Abstract
States have been increasingly engaging in a practice of ex gratia payments during armed conflict as a way to win ‘hearts and minds’ or mitigate local animosity from combat operations that cause civilian loss or damage. These represent voluntary payments for damages which are not the result of a violation of the laws of war. This practice provides a contrast to reparations, which are the result of a legal obligation to remedy breaches of law. This article critically assesses how these two concepts interact with each other. Analysing the current practice, this work argues that ex gratia payments can represent another barrier for victims seeking redress. Crucial here is that these payments are seen as both an explicit and implicit waiver of any future claims. This ignores the potential for synergy between the two concepts on both moral and operational grounds. To better facilitate this potential synergy, this article takes inspiration from some of the human rights jurisprudence surrounding reparations programs and considers ex gratia payments in light of their standards instead of accepting them as a blanket waiver. This would align these payments better with both the operational and moral imperatives underlying these payments.
1 Introduction
On the 29th of November 2005, an Iraqi civilian vehicle moved to the side to let a US convoy pass. Perceiving the car to be hostile, the US convoy opened fire on the vehicle. This led to the death of two civilians, two brothers. Their sister was compensated with 5,000 dollars.1 This compensation was not based on a violation of the law. Instead, this represented a so-called ex gratia payment. Whereas these payments have been around in some form since the Korean conflict, they have recently become more widespread.2 The prime example in this regard was the counterinsurgency effort in Afghanistan,3 where the US and coalition partners engaged in this practice to achieve the overall goal of winning the hearts and minds of the local population.4
Within these conflicts, ex gratia payments represent tools for commanders to compensate damage to civilians which is not the result of a violation. This follows from the fact that International Humanitarian Law (ihl) does not prohibit civilian harm as such, as long as the rules and principles of ihl are complied with, including the principles of distinction, proportionality and precautions.5 It is based on the fact that ihl only bans certain actions, or in the words of Meron, ‘As in a boxing match, pummelling the opponent’s upper body is fine; hitting below the belt is proscribed.’6 In a similar fashion, the legality of an action under ihl is judged ex-ante and not ex-post. Or, the fact that civilians might have died as a result of military force does not necessarily mean such an action was illegal. Yet, in practice, many states have still chosen to compensate for this non-illegal damage through the use of ex gratia payments.
An airstrike which killed civilians and where there may be questions over the precautionary measures or proportionality assessment undertaken – and therefore the lawfulness of the strike – may however also result in a state offering an ex gratia payment … the line is often blurred between no-fault compensation for losses incurred as a result of a lawful attack and losses incurred as a result of a violation of ihl, which imposes duties on states to offer full reparation.8
Due to a lack of evidence, states might initially offer compensation through an ex gratia payment. In a similar way, a state might believe that the attack was proportional and that the damage to civilians was not the result of an illegal act. Later evidence might however demonstrate that the harm done to civilians was in fact the result of a violation of ihl. This would make the state liable for compensating the harm through reparations.
Whereas reparations and ex gratia payments are both based on a conception of compensating for harm done, they do so on a different basis. Ex gratia payments are often seen as a tool, whereas reparations are the result of a legal obligation. In a similar way, reparations must be made in full, whereas no such demand exists for ex gratia payment.9 This article is interested in exploring the relationship between the two concepts. It aims to offer a theoretical exploration of how, within international law, such an initial payment would be perceived by courts and what this entails for the subsequent right to reparations.
In doing so, this work will mainly focus on the theoretical and legal difficulties that victims face when trying to present their claims. This is not to say that victims do not face a multitude of practical challenges. In many cases, it might simply not be possible for individuals to claim compensation before a court and an ex gratia payment might represent their best possible option. There might be an unwillingness to further investigate, and a lack of evidence or evidence that can be found does not satisfy the legal requirements. Victims might also not have access to courts or be unable to afford the travel and legal representation costs. Despite these difficulties, some cases have begun to arise before courts, highlighting the relevance of the current theoretical question.
This work will start with a consideration of the practice of ex gratia payments. After this, an analysis of the state of reparations within ihl will follow. From this analysis, it will be concluded that by purely relying upon ihl, it is difficult to argue for a general right for individuals to claim reparations. Instead, individuals are often dependent on national jurisdictions. Some brief examples of claims within these national jurisdictions will then be offered. After having explained both the general concepts of this article, the emphasis will shift toward the interaction between the two concepts. Relying upon the established case law surrounding waivers for violations of ihl, this work would argue that using ex gratia payments as a form of settlement, precluding future claims, is not manifestly illegal.
Having set out these theoretical considerations, this article then moves to offer an alternative interpretation. This argument will be supported by a reference to the similar moral underpinnings of both reparations and ex gratia payments.10 Relying upon the notion that it would be unethical to let victims shoulder all of the consequences, it will be argued that the perception of ex gratia as a settlement precluding further claims might not be constructive.11 This is further supported by the operational incentive of both these concepts, in which they represent forms through which armed forces ‘maintain friendly relations with and the support of local populations’.12 It is argued that ex gratia currently represent another theoretical obstacle to overcome, which hampers a potential synergy between reparations and ex gratia payments.13
Relying on the case law of the Inter-American Court of Human Rights (IACtHR), it is argued that a more productive approach might be found when considering the legal reasoning within human rights. The case law of the IACtHR is chosen as this Court has an extensive case-law regarding situations in which reparations have been awarded through not necessarily legal programs. Here, it is accepted that an initial payment does not preclude a subsequent claim for reparations. Applying such reasoning to ex gratia payments would offer a better synergy between the operational and moral underpinnings of these payments. In this way, ex gratia can be changed from a potential barrier to immediate relief. It would then also not hinder the possibility of obtaining legal reparations at a later stage and would still allow for a substantial consideration of reparations in these cases.
2 Ex Gratia Payments
During the First World War, the American forces abroad ran into issues with the local French population as damages caused could not be compensated, lacking a legal or political basis. This made it difficult for the American presence to be seen as something positive, as damage caused by incidents such as car accidents led to dissatisfaction amongst the local population. To address this, the US Congress implemented ‘An Act to give indemnity for damages caused by American forces abroad’,14 which enabled American forces to compensate for any damages according to local law.15 This represented the first form of practice in which payments were used to engage with the local population. Ultimately, this led to what became the Armed Forces Damages settlement act being implemented in 1941, 16which allowed for claims up to 1,000 US Dollars for damage to persons or property caused by the US armed forces.17 In a similar way to ex gratia payments, this act had the explicit goal of promoting ‘friendly relations with foreign countries in which we may have military or naval forces’.18
After the Second World War, the US Congress adopted the Foreign Claims Act in 1956 as a permanent law to allow payments for losses and damage caused by US forces abroad.19 Under the Foreign Claims Act, the US Secretary of Defence is allowed to appoint claims commissions which may settle up to 100,000 usd in non-combat-related damages.20 However, any claims from combat-related actions were excluded. This created a situation where minor non-combat-related accidents, such as a soldier crashing into a building, would be compensated, but military accidents, such as the displacement of a bomb leading to civilian deaths and damages would not be liable for any compensation.
As conflicts changed from mainly inter-state ones to colonial wars and non-international armed conflicts, states saw a need to address this gap. As ‘battles are rare and territory is captured through political means, through control of the population’,21 states started embracing mechanisms that would allow them to positively engage with the local civilians. One of the ways in which they did so was by not letting these civilians cover damages caused by military action on their own. This led to a new practice developing from the initial payment programs, and led to states setting up broader compensation programs.
Most notably, states also started compensating combat-related damages. An example of this is the US Commander’s Emergency Response Program which ‘authorizes commanders to provide symbolic “gifts” for death, injury, or battle damage caused during US military combat operations’.22 These funds are specifically used for cases of battle damage which would otherwise not be reimbursed, relying upon an exclusive source of funding.23 Other western states have also embraced this. Development has mainly taken place with reference to the Afghanistan conflict, where nato doctrine stated that ‘Local customs and norms vary across Afghanistan and should be fully taken into account when determining the appropriate response to a particular incident, including for potential ex gratia payments’.24 This practice was widely adopted by the states present there. States often appointed a specific officer who would be authorized to handle claims from the local population and pay them compensation. Here it is often emphasised that these payments do not admit any legal liability.25
This developing practice is however not exclusively tied to the actions of the US. The Netherlands has also engaged in voluntary payments in recent conflicts. An example of this was visible in Mosul, in which an individual was compensated for damages as a result of a Dutch bombardment. No legal responsibility was admitted, though.26 In Hawija, where individuals were harmed as the result of a Dutch bombardment on an isis Improvised Explosive Device (ied) factory, the Dutch state engaged in a community project to improve living conditions.27 Individuals have, however, still attempted to hold the Dutch state legally responsible for the damages caused here; the Court is yet to pronounce a judgment.28 In a similar case, individuals have attempted to hold the Dutch state responsible for the use of force within Chora after initially having been compensated on an ex gratia basis.29 Later, the court concluded that the use of force here was in violation of ihl.30 This highlights the relevance of the current theoretical exploration. During the deployment in Afghanistan, nearly all parties engaged in some form of ex gratia payments. Canada offered the payments if the individual had no alternative recourse available to them, and compensated just over 1 million dollars in 453 cases.31 Australia had installed a ‘tactical payments scheme’, which was able to pay out non-liability payments.32 In a similar fashion, both Poland and Norway established a practice in which they sought to compensate any legal damages through ex gratia payments.33
Different states have however adopted different standards and practices when it comes to ex gratia payments. States have compensated different amounts or have only engaged in ex gratia payments in certain theatres.34 An example of this would be the US not engaging in the practice of compensating the harm done by their forces in Syria, even though reports highlighted that those deaths were the result of US military action.35 Even an official admission by the US Department of Defense did not lead to the US engaging with those killed as a result of the bombardments.36
Attempts have been made at codifying and taking away the uncertainty surrounding the use of ex gratia payments. Recently, the US has adopted an official policy which sets out parameters for the use of ex gratia payments by its armed forces. This represents the first institutionalisation of these payments, highlighting that ex gratia payments might be here to stay and that policy surrounding the concept is beginning to form. An example of this would be the US compensating claims by allies, taking away some of the arbitrariness of the amount awarded.37 Whereas comparative policies are still lacking, the major role the US plays in contemporary conflicts and their engagement with the concept does make it likely that it will appear in future conflicts.
This highlights a need to engage further with the concept of ex gratia payments and see how it relates to others within international law. As states start compensating civilian harm which is not the result of a violation of ihl, it will be necessary to see how this might influence other claims an individual could have. The next section will explore the other side of this coin. The emphasis here will be on the concept of reparations, or the legal obligation to offer compensation for harm as the result of a violation.
3 Reparations for Violations of ihl
A belligerent party which violates the provisions of the said Regulation shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.38
A party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.39
The question remains if this is a right that can also be invoked by individuals or one that only applies in the relations between states. In general, this reflects a debate surrounding the nature of the rules contained within ihl. Some have argued that ihl is, in principle, only concerned with the behaviour of states.40 Others have emphasised its humanitarian character, which would look favourably upon an interpretation of ihl as granting rights to individuals (violation of which leads to a claim for compensation).41
This is also reflected in the debate surrounding a right to reparation within ihl. Taking the side of those who see ihl as containing a right of reparations for individuals, Kalshoven has argued that Article 3 of the 1907 Hague Regulations ‘undeniably accords such a capacity (to claim reparations) to individual injured parties, be they enemy or neutral persons’.42 However, the perception has traditionally been that ‘since Article 3 of Hague iv was adopted at a time when it was unthinkable that individuals might enjoy rights under international law, this provision cannot but reflect the inter-state structure of the international legal order’.43 This argues for the right of reparations only as a secondary right: one which individuals can only benefit from through a state.44
State practice seemingly reflects the position that the right to claim reparations under ihl seems to rest with the state. Case law referring to a right of reparations within ihl has favoured an interpretation which does not afford individuals an ability to directly claim reparations due to violations of ihl.45 Even within more comprehensive programs, such as the UN Claims Commission and the Eritrea-Ethiopia Claims Commission, it was the case that ‘the State is acting on behalf of the individual’.46 In a similar fashion, there are doubts to what extent the practice of the UN Claims Commission can be seen as embodying reparations for violations of ihl because the commission ‘compensates losses arising as a direct result of Iraq’s invasion and occupation of Kuwait, regardless of whether or not they were caused by a violation of this law’.47
if one assumes that those provisions on compensation intended to codify the rules of customary international law on state responsibility, it is therefore necessary to examine what the content of these rules is at present.49
The question would then be if there is sufficient evidence to argue for a changed perception of this obligation to provide reparations. The International Committee of the Red Cross (icrc) seems to argue for such an interpretation, stating that ‘There is an increasing trend in favour of enabling individual victims of violations of international humanitarian law to seek reparation directly from the responsible State’.50 Such a perspective seems to be supported in the case law of the icj, which stated in the Wall Advisory Opinion that ‘Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned’.51 This reflects at least a general recognition of a right of reparation owed to individuals.
Present international law recognizes the, albeit limited, legal personality of individuals and provides, at least on the regional level, for a system of rights, i.e. human rights, the violation of which results, in principle, in a claim for reparation by the individual victim against the state responsible for the violations of such right. It is indeed difficult to accept that the situation should be different under international humanitarian law.52
there is a set of fundamental rights that protect individuals in times of peace and war. When these substantive rights are breached, victims have a right to reparation by virtue of the applicable human rights conventions and cil. There is no clear competing rule in ihl that excludes individual reparation.53
She reaches this conclusion based upon an analysis of the law of state responsibility and no further specification to contrast this general obligation being present within the body of ihl. This is supported by a further reference to the notion that ‘H.R. case law on the right to a remedy, the right to an investigation, and the right to reparation have influenced the understating of humanitarian law’.54
In practice, such an individual right is not yet justiciable. Whereas the icrc cites supporting evidence, there is a lack of reference to individual rights under ihl to redress.55 When the European Court of Human Rights (ECtHR) was asked to consider the notion of individual reparations within ihl, it simply held that the relevant international treaties here do not point towards a right of reparation.56 Recent domestic case law points in the same direction. In the Kunduz case, dealing with the victims of a military airstrike, the German Court also stated that Article 3 of the Hague Conventions ‘do not justify any individual claims for damages or compensation’.57 It also denied that a general rule of international law, like the law on state responsibility, would support a claim for reparations of individuals.58
In general, it can thus be seen that whereas there have been arguments made to argue that ihl contains a right of reparations for individuals, this has not been so interpreted in practice. Even if such a right would exist, it might not automatically lead to a possibility for individuals to claim as there is a general lack of ‘established procedural rights for individuals to claim reparation’.59 In a similar fashion, even if ihl was seen to contain a direct clause for reparations, it would still be dependent on national legislation as an international legal forum is missing.60 This represents a broad issue with ihl. Whereas there is an ongoing discussion surrounding the notion of individual rights of reparations within this field, in practice, courts have rarely awarded claims.61
3.1 Reparations in Practice; the Role of Domestic Courts
The main avenue for victims to invoke their right to reparations is to bring a claim before a domestic court. Here, they are dependent on how and to what extent national legislation accommodates the claims of individuals based upon a violation of ihl. What can be seen here is that these cases are very much dependent on the specific domestic legal structure. This section will aim to explore some of the obstacles that victims encounter when attempting to gain any form of redress. The emphasis will be on the notion of standing, the issue of non-justiciability, immunities, and the integration of compensation for violations of ihl within national law.
It is also worth highlighting that victims not only face formal, legal issues. They are often also limited by logistic and economic barriers to starting judicial proceedings. Violations of ihl are often the result of the actions of a foreign state or, in some cases, individuals under the control of a foreign state. This creates a great deal of distance between the victims and the forum which would be able to hear their claims. This distance is visible in a physical sense, but it also represents the need for victims to engage with a different judiciary and be able to be versed in the procedure of this jurisdiction. Whereas these represent no formal legal barriers, this does create a great deal of remoteness between victims and their potential claims.
There are however also formal legal issues. All of these issues are further compounded by the structure of ihl, in which it is the case that ‘individuals are from the very beginning confined in the scope of their international claim since it is only possible to lodge a complaint against a state which recognizes the individual’s standing’.62 This requires a domestic implementation for victims to have any rights to bring forward claims and has led to a discrepancy between the recognition of victims who would have a right to claim reparations within certain jurisdictions.
Starting off with the more restrictive interpretations, in Tel-Oren et al v Libyan Arab Republic, the US Court of Appeals stated that ‘the Conventions are best regarded as addressed to the interests and honour of belligerent nations, not as raising the threat of judicially awarded damages at war’s end. The Hague Conventions are not self-executing’.63 On these grounds, the Court denied any possibility that they could provide for redress within the grounds of domestic law. Subsequent cases confirmed this, as according to the court, effect could only be given whenever such a treaty would be self-executing, lacking a supporting claim within domestic US law.64
Some states have also formally excluded combat activities from the jurisdiction of courts. This leads to tort claims for personal injury against a state caused by combat operations being denied. Doctrines like this apply, inter alia, in the US and Israel. In the US, the Foreign Claims Act is not applicable to ‘Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war’.65 Similarly, Israeli law stipulates that ‘The state is not civilly liable for an act performed through a Wartime Action of the Israel Defense Forces’.66 This has recently been held to seemingly also include violations of ihl.67
A more inclusive reading is found in the case law of Dutch courts. In the case of Dedovic v. Kok et al., a claim was brought against the Dutch government for their participation in the air campaign above the former republic of Yugoslavia. It was alleged that this led to a violation of Article 52 ap i.68 Whereas the Court dismissed the complaint based on the facts, it did leave open the possibility of individuals filing a claim under ihl, as the Court stated that it ‘comes down to whether each of the appellants has personally been the victim of an event that must be reported as a violation of humanitarian (war) law’.69 This represents at least a recognition of the standing of individuals and would allow for the filing for compensations whenever the factual circumstances are satisfied.
An infringement of a right and an act or omission that is contrary to a legal obligation or to what is customary in society according to unwritten law is regarded as a wrongful act, unless there is a justification for this.70
The reference to both legal obligations and what is customary in society casts a potentially broad net for a wrongful act, opening the possibility of the state being liable for compensation for violations during wartime. In practice, this has, for example, been employed to compensate for the killing of Indonesian civilians by the Dutch military.71
Even if a state would recognise a right to reparations in the general sense, this does not mean that all individuals would be entitled to claim that. The right to reparations does not automatically translate into standing to also claim compensation. A practical example of this is formed by the Canadian Court not recognizing the standing of a Somali citizen to bring a claim through a litigation guardian, presenting a practical barrier to hold the government accountable for potential violations.72 Other courts have also emphasized the need that only direct victims are allowed to start proceedings.73 This would limit the potential claimants, even when claims were generally recognized.
Even in courts that would generally recognise claims of individuals, limiting factors are often present. Dutch courts have held that judges should employ ‘a high degree of restraint’ when considering claims based within ihl.74 Likewise, Dutch courts have also limited the compensation awarded based on the likelihood an individual would have otherwise survived.75 This highlights that even when there is a general recognition of a right to reparation, this is often still limited in practice. The Italian Supreme Court has taken this reasoning a step further, stating that ‘means and methods of warfare falls among the “acts of government” … Hence, by their very nature, they are non-justiciable’.76 Reasoning like this was also visible in the fallout from the Distomo massacre, which involved the massacre of civilians by the Waffen-ss,77 where ultimately, the German courts ‘held that acts of the German military are to be qualified as sovereign acts (acta iure imperii), (and -.ed) that there is not yet a customary rule of international law excepting ius cogens violations from immunity’.78
This points towards a further barrier to claims being formed by state immunity. As established by the icj in Jurisdictional Immunities of the State, even in cases of violations of ius cogens, sovereign immunity cannot be set aside. The Court motivated this by stating that immunity ‘regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful’.79 This represents a seeming acceptance of the fact that immunity would even trump ius cogens claims and would be allowed to be invoked for violations of ihl.80
As a general rule, most military actions would be protected by an immunity. This would be based upon the functional immunity held by these individuals, which would exclude any civil claims for their actions in a foreign court.81 This represents a form of state immunity and would also preclude claims of individuals.82 Outside of this general immunity, prolonged military operations are also governed by a status of forces agreement, stating that the sending state would maintain exclusive jurisdiction and that the military personnel would be protected by an immunity.83 This would offer further protection against legal claims by individuals for violations of ihl, preventing further legal obstacles to victims attempting to claim compensation.
This highlights the many difficulties victims face when attempting to claim reparations. It is, by far and large, not a given that a violation of ihl also leads to reparations being offered by the state. Claims based upon violations are dependent on domestic implementation and difficulties often arise when attempting to start legal proceedings. Examples mentioned include the fact that individuals might not have standing, acts are ruled to be non-justiciable or acts might be protected by a form of immunity. It is thus not a given that violations of ihl can also be compensated.84 The question would be then how this would interact with a potential prior ex gratia payment.
4 Interaction Between Reparation and Ex Gratia Payments
4.1 Lex Lata; a Theoretical Obstacle
Some commentators have already presented the argument that when considering ex gratia payments, ‘cases suggest, the disbursement of money has been used as a kind of preemptive settlement to foreclose other claims’.85 In practice, ex gratia payments are indeed often used in the form of settlement. In such instances, it is included in this settlement that this is a final payment which would preclude further claims.86 Such practice is visible when considering the claim of Mosul. Here, a voluntary payment by the Dutch state is seen as a settlement in which the claimant loses the right to claim further compensation, leading to the closing of procedures.87 Such documents indicate a similarity to the concept of ex gratia claims as that of a settlement. In a similar way, in the Chora case, the Dutch state has advanced the argument that compensation has already been paid to some of the victims, excluding them from further payments.88
It is, however, hard to deduct conclusions from practice. Practice surrounding individual claims is mostly lacking. This might be a consequence of both practices having gained greater prominence only recently and the troublesome position of individual claims when it comes to claiming reparation for violations of ihl.89 Likewise, states might not be willing to create a precedent which would entail that, even for harm that is not the result of a violation of ihl, individuals could hold a claim for their damages. This means that hard, concrete evidence when it comes to ex gratia claims is often lacking.
To address this, this work will take a more theoretical perspective based on broader concepts of international law. Central here will be the question of whether such a settlement, coming with a waiver of future claims, can be considered legal. An analogy here will be made with how compensation between states has taken place after the conclusion of the conflict. Practice here demonstrates that at the conclusion of conflicts, it was often quite common to address any claims through a settlement. Such a settlement would further include of waiver of any potential future claims.
against the background of a century of practice in which almost every peace treaty or post-war settlement has involved either a decision not to require the payment of reparations or the use of lump-sum settlements and set-offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted.93
This seems to highlight that it would be acceptable to waive claims, as it would be possible to derogate from the general established rule. There seems to be no rule within ihl which seems to hold the opposite for individuals.94
In a more implicit way, states might also argue that the acceptance of the payment represents a notion of acquiescence that further claims are excluded. Indeed, Dolzer argues with regards to the Distomo case that, ‘it has been asserted that since no State complained Germany may, according to the principle of bona fide, rely on the fact that further reparation claims are precluded’.95 In this case, a lack of protest would seem to signify a notion of acceptance based on the concept of acquiescence.96
The question is if a similar interpretation can be used when considering the notion of ex gratia payments. Whereas acquiescence is an accepted concept within international law, not all forms of silence carry legal significance, as it is accepted that ‘Silence or inaction is tantamount to consent only when qualified by reference to the si loqui debuisset ac potuisset requirement’.97 Or, if inaction is to be constructed as legally significant, it is important that the dictum of the icj in the Preah Vihear Temple case is followed, where the Court held that for silence to amount to acquiescence, it needs to be ‘clear that the circumstances were such as called for some reaction, within a reasonable period’.98
The lack of an established forum or method makes it, however, difficult to argue that this calls for a reaction from the victims. Whereas this might mean that there might be a lesser argument for this to be an implicit waiver, the initial argument still presents a theoretical difficulty for individuals arguing for a claim which has already been compensated. In both an explicit, through the practice of the payment being seen as a settlement, and implicit fashion, ex gratia payments can then provide an obstacle to victims claiming redress.
Courts could accept the claim that the violation has already been settled and that the claims are therefore invalid. There is nothing within ihl which would prevent such a claim. In some cases, domestic law might provide for a potential to reconsider the claim.99 This would, however, not be universal, and a comparative clause within international law seems to be lacking, making it difficult to make this a universal claim. This provides potential friction from an international perspective.
4.2 Lex Ferenda; Greater Potential for Synergy?
Whereas the current legal discourse does not seem to support this, there is actually a great deal of potential synergy possible between ex gratia payments and reparations. This would be based on an initial ex gratia payment providing a first, near-immediate relief of harm, whereas reparations can later address and recognize the full extent of the harm. Yet, the current structure of ihl does not allow for this. This tension is visible when analyzing the concepts through a moral and operational lens.
From a justice perspective, the practice is unsatisfactory as it does not align with the traditional perception, which requires the recognition of a rights holder to be compensated.100 If these rights can, to this extent, be ‘bought off’ through a waiver, it creates a situation in which ‘corrective justice is reducible, at best, to one or another form of distributive justice’.101 It thus fails to fully recognise individuals as rights holders, as they have no further recourse after accepting the initial payment.102
These issues are further compounded by the consideration that the current use of ex gratia payments and the associated waiver might lead to a long-term ineffectiveness of the programs in achieving the operational objectives of winning hearts and minds. Whereas, in general, there has been a positive relationship between the use of programs and the connection with the local population,103 the question would be if that effect would remain if these payments subsequently deny them redress when a violation is found. This would mean that the payments could be seen as blood money, or a forced way of accepting the narrative of the government that no illegal act took place.104 In such a way, the payment could offer a negative long-term contribution to the winning of hearts and minds and portray an image of life or damages being bought off.
This was also recognized by Petraeus, acknowledging the potential for reconciliation provided within these concepts.105 A key part of such reconciliation can be formed by reparations. Reparations can contribute to reconciliation efforts as a way of making amends and representing a new start.106 Subsequently denying them on the grounds of waivers contained within voluntary payments will then offer a negative contribution to any efforts of reconciliation. In a moral sense, the current use fails to achieve the goal of reconciliation, of ‘Accepting responsibility for one’s actions and their consequences, and acknowledging that those actions or their consequences are wrong or harmful’.107 To overcome this gap, in both a moral and goal-orientated sense, this work proposes an alternative way of considering ex gratia payments by courts. Whereas this is not the current legal interpretation, it is one that aligns more closely with both the operational and ethical imperatives that support the practice.
are a domestic executive or legislative initiative which identifies a group of victims as beneficiaries of reparation and then provides them with redress, usually through similar reparation measures; a summary and fast process; and without the legal costs and high burden and standard of proof required in a judicial setting.108
The Court has, however, chosen a different approach when considering these programs. Instead of a waiver (either explicit or implicit) at the end of proceedings, the Court has been allowed to engage with the programs in a more comprehensive fashion. This aims to guarantee that the program does not represent a form of redress which would not match up with the broader perception of redress established by the Court.
The Court considers, as it has done in other cases, that of the national mechanisms that exist to determine forms of reparation, these procedures should be evaluated and encouraged. If these mechanisms do not satisfy standards of objectivity, reasonability, and effectiveness to properly repair the human rights violations declared by this Court, recognized in the Convention, the Court, in the exercise of its subsidiary and complimentary competence, should order the appropriate reparations.109
The Court further confirmed this standpoint when it stated that ‘administrative programs of reparation constitute one of the legitimate ways of satisfying the right to reparation … provided that they meet a series of related requirements’.110 It has also held that it remains important that ‘the remedies are appropriate to achieve not only the ending of the violation or its threat, but also the reparation of the consequences of the violation’.111
Whereas this practice has so far not been a universal success and is still inconsistent, such an approach, in theory, could accommodate the potential synergy between ex gratia payments and subsequent claims for reparations.112 Taking such an approach would also allow courts to consider the qualitative elements of an ex gratia payment, and could lead to better fulfilment of the operational and moral imperatives that underly current practice. It would do so on the grounds that the courts would consider the quality of the settlement, and not work from the assumption that the initial ex gratia payment precludes any further reparations. This can lead to a situation in which synergy between the two concepts is achieved, and they can make a further positive contribution in a moral sense and from the perspective of winning the hearts and minds of the local population.
An interpretation like this would also lead the practice to align more closely with further, victim-orientated developments of international law. In these ways, the conditions put upon reparations by development towards a more individual, victim-focused approach could be implemented. It would further help to bring the practice of ihl in line with broader international law. Currently, as argued throughout this work, it is still the case that ihl is seemingly lagging behind other fields of international law. Whereas, in general, international law has moved towards a stronger recognition of the individual, ihl still lacks a coherent reparation policy.113
Operational and moral foundations can also offer a strong argument for engaging more with reparations. Ex gratia payments highlight the first step in this, but more remains to be done if these steps are to become sustainable. It would, first of all, be necessary to recognize that ex gratia claims do not represent a foreclosure of claims, but represent the first step towards compensation.114
It is, however, not only the perception towards the use of ex gratia payments that would need to change. In a similar way, it would also be necessary to consider the broader notions of reparations. At the moment, reparations within ihl for individuals are far from a given, as has been argued throughout this piece. They are still mainly the result of ad hoc and domestic factors. It would be required to keep on further developing these systems to bring them more in line with international law. Only then could the perceived synergy between ex gratia and reparations be given effect.
5 Conclusion
Throughout this article, an argument has been presented that the relationship between ex gratia payments and reparations is problematic. Whereas both have a similar grounding in a moral sense, ex gratia payments can now present a barrier to victims claiming reparations. This would be based upon the claim that they would be akin to a settlement, or a lump sum payment, meaning individuals would lose their further right to claim compensation. This casts doubts over the moral validity of the practice. More importantly, it might lead to a lesser operational value of these payments as they might be perceived as states ‘buying off’ accountability.
To combat this, this article has suggested an alternative approach. Instead of accepting the ex gratia payment on technical grounds, it would be beneficial if courts were allowed to engage more with the substance of the payments made. Such an approach would underscore the recognition element of redress and further support that these payments are a genuine effort at reconciliation. It would move away from the image of them being used as a cheaper way to ‘buy off’ claims. Instead, the initial quick ex gratia payment might offer relief while the long, drawn-out legal processes are still ongoing. When employed in such a way, ex gratia payments could better fulfil their operational goals.
As the practice surrounding ex gratia payments continues to be fleshed out, it remains important to consider how these payments interact with other concepts within the law to ensure that they remain true to both the moral and operational foundations that they are based in. This is especially true when considering the broader picture surrounding reparations, a field that has seen an increasing amount of attention. Whenever these developments are not considered, it might lead to friction between both concepts. To address this, this article aimed to offer some first considerations.
Acknowledgements
The author would like to thank Marten Zwanenburg, Luke Moffett, Anne-Rixt Siemensma, Claire Boost, and Jochem de Hoop for feedback on earlier drafts on this article. The author would also like to thank the anonymous peer reviewers for their feedback.
Disclaimer
This article was written in a personal capacity and does not necessarily represent the views of the Ministry of Defence of the Netherlands.
aclu, ‘Documents Received from the Department of the Army in Response to aclu Freedom of Information Act Request’ (2007) <https://www.aclu.org/sites/default/files/webroot/natsec/foia/log2.html> accessed 24 March 2021.
Emily Gilbert, ‘The Gift of War: Cash, Counterinsurgency, and ‘Collateral Damage’’ (2015) 46 Security Dialogue 403, 407.
See; aclu (n 1); civic, ‘Addressing Civilian Harm in Afghanistan: Policies & Practices of International Forces’ (2010) <https://civiliansinconflict.org/wp-content/uploads/2017/10/Addressing_civilian_harm_white_paper_2010.pdf> accessed 14 May 2021; Cora Currier, ‘How the U.S. Paid for Death and Damage in Afghanistan’ (2015) <https://theintercept.com/2015/02/27/payments-civilians-afghanistan/> accessed 26 May 2021.
Jordan Walerstein, ‘Coping with Combat Claims: An Analysis of the Foreign Claims Act’s Combat Exclusion’ (2009) 11 Cardozo Journal of Conflict Resolution 319, 331. This has also been listed as an explicit policy goal by the interim policy of the US, see US Under-Secretary of Defense, ‘Interim Regulations for Condolence or Sympathy Payments to Friendly Civilians for Loss that is Incident to Military Operations’ (2020).
Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 unts 3, art 48, art 51(5)(b), and art 57 (ap i).
Theodor Meron, The Humanization of International Law (Brill, 2006) 8.
Factory At Chorzow (Germany v Poland) (Jurisdiction) (1927) pcij Rep Series A No 9, 29.
Roseanae Burke and Mark Lattimer, ‘Reparations for Civilian Harm from Military Operations: Towards a U.K. Policy’ (2021) Ceasefire Centre for Civilian Rights, 18.
ilc, ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts’ (November 2001) Supplement No 10 A/56/10 art 31.
Alphonse Muleefu, Reparation for Victims of Collateral Damage: A Normative and Theoretical Inquiry (Wolf Legal Publishers, 2014) 6.
Yael Ronen, ‘Avoid or Compensate? Liability for Incidental Injury to Civilians Inflicted During Armed Conflict’ (2008) Research Paper Hebrew University of Jerusalem 4–8, 7.
Interim regulations (n 4); Some have, however, been critical mainly on the operational perspective on ex gratia payments. This article will, however, not dive into that debate, as it believes that the operational perspective provides a strong incentive for states to actually address the harm they cause. For further discussion see Thomas Gregory, ‘The Costs of War: Condolence Payments and the Politics of Killing Civilians’ (2020) 46 Review of International Studies 156, 175.
For more on the concept of legal obstacles when claiming reparations, see Rianne Letschert and Theo van Boven, ‘Providing Reparation in Situations of Mass Victimization: Key Challenges Involved’ in Rianne Letschert et al. (eds), Victimological Approaches to International Crimes (Intersentia, 2011) 154.
An Act to Give Indemnity for Damages Caused by American Forces Abroad, 40 Stat. 532 (1918).
Christopher Daming, ‘When in Rome: Analyzing the Local Law and Custom Provision of the Foreign Claims Act the Foreign Claims Act’ (2012) 39 Washington Journal of Law and Policy 309, 314.
Walerstein (n 4) 328–331.
ibid 328.
hr Rep in Daming (n 15) 318.
Walerstein (n 4) 331.
ibid 319–320.
Mary Kaldor, ‘In Defence of New Wars’ (2013) 2 Stability: International Journal of Security and Development 1, 2.
Jonathan Tracy, ‘Compensating Civilian Casualties: “I am Sorry for Your Loss, and I Wish You Well in a Free Iraq”’ (2008) civic Research Paper, 4.
ailc, ‘Monetary Payment for Civilian Harm in International and National Practice’ (2013) Research Paper Commissioned by civic, 13–15. In 2019, the US was found to have compensated 611 cases for an amount of $1.5m. See Department of Defense, ‘Report on Ex Gratia Payments in the Event of Property Damage, Personal Injury, or Death that was Incident to U.S. Military Operations in Foreign Countries During 2019’ (2020).
nato, ‘nato Nations Approve Civilian Casualty Guidelines’ (2010) <https://www.nato.int/cps/en/SID-9D9D8832-42250361/natolive/official_texts_65114.htm> accessed 11 June 2021.
ailc (n 23) 11–15.
Netherlands Minister of Defence, ‘Vergoeding Nabestaande Wapeninzet Mosul’ (Brief aan de Tweede Kamer der Staten-Generaal, 8 September 2020) https://www.tweedekamer.nl/kamerstukken/brieven_regering/detail?id=2020Z15806&did=2020D34162 accessed 23 May 2022.
Netherlands Minister of Defence, ‘Stand van Zaken Compensatieprojecten Gemeenschap Hawija’ (Brief aan de Tweede Kamer der Staten-Generaal, 2021) <https://www.tweedekamer.nl/kamerstukken/moties/detail?id=2021Z19618&did=2021D41986> accessed 23 May 2022.
For some considerations on this case, see Emilia Steendam-Visser, ‘De Nederlandse Luchtaanval in Hawija: Enkele Handvatten ter Beoordeling van de Onrechtmatigheid’ (2021) 19 Overheid en Aansprakelijkheid 49.
Raymond Broere, ‘Nederlandse staat: ‘Slachtoffers Bombardement Chora zijn al Gecompenseerd’ Het Parool (Amsterdam, 30 March 2021) <https://www.parool.nl/nederland/nederlandse-staat-slachtoffers-bombardement-chora-zijn-al-gecompenseerd~b71f432c/> accessed 23 May 2022.
Chora claimants et al. v. the Netherlands [2022] District Court of The Hague ecli:nl:rbdha:2022:12424, para 5.33.
Jody M. Prescott, ‘Claims’ in Dieter Fleck (ed), The Handbook of the Law of Visiting Forces (Oxford University Press, 2018) 325.
Australian Department of Defence, ‘Tactical Payments Scheme’ (s.a) <https://www.transparency.gov.au/annual-reports/department-defence/reporting-year/2018-2019-29> accessed 18 May 2022.
civic, ‘Addressing Civilian Harm in Afghanistan: Policies & Practices of International Forces’ (2010) civic Research Report, 12–13.
Daphne Eviatar, ‘Toward a Consistent and Coherent Ex Gratia Policy for Civilian Casualties’ (2020) <https://www.justsecurity.org/71248/toward-a-consistent-and-coherent-ex-gratia-policy-for-civilian-casualties/> accessed 11 June 2021.
ibid.
Zachary Cohen, ‘US-led Coalition Admits Airstrikes Killed 77 Civilians in Raqqa, Syria’ (2018) <https://edition.cnn.com/2018/08/06/politics/us-coalition-raqqa-civilians-killed/index.html?utm_content=2018-08-07T05%3A45%3A07&utm_medium=social&utm_source=twCNNi&utm_term=image> accessed 11 June 2021.
Annie Shiel, ‘dod’s New Ex Gratia Policy: What’s Right, What’s Wrong, and What’s Next’ (2020) <https://www.justsecurity.org/71332/dods-new-ex-gratia-policy-whats-right-whats-wrong-and-whats-next/> accessed 10 June 2021; Interim Regulations (n 4).
Convention (iv) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) art 3.
ap i (n 5) art 91.
Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (Cambridge University Press, 2004) 20; Lawrence Hill-Cawthorne, ‘Rights under International Humanitarian Law’ (2018) 28 European Journal of International Law 1187, 1188.
Pictet has, for example, argued that the humanitarian character emphasises the protection of the individual. See Jean Pictet, ‘The Principles of International Humanitarian Law’ (1966) 6 International Review of the Red Cross 455.
Frits Kalshoven, ‘State Responsibility for Warlike Acts of the Armed Forces’ (1991) 40 International and Comparative Law Quarterly 827, 843.
Paola Gaeta, ‘Are Victims of Serious Violations of International Humanitarian Law Entitled to Compensation?’ in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law (Oxford University Press, 2011) 308.
Catia Lopes and Noelle Quenivet, ‘Individuals as Subjects of International Humanitarian Law and Human Rights Law’ in Roberta Arnold and Noelle Quenivet (eds), International Humanitarian Law And Human Rights Law; Towards A New Merger (Brill, 2008) 216.
Marten Zwanenburg, ‘The van Boven/Bassiouni Principles; An Appraisal’ (2006) 24 Netherlands Quarterly of Human Rights 641, 659.
Elke Schwager, ‘The Right to Compensation for Victims of an Armed Conflict’ (2005) 4 Chinese Journal of International Law 417, 425.
Emanuela-Chiara Gillard, ‘Reparation for Violations of International Humanitarian Law’ (2003) 85 International Review of the Red Cross 529, 541.
ap i (n 5) art 91 ; Convention (iv) (n 38) art 3.
Gaeta (n 43) 310.
icrc, ‘Customary ihl Database: Rule 150. Reparation.’ (International Humanitarian Law Databases) <https://ihl-databases.icrc.org/en/customary-ihl/v1/rule150>.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] icj Rep 883, para 152.
Rainier Hoffman, ‘The 2010 International Law Association Declaration of International Law Principles on Reparation for Victims of Armed Conflict’ (2018) 78 Heidelberg Journal of International Law 551, 553.
hr here refers to human rights. Gabriela Echevarria, ‘The U.N. Principles and Guidelines on Reparation: is there an Enforceable Right to Reparation for Victims of Human Rights and International Humanitarian Law Violations?’ (PhD Thesis, University of Essex, 2017) 211.
ibid 166.
Zwanenburg (n 45) 660.
Markovic and Others v. Italy (2007) 44 ehrr 52, para 111.
Bundesgerichtshof [bgh] [Federal Court of Justice] 6 October 2016, iii zr 140/15, §17 (Ger).
ibid § 16.
Christian Marxsen, ‘Unpacking the International Law on Reparation for Victims of Armed Conflict’ (2018) 78 Heidelberg Journal of International Law 521, 522.
Arguments have been made for the establishment of an international procedure, but this has never been implemented in practice. See Jann Kleffner, ‘Improving Compliance with International Humanitarian Law Through the Establishment of an Individual Complaints Procedure’ (2002) 15 Leiden Journal of International Law 237.
Even though some avenues, such as the icc and the ad hoc courts might offer reparations based upon ihl, they do so only at the discretion of the prosecutor. See Luke Moffett and Clara Sandoval, ‘Tilting at windmills: Reparations and the International Criminal Court’ (2021) 34 Leiden Journal of International Law 749. Likewise, reparations here are awarded against individuals and not against states. See Anne Peters, ‘conclusion’ in Cristian Correa et al. Reparation for Victims of Armed Conflict (Cambridge University Press, 2021) 4.
Lopes and Quenivet (n 44) 205.
Tel-Oren et al v. Libyan Arab Republic, 726 F.2d 774 (dc Cir. 1984) 40 (US).
Goldstar (Panama) sa et al. v. United States, 967 F.2d 965 (4th Cir. 1992). See also Princz v. Federal Republic of Germany 26 F.3d 116 (dc Cir. 1994) (US).
28 US Code § 2680 (2006).
Civil Wrongs (Liability of the State) Law, No. 5712-1952 art. 5 (Isr).
Almog Ben Zikiri and Netael Bandel, ‘Israeli Court Rules 2004 Killing of Gaza Girl Violated International Law, but Denies Compensation’ (2021) <https://www.haaretz.com/israel-news/.premium-israeli-court-rules-2004-killing-of-gaza-girl-violated-international-law-1.9829119> accessed 28 July 2021; see also Haim Abraham, ‘The War on Compensation: Troubling Signs for Civilian Casualties in the Gaza Strip’ (2021) <https://www.ejiltalk.org/the-war-on-compensation-troubling-signs-for-civilian-casualties-in-the-gaza-strip/> accessed 14 June 2021.
ap i (n 5) art 52, making reference to the principle of distinction between civilian and military objects.
Dedovic vs. Kok et al. The Netherlands Appeals Court of Amsterdam, ecli:nl:ghams:2000:ao0070, para 5.3.23.
Burgerlijk Wetboek boek 6 art 162.
Stichting Komite Utang Kehormatan Belan et al. v the Netherlands [2020] District Court of The Hague, ecli:nl:rbdha:2020:2584, paras 3.1–3.6.
Marten Zwanenburg, ‘Accountability under International Humanitarian Law for United Nations and North Atlantic Treaty Organization Peace Support Operations’ (PhD Thesis, Leiden University, 2004) 284.
Stichting Mothers Of Srebrenica and Others v the Netherlands (Decision on Admissibility) App no. 65542/12 (echr, 11 June 2013), paras 114–117.
Danikovic et al. v the Netherlands [2004] District Court of The Hague ecli:nl:ghsgr:2004:au4443, para 3.2.
Stichting Mothers of Srebrenica et al. v the Netherlands [2017] District Court of The Hague ecli:nl:ghdha:2017:1761, para 69.1.
Micaela Frulli, ’When are States Liable for Serious Violations of International Humanitarian Law? The Markovic case’ (2003) 1 Journal of International Criminal Justice 409.
bbc, ‘Greeks lose Nazi Massacre Claim’ (2003) <http://news.bbc.co.uk/2/hi/europe/3023144.stm> accessed 1 June 2021.
Elisabeth Handl, ‘Introductory Note to the German Supreme Court: Judgement in the Distomo Massacre Case’ (2003) 42 International Legal Materials 1027, 1028. This represents a broad trend of a non-disregarding of immunities even in the case of ius cogens violations. See Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2010) 21 European Journal of International Law, 815.
Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] icj Rep 1031, para 58.
For some other considerations, see Cedric Ryngaert, ‘Justice for World War ii’s ‘Comfort Women’: lessons from the Seoul District Court’s rejection of Japan’s state immunity’ (2021) <http://blog.ucall.nl/index.php/2021/02/justice-for-world-war-iis-comfort-women-lessons-from-the-seoul-district-courts-rejection-of-japans-state-immunity/> accessed 4 January 2022.
Ziada v Eshel et Gantz [2021] District Court of The Hague ecli:nl:ghdha:2021:2374, para 3.17.
Cedric Ryngaert, ‘Jones v United Kingdom: The European Court of Human Rights Restricts Individual Accountability for Torture’ (2014) 30 Utrecht Journal of International and European Law 47, 48.
Aurel Sari, ‘The Immunities of Visiting Forces’ in Tom Ruys, Nicolas Angelet and Luca Ferro The Cambridge Handbook of Immunities and International law (Cambridge University Press, 2019) 564–573.
This has led to some attempts to press claims through ihrl in cases where this is possible. An example of this would be Alseran & Ors v Ministry of Defence [2017] ewhc 3289. Issues with human rights jurisdiction might however make it difficult to make this claim in all cases. Also, these cases are ultimately based on human rights violations and not directly upon violations of ihl. See Floris Tan and Marten Zwanenburg, ‘One step Forward, Two Steps Back? Georgia v Russia (ii), European Court of Human Rights, Appl No 38263/08’ (2021) 22 Melbourne Journal of International Law 1, 11–15.
Gilbert (n 2) 413.
Contouren Civielrechtelijke Schikking ter Vergoeding Schade van Weduwen van Slachtoffers van Standrechtelijke Executies in het Voormalige Nederlands-Indië, 1945–1949 2020 art. 2.
Netherlands Minister of Defence, ‘Vergoeding Nabestaande Wapeninzet Mosul’ (Brief aan de Tweede Kamer der Staten-Generaal, 8 September 2020) <https://www.tweedekamer.nl/kamerstukken/brieven_regering/detail?id=2020Z15806&did=2020D34162> > accessed 16 July 2021.
Broere (n 29).
As noted in the reparations sections, courts have not recognized an individual right to reparation for individuals within ihl.
East German Expropriation Case [2004] German Federal Constitutional Court 2 BvR 955/00 – 1038/01, para 114.
‘Ryuichi Shimoda et al. v the State’ (1964) 8 Japanese Annual of International Law 212, 212.
Gillard (n 47) 537. Reference is made here once again to state practice, but there does not seem to be a specific rule hinting towards another right for individuals within ihl. For a recent confirmation of this, see Canadian Press, ‘Seoul court rejects slave labor claim against Japanese firms’ (2021) <https://halifax.citynews.ca/world-news/seoul-court-rejects-slave-labor-claim-against-japanese-firms-3850105?> accessed 4 January 2022.
Jurisdictional Immunities of the State (n 79) para 94.
This would even hold for ius cogens violations and grave breaches (satisfying some conditions), see Shuichi Furuya, ‘The Right to Reparations for Victims of Armed Conflict’ in Cristian Correa et al. (eds), Reparation for Victims of Armed Conflict (Cambridge University Press, 2021) 45–46.
Rudolf Dolzer in Handl (n 78) 1029.
Nuno Antunes, ‘Acquiescence’ (2006) <https://opil-ouplaw-com.ezproxy.ub.unimaas.nl/view/10.1093/law:epil/9780199231690/law-9780199231690-e1373?rskey=fA6bYV&result=1&prd=MPIL> accessed 1 June 2021.
ibid.
Temple of Preah Vihear (Cambodia v. Thailand) (Judgment) [1962] icj Rep 260, 23.
An example of this would be the recent judgment on the use of force in Chora. Here, the court argued that the initial payment did not exempt the state from further compensation. It however failed to explain its motivation in this context. See; Chora claimants et al. v. the Netherlands (n 30) para 5.35.
Ernest Weinrib, Corrective Justice (Oxford University Press, 2012) 9.
Jules Coleman, ‘The Mixed Conception of Corrective Justice’ (1992) 77 Iowa Law Review 427, 435.
Axel Honneth, ‘Recognition and Justice: Outline of a Plural Theory of Justice’ (2004) 47 Acta Sociologa 351, 354.
Lyall noted a drop of 23% in attacks against isaf forces present in Afghanistan after aid was offered after attacks. Jason Lyall, ‘Civilian Casualties, Humanitarian Aid, and Insurgent Violence in Civil Wars’ (2019) 73 International Organization 901.
Luke Moffett, ‘Transitional Justice and Reparations: Remedying the Past?’ in Cheryl Lawther, Luke Moffett and Dov Jacobs (eds), Research Handbook on Transitional Justice (Edgar Elgar Publishing, 2017) 385.
hq Multi-National Force, Multi-National Force Iraq counterinsurgency Commanders Guidance in Thomas Ricks (ed), The Gamble: General Petraeus and the American Military Adventure in Iraq (Penguin Books, 2010).
Danielle Celermajer in Elazar Barkan, ‘Group apology as an Ethical Imperative’ in Elazar Barkan and Alexander Karn (eds), Taking Wrongs Seriously; Apologies and Reconciliation (Stanford University Press, 2006) 17.
Margaret Urban Walker, Moral Repair (Cambridge University Press, 2006) 191.
Clara Sandoval, ‘Two Steps Forward, One Step Back: Reflections on the Jurisprudential Turn of the Inter-American Court of Human Rights on Domestic Reparation Programmes’ (2017) 22 International Journal of Human Rights 1, 2.
Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil (Judgment), Inter-American Court of Human Rights Series C No 219 (24 November 2010) para 303.
Case of the Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (Judgment), Inter-American Court of Human Rights Series C No 270 (20 November 2013) para 470.
Case of Garciá Lucero et al. v. Chile (Judgment), Inter-American Court of Human Rights Series C No 267, para 182.
Clara Sandoval, ‘International Human Rights Adjudication, Subsidiarity, and Reparations for Victims of Armed Conflict’ in Cristian Correa et al. (eds), Reparation for Victims of Armed Conflict (Cambridge University Press, 2021) 34–38.
Furuya also highlights some considerations to move reparations from a state-centric to victim-centric, see Furuya (n 94) 39.
This could also be based on operational incentives, where this is seen as a strong incentive to engage with the local population. See; Florian Weigand, ‘Afghanistan’s Taliban – Legitimate Jihadists or Coercive Extremists’ (2017) 11 Journal of Intervention and Statebuilding 359, 372–374.