187 / 464
173
VICTIMS’ RIGHT TO REPARATION UNDER INTERNATIONAL HUMAN RIGHTS LAW…
between primary and secondary obligations under international responsibility, which
seems to have been confirmed by the ILC in its commentary to Article 31 DARS,
interpreting (even though for relations between States) the
Chorzów Factory
principle
as following:
“The general obligation of reparation is formulated … as the immediate
corollary of a State’s responsibility, i.e., as an obligation of the responsible State resulting
from the breach…”
53
It seems therefore that, if individuals have primary rights under
international law, they also have a corollary secondary right to claim reparation.
54
Evidence in favour of such a position can be found in international jurisprudence.
In the
Israeli Wall
advisory opinion, the ICJ seems to have suggested that all victims
of breaches of certain fundamental human rights (of
erga omnes
character, such as the
right to self-determination)
55
guaranteed under general international law are entitled
to reparation: “[…]
Israel has the obligation to make reparation for the damage caused
to all the natural or legal persons concerned.”
56
Similarly, the International Criminal
Tribunal on Former Yugoslavia (ICTY) in the
Furundžija
case assumed the existence
in cases of
ius cogens
breaches of a secondary right to reparation under international
law which can be brought before international, national or even before foreign state
courts. The ICTY concluded that: “
Proceedings could be initiated by potential victims
if they had locus standi before a competent international or national judicial body with
a view to asking it to hold the national measure to be internationally unlawful; or the
victim could bring a civil suit for damage in a foreign court, which would therefore be
asked inter alia to disregard the legal value of the national authorising act.
”
57
The judges of the ICTY recognized the existence of a general right of individuals
to compensation also in a specific document – a letter to the President of the
UN Security Council which states that
“(…) the emergence of human rights under
international law has altered the traditional State responsibility concept, which focused
on the State as the medium of compensation. The integration of human rights into
State responsibility has removed the procedural limitation that victims of war could
seek compensation only through their own Governments, and has extended the right to
compensation to both nationals and aliens. There is a strong tendency towards providing
compensation not only to States but also to individuals based on State responsibility. (…)
Thus, in view of these developments, there does appear to be a right to compensation for
victims under international law.”
58
53
Report of the International Law Commission
, UN Doc. A/56/10, Article 31 (Reparation), p. 224, para. 4.
54
ECHEVERRIA, Gabriela.
op.cit.
, p. 709.
55
ICJ,
Legal Consequences of the Construction of aWall in the Occupied Palestinian Territory (Wall Opinion)
,
Advisory Opinion, ICJ Reports 2004, para 122.
56
Ibid.,
paras 152-153.
57
ICTY,
Prosecutor v. Furundžija
, Judgment of 10 December 1998, para. 155.
58
Victims’ compensation and participation, Appendix to the Letter dated 2 November 2000 from the
Secretary-General addressed to the President of the Security Council, UN Doc. S/200/1063 (2000),
p. 11, paras. 20-21.