Summary

April 2024

Access to recourse for victims of violations of international humanitarian law (IHL) is of paramount importance in the pursuit of justice and reparations. The fundamental principles of IHL aim to protect several categories of individuals, including civilians during wartime. However, in many conflicts, these principles are violated, resulting in significant suffering for these individuals.

In this context, recourse mechanisms offer victims a glimmer of hope in a landscape often marked by destruction and desolation. They allow victims to voice their concerns, testify to their suffering, and hold those responsible for these acts to account. The ability to assert their rights and seek reparations helps restore their dignity and rebuild their lives after the horrors they have endured.

Moreover, these recourse mechanisms play a crucial role in combating impunity. By holding perpetrators of IHL violations accountable for their actions, the available mechanisms for addressing IHL violations send a strong message that such behavior will not be tolerated and that justice will prevail. This helps deter future perpetrators of IHL violations and promotes respect for international humanitarian law in armed conflicts.

Furthermore, the availability of multiple recourse mechanisms, such as international tribunals, regional mechanisms, national jurisdictions, civil remedies, and non-judicial mechanisms, provides victims with a range of options to seek justice. However, it is crucial to recognize that each case of IHL violation is unique, and several factors must be considered when assessing the most appropriate recourse avenue.

Introduction

International humanitarian law is of crucial importance as it aims to limit the damage and suffering of war while minimizing its impact on individuals and property through clear obligations.

However, numerous violations of IHL continue to occur in various regions worldwide, causing significant harm to affected populations. In this context, it is imperative that victims have effective avenues for recourse to assert their rights and obtain redress for violations of IHL committed against them.

Access to justice is a fundamental principle for victims of IHL violations. Indeed, the obligation to provide access to justice for victims of IHL violations is reflected in several sources of international law, including :

The Geneva Conventions of 1949

  • Geneva Convention I (Article 49) : “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article” (1).

The obligation imposed on parties to take legislative measures against perpetrators of IHL violations also encompasses access to justice for victims.

  • Geneva Convention II (Article 50): contains the same content as Article 49 of Geneva Convention I (2).
  • Geneva Convention III (Article 129): contains the same content as Article 49 of Geneva Convention I (3).
  • Geneva Convention IV (Article 132): contains the same content as Article 49 of Geneva Convention I (4).

Additional Protocol I to the Geneva Conventions (Articles 85 and 86) 

“The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to put an end to other breaches of the Conventions or of this Protocol which result from a failure to act when under a duty to do so” (5).

The Statute of the International Criminal Court (Article 75)

According to S. PELLET : “Article 75 of the Rome Statute, which provides for the possibility for the international judge to grant reparation to victims and their dependents, upon their request or proprio motu without any specific request being made to that effect, constitutes a real innovation in the sphere of international law. Reparation orders are made against a convicted person and therefore intervene at the end of a criminal trial resulting in the guilt of the accused” (6).

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 14, paragraph 1)

“Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation” (7).

Thus, for IHL to truly fulfill its objective of protecting victims of armed conflicts, it is essential that effective recourse mechanisms be established.

In addition to these sources of international law, many states have also adopted national laws providing access to justice for victims of IHL violations.

In this context, it is also important to emphasize that access to reparation for victims of IHL violations should be a right. This is concretized by the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”, which were adopted by the United Nations General Assembly. This instrument has played a crucial role in this area by affirming the right of victims of serious violations of international humanitarian law to “full and effective reparation”. Although not legally binding, this instrument reflects a strong consensus among stakeholders, including states. Furthermore, it is important to note that it has marked an important step in the evolution of the right to reparation (8). According to the ICRC, the majority doctrine considers that “victims of serious violations of IHL have the right to demand and receive reparation” (9).

We will thus explore the main mechanisms available to victims of IHL violations. We will examine the different options offered by international law, as well as national and international mechanisms designed to ensure access to justice and redress for the harm suffered by victims of IHL violations.