominent vehicle for foreign nationals to seek redress in U.S. courts for human rights offenses and acts of terrorism’), p.1.

32

Pub. L. 102–256, 12 March 1992, 106 Stat. 73, in particular Section 2(a) of the tvpa.

33

See a discussion of the cases in Miriam Cohen, note 10, chapter 5. These cases are examined in detail in the chapter by Frederiek de Vlaming and Kate Clark, ‘War Reparations in Bosnia and Herzegovina: Individual Stories and Collective Interests’, in Dubravka Zarkov and Marlies Glasius (eds), Narratives of Justice In and Out of the Courtroom: Former Yugoslavia and Beyond (Springer International Publishing, New York, 2014), 167.

34

See Carla Ferstman and Sheri P. Rosenberg, ‘Reparations in Dayton’s Bosnia and Herzegovina’ in Carla Ferstman, Mariana Goetz and Alan Stephens (eds), note 29, 483, 484–485.

35

Kadic v. Karadzić, 70 F.3d 232 (2d. Circ. 1995), cert. denied, 518 US 1005 (1996). For a commentary, see David P. Kunstle, ‘Kadic v. Karadzic: Do Private Individuals Have Enforceable Rights and Obligations Under the Alien Tort Claims Act?’ (1996) 6 Duke Journal of Comparative & International Law, 319.

36

Cf. Kadic v. Karadzić, 70 F.3d, 232.

37

Ibid, 241–43. It is important to note that this decision was rendered prior to Kiobel v. Royal Dutch Petroleum. See text in note 44.

38

Kadic v. Karadzić, No. 93 Civ. 1163, judgment (August 16, 2000).

39

Mehinovic, Kemal, et al. 2009 v Nikola Vuckovic, Civil Section 1:98-cv-2470-mhs us District Court, Northern District of Georgia, 29 July 2009.

40

Ibid.

41

For a list of ats cases concerning corporations, see Michael D. Goldhaber, ‘Corporate Human Rights Litigation in Non-U.S. Courts: A Comparative Scorecard’ (2013) 3 UC Irvine Law Review, 127, Appendix A (list of cases compiled by Jonathan Drimmer concerning corporate cases).

42

Ibid.

43

Anna Su, ‘Rise and Fall of Universal Civil Jurisdiction’ (2019) 41 Human Rights Quarterly, 849.

44

133 S. Ct. 1659 (2013). Not long after the Judgment of the Supreme Court was rendered, many scholars commented on it, see e.g. Janine M. Stanisz, ‘The Expansion of Limited Liability Protection in the Corporate Form: The Aftermath of Kiobel v. Royal Dutch Petroleum Co.’ (2010) 5 Brooklyn Journal of Corporate, Financial & Commercial Law, 573 (a commentary before the Supreme Court Judgment); Frank Cruz-Alvarez and Laura E. Wade, ‘The Second Circuit Correctly Interprets the Alien Tort Statute: Kiobel v. Royal Dutch’ (2010) 65 University of Miami Law Review, 1109 (a piece before the Supreme Court Judgment).

45

Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013).

46

Anthony J. Colangelo, ‘The Alien Tort Statute and the Law of Nations in Kiobel and Beyond’ (2013) 44 Georgetown Journal of International Law, 1329.

47

El-Hojouj c. Amer Derbas et al., 21 mars 2012, Case No. 400882/ha za 11–2252. See also, ‘Dutch court compensates Palestinian for Libya jail’ 28 March 2012, BBC News at: http://bbc.co.uk/news/world-middle-east-17537597 (accessed 04/01/20). For a commentary, see Eugene Kontorovich, ‘Kiobel (IV): Precedent-setting Dutch Civil Universal Jurisdiction Case’ 28 March 2012, Opinio Juris at: http://opiniojuris.org/2012/03/28/precedent-setting-dutch-civil-universal-jurisdiction-case/ (accessed 18/12/19).

48

The analysis of this case is based on an unofficial translation of the Judgment (original in Dutch).

49

El-Hojouj c. Amer Derbas et al., 21 mars 2012, Case No. 400882/ha za 11–2252.

50

See Ann Riley, ‘France court awards Bosnia civil war victims damages for injuries’ 14 March 2011, Jurist at: https://www.jurist.org/news/2011/03/france-court-awards-bosnia-civil-war-victims-damages-for-injuries/; Rachel Irwin, ‘Civil actions offer some closure for Bosnia victims’, 26 April 2011, Institute for War and Peace Reporting (IWPR) at: https://reliefweb.int/report/bosnia-and-herzegovina/civil-actions-offer-some-closure-bosnia-victims (cited by Frederiek de Vlaming and Kate Clark, ‘War Reparations in Bosnia and Herzegovina: Individual Stories and Collective Interests’ in Dubravka Zarkov and Marlies Glasius (eds), note 33, 170).

51

For all judgments, see The Public Prosecuting Authority vs Mirsad Repak, Oslo District Court case no: 08-018985MED-OTIR/08, 2 December 2008 (https://www.asser.nl/upload/documents/DomCLIC/Docs/NLP/Norway/Repak-Mirsad_Verdict_EN_2-12-2008.pdf); Borgarting Lagmannsretten, Court of Appeal, Judgement of 12 April 2010; Supreme Court of Norway Judgement, case no. 2010/934, 3 December 2010.

52

Stockholms Tingsrätt (Stockholm District Court), case no. B 382-10, 8 April 2011, at: http://icc.amnesty.se/media/Sthlms%20TRs%20dom%20110408.pdf (in Swedish), cited in Frederiek de Vlaming and Kate Clark, note 33, 172.

53

Frederiek de Vlaming and Kate Clark, note 33, 174.

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