War Crimes Compensation Claims: Charting the Challenges Faced by Civilian Victims and Their Advocates

Abstract

This chapter will revolve around the difficulties of national human rights institutions, victims’ rights groups and other advocates face in launching compensation claims for victims of war crimes. It will discuss the challenges of making a successful mass compensation claim as part of a prosecution in the various international criminal tribunals of recent years as well as in the International Criminal Court. The chapter will then discuss the challenges faced in accessing administrative compensation schemes which in some cases (such as that of the US and the UK) have become measurably more restrictive in recent years. For this the ‘War on Terror’ (particularly the recent conflicts in Afghanistan and Iraq/Syria) will be a focus. It will conclude by considering ex-gratia compensation schemes which are likewise characterised by a variety of access issues also posing clear difficulties for victims and the advocates who seek redress for them.

1. Introduction

Acknowledgement and the ready provision of financial (and other) assistance for civilian victims of wartime operations is crucial, from the need for the social and economic rehabilitation of individuals and their communities, and for promoting adherence to the fundamental principles and rules of international law. Compensation is also considered to be of prime importance in promoting counter-insurgency mission goals which depend on winning the ‘hearts and minds’ of the local population. However, despite significant advances in recent years, compensation for the majority of war victims is either unavailable or is highly variable depending on geographic location, which country the attacking force comes from, the nationality and individual identity of the victim and the process invoked, amongst other factors.

This chapter examines reparations in international criminal courts and tribunals, namely the ICTR, the ICTY, the Special Court for Sierra Leone and the Extraordinary Chamber in the Courts of Cambodia, before discussing outcomes for victims in the International Criminal Court. Given that the US and the UK have deployed their military forces abroad in recent years and have had a range of high-profile claims brought against them, it then examines the restrictions both those States have placed on victims’ justice in their domestic courts. The chapter finishes by examining practice regarding ex gratia no-liability payments to victims in theatre.

The discussion concludes that all of these are imperfect mechanisms posing a range of impediments, ranging from jurisdictional limitations, evidential problems, time limits and severe logistic constraints. This means advocates often face severe constraints in representing their clients, which impacts inevitably on accountability and therefore on justice for the crime(s) in question.

2. Reparations in transitional justice

The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) (and their Residual Mechanisms), the Special Court of Sierra Leone (SCSL), as well as the Extraordinary Chamber in the Courts of Cambodia (ECCC), have principally been concerned with trying violators of international law. The influence of common law jurisdictions on the design of tribunal processes meant that victim participation in trials was relegated to the periphery, principally in acting as witnesses for the Prosecution and/or in providing victim impact statements at the sentencing stage. This structure has been to the clear detriment of reparations. Victims have often been left to pursue patchwork administrative regimes which, where available, have often not met international standards of justice.

2.1 The ICTY

The ICTY was established to prosecute the architects of genocide and other atrocities committed during the breakup of the former Republic of Yugoslavia (FRY). It has been recognised as a pioneer for international criminal justice - it pursued convictions of over 160 accused, including Heads of State, Prime Ministers, Army Chiefs, and senior security officials on various sides of the conflict.¹ However, its success was limited with respect to reparations. When the ICTY was established the focus of the international community was overwhelmingly on criminal accountability, and as a result the Tribunal’s mandate made no provision for a victims’ reparation fund. In fact, the ICTY had no power to award reparations to individuals (except for property restitution). This meant that victims could only utilise Rule 106 of the Tribunal’s Rules of Procedure and Evidence under which they could bring a case for compensation in a national court upon the basis of the perpetrator’s prior conviction in the ICTY. This mechanism featured in ICTY caselaw “only to a very limited extent” [1] - only in a handful of cases, mostly in relation to sexual offences, was it invoked [2]. Rule 106 had very limited potential for this reason [3], and also because it appears that the Office of the Prosecutor was not as proactive as it might have been in raising the possibility of victims using it [4]. This means that victims and their advocates were deprived of this avenue even when the case lent itself to it. Further, the rare individual and collective compensation claims that were successful before national courts have had lingering problems with compliance [5].

The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) urges States to provide compensation to victims where compensation is not fully available from the offender², and that alternate funds be established in cases where the State of nationality of the victim cannot provide compensation.³ Had it been available, victims would in general have had better odds in pursuing compensation through such a scheme, particularly since Security Council Resolution 827 (1993) (which was adopted at the same time as the ICTY Statute) noted that the Tribunal’s work was to be without prejudice to the right of victims to seek compensation.⁴ However, any possibility of a broad national compensation programme ended when the Security Council decided to unfreeze the assets of Serbia and the Bosnian Serbs in Resolution 1074 (1996), and the International Court of Justice (ICJ) dismissed the genocide cases launched against Serbia by FRY successor States.⁵ A hard-fought reparations case against the Netherlands brought by the near relatives of victims regarding the actions of ‘DutchBat’ troops during the Srebrenica massacre ended with only a relatively small victory [7]. Consistent with the constraints placed upon reparations under the ICTY’s mandate (only land restitution awards for those forced to flee their property were possible), the only significant reparation that occurred at the national level was the restitution of real estate, particularly in Bosnia-Herzegovina [8]. This means that “many (if not most) victims of international crimes committed during the Yugoslav wars have remained without an effective remedy”.⁶

2.2 The ICTR

As was the case with the ICTY, the ICTR Statute made no provision for a reparations fund which could cover Tribunal awards to victims. However, the ICTR mandated that financial compensation be paid to victims in around half of its cases. That said, criminal penalties were enforced against perpetrators but awards for victims were not - overwhelmingly due to the indigence of the former. This was despite the fact that every ICTR judge believed that victims should be compensated, and there was widespread recognition in the international community of the healing role of reparations.⁷ The Tribunal made the occasional ruling that the Rwandan government compensate victims in lieu of an indigent perpetrator, but the government refused to do so.⁸

Within Rwanda itself, the vast majority of criminal justice reckonings took place in the traditional Rwandan network of gacaca courts, which provided a judicial process at the local community level. These resulted in the indictment of over 100,000 people for (low-level) genocide.⁹ In contrast to the ICTR, these processes allowed a central role to victims and their advocates in establishing the charges and bringing evidence against the accused, as well as explaining the impact of his/her acts on victims. Where ICTR trials established the responsibility of the Rwandan State, the gacaca courts ordered the perpetrator and/or the State pay colossal sums for the genocide committed in its name. However, these awards suffered from the same difficulties as did ICTR reparations awards - they awarded millions of dollars in reparations to victims, but judgements were seldom enforced, either because the perpetrator was unable to pay or because the State refused to pay in lieu. From a policy perspective, although the international community rightly had an interest in seeing the prosecution of key figures who organised and/or committed the genocide, it is therefore arguable that the large sums of money spent on pursuing criminal cases might have been better spent (at least in part) on direct compensation for victims.¹⁰

That said, the Rwandan government did recognise ICTR rulings which placed responsibility on the State for crimes committed in its name. In 1996 the government established the National Commission for Unity and Reconciliation and passed a law on punishing genocide.¹¹ The law promised a compensation fund for victims¹², although senior Rwandan government figures quickly distanced themselves from this promise. Many publicly asserted that Rwanda could not afford a compensation fund, in a similar way as they refused the ICTR’s prompts for the government to step in in lieu of the perpetrator to pay court-mandated reparations.¹³ Instead, in 1998 the government set up a national rehabilitation fund (‘FARG’¹⁴) to provide health services for victims, support for the most destitute, education for orphan victims, housing for the homeless, and assistance in creating income-generating activities. FARG was to be financed not by damages, but by a regular provision from the national budget [12].

Since then FARG has been well-resourced (at around 6% of Rwanda’s annual budget¹⁵), but it quickly gained a reputation for corruption and for discrimination against Hutus.¹⁶ Problems including embezzlement, shoddy housing construction, corruption in the selection of beneficiaries, and allowing former militiamen to benefit, have persisted.¹⁷ However, in 2018 it was reported that it had financed medical care on over 2 million occasions (including for 428 patients treated abroad), nearly 110,000 children and orphans had benefited from the education programme at all levels and up to university, 45,000 houses had been built, and there had been 54,000 beneficiaries of income-generating activities. With the assistance of international donors, FARG has also built memorials and mass tombs and has instituted other remembrance activities.¹⁸ Although the total spent is approximately 272 billion Rwandan francs (270 million Euros), many argue that this is “a drop in an ocean of problems” and remains derisory in relation to the needs and the number of victims.¹⁹

International law (including the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985)) argues that reparations for such heinous acts as genocide is a right, not a privilege. However, the Rwandan government’s rejection of compensation in favour of providing assistance through FARG means that “even the victims are condemned to pay for their own reparation”, and survivors (and/or the genocide survivors network Ibuka (“remember” in Rwandan)) need to agitate for funds lest they lose out.²⁰ Some have argued that because Rwanda was in ruins in the aftermath of the genocide the focus of the country had to be on rebuilding basic infrastructure, communities and services rather than on providing financial redress for individuals.²¹ Even if so, more than 25 years have now passed, and there has still been a lack of success by victims and their advocates, both Rwandan and international, in agitating for individualised compensation.

2.3 The SCSL

The civil war in Sierra Leone was perpetrated principally by Revolutionary United Front (RUF) rebels fighting against the Momoh and then Kabbah governments. Throughout the war, RUF troops and their sympathisers conducted a reign of terror against civilians, which was characterised by the widespread use of child soldiers, slaughter, mutilation, rape, and the complete destruction of villages. The end of the war resulted in the Lome Peace Agreement (1997) under which there was the deployment of peacekeepers from the United Nations Mission to Sierra Leone (UNAMSIL).²² The Lome Agreement also included a requirement that the Sierra Leonean government set up a Truth and Reconciliation Commission (TRC) and a reparations fund for war victims.

The government acted quickly to establish the TRC, but there was little action taken for several years regarding reparations. The TRC presented a lengthy report in 2004 which contained a whole chapter on reparations for victims of both State and rebel actors.²³ Five categories of beneficiaries were identified - amputees, other wounded, victims of sexual violence, children and war widows²⁴, each of whom were to be entitled to free healthcare and (in the case of adults) a monthly pension of at least SLL60,000 (about USD30).²⁵ Funds for the pension were to come from the Sierra Leonean government, although it hoped that the international community (particularly the UN Secretary-General’s Peacebuilding Fund²⁶) would contribute. However, there was a drastic shortfall in international donor funds (in 2004, which was the year in which the scheme had the highest profile in the international community, only 10% of the funding goal was reached).²⁷

In 2008 the new government designated the National Commission for Social Action (NaCSA) as the implementing agency; although it was allocated no funding, NaCSA pledged to honour all of the TRC’s recommendations on reparations. The Sierra Leone Reparation Fund, raised from the international community and managed by the Peacebuilding Fund (with technical assistance from the International Organisation for Migration)²⁸, ended up with USD4.55 million for postwar reparations. Although there were initial difficulties in establishing processes for accessing funds²⁹, in 2009 NaCSA provided SLL300,000 (approximately USD100) to each of 20,000 wounded victims and 200 victims of sexual violence. Another 50 victims with significant physical injuries received medical treatment. A further round of payments were made in 2012 to around 10,700 victims totaling over USD860,000 (an average of USD80 per person), and in 2013 NaCSA began distribution of rehabilitation grants to around 1300 disabled victims [13]. It also funded community-based capacity-building projects (agricultural assistance, housing and skills training) and symbolic acts of memorialisation in some districts [14], with up to 100,000 Sierra Leonean victims and their close relatives reportedly benefiting.³⁰ Thus although reparations were forthcoming, lengthy delays, limited funds and significant omissions from the victim group have reduced their effectiveness.

On the criminal track, the Special Court for Sierra Leone (SCSL) was set up in 2002 following the request by the Sierra Leone government to the UN for “a special court” to try atrocities committed during the conflict.³¹ Similarly to the ICTY and ICTR, the Statute of the SCSL did not specifically provide for victim reparations, but the government had hoped that funds would be recovered for victim compensation once successful convictions had been obtained. However, in 2010 SCSL Chief Prosecutor Brenda Hollis cautioned against optimism that the end of the high-profile trial of Charles Taylor (former President of Liberia) would allow the repair of victims. Hollis noted that public hopes for a compensation mechanism paid from Taylor’s assets would not be satisfied because the UN team investigating Taylor’s alleged funds was experiencing great difficulty identifying and seizing suitable assets, and also there was a serious shortfall in contributions for victims’ awards from the international community (this was, in her words, “little short of a disgrace”).³² Taylor was eventually convicted and sentenced to 50 years in prison, but very little was recovered of his assets. Funds were also elusive from other SCSL cases.³³

2.4 The ECCC

Many years after the Khmer Rouge ‘killing fields’ of the 1970s, the hybrid UN/Cambodian Extraordinary Chambers in the Courts of Cambodia (ECCC) was finally established to prosecute former Khmer Rouge ‘senior leaders’ and ‘those who were most responsible’ for the genocide. The ECCC has to date convicted three senior leaders: Kaing Guek Eav (‘Duch’), the former Head of the S-21 security facility in Phnom Penh (‘Case 001’), and Nuon Chea (‘Brother Number Two’) and Khieu Samphan (President of the State Praesidium) (‘Case 002’).³⁴ Other cases – that against Meas Muth (and Sou Met before his death) (‘Case 003’)³⁵ and against Yim Tith (‘Case 004’³⁶, with sub-cases against Im Chaem (‘Case 004/01’)³⁷ and Ao An (‘Case 004/02’)³⁸) did not proceed due to disagreements between the international and the Cambodian judges and prosecutors; in fact, the Cambodian government has resisted all efforts to reach within former Khmer Rouge ranks to bring further prosecutions [17, 18].

The ECCC was the first internationalised tribunal to give a substantive role to victims (‘Civil Parties’) in determining charges and participating in the trial. Its Victim Support Section played a key median role liaising between Civil Party advocates and focal persons amongst the Civil Party victim group. The UN Group of Experts for Cambodia³⁹ had earlier recommended that the ECCC be given power to order financial reparations be paid to Civil Parties from the leaders convicted at trial. However, the Cambodian government rejected this idea [19]. While the Internal Rules of the ECCC allowed the confiscation of illegally-obtained real property and other assets from convicted persons, all proceeds went to government coffers and was not for the benefit of victims.⁴⁰ Yet Cambodia’s human rights treaty obligations guarantee victims an ‘effective remedy’⁴¹, so the requirement for civil reparations had to be met. Only Cases 001 and 002 resulted in a reparations order; after a difficult first experience with the trial process in Case 001, ECCC judges significantly amended their legal framework to provide alternative avenues for reparations in the judicial process [20]. This was done by allowing the Chamber’s Internal Rules to provide that reparations be granted in symbolic terms.⁴² Upon finding that each of the relevant offenders were apparently indigent, the Chamber ruled that education, documentation, memorialisation and some health rehabilitation projects were to be judicially recognised as civil reparations.⁴³ In Case 001 the ECCC admitted 64 applicants as Civil Parties and declared that memorialisation of the dead in case documentation along with the publication of Duch’s acknowledgements of wrongdoing and apologies would comprise reparations. There was a similar ruling in Case 002, in which some 3865 victims had registered as Civil Parties.⁴⁴

The ECCC has announced that there will not be any more investigations and trials, so there will not be any further opportunities for court-mandated symbolism.⁴⁵ Unless the Cambodian government seizes the large caches of assets allegedly amassed by former Khmer Rouge senior leaders⁴⁶, or makes available a separate reparations fund (from its own national budget, international donor funds or a mix of the two), there will never be enough funds to repair individual Cambodian victims even partially for their losses, particularly given the lengthy period of time that has now elapsed.

2.5 Commentary

The model adopted by the ICTR was very unsatisfactory for victims, as was court procedure under the ICTY and SCSL Statutes. All these bodies were based on the Western adversarial system which minimises victim participation and places responsibility on the prosecutor to represent them during trial. Allowing the impact on victims to be considered only at sentencing (where available) does little to dignify and empower victims, and they are often disappointed and disillusioned from the experience [21]. The risk of this is even greater in cases of mass atrocity and if trials are held in geographically-remote locations, such as the SCSL’s prosecution of Charles Taylor in The Hague. Although the ECCC was the first international (hybrid) tribunal to give a substantive role to victims as Civil Parties, its rulings on reparations were only symbolic, which is an unsatisfactory outcome for the many victims left in destitute circumstances. Furthermore, given the Cambodian government’s staunch opposition to any further investigations, it appears that only three substantive trials will ever be held.

Clearly, “[f]unding reparation for mass-victimisation from the resources collected from individual convicted perpetrators will be necessarily a challenge”.⁴⁷ Even when convictions of very senior (and allegedly very rich) perpetrators have been obtained in courts or tribunals having the power to seize assets and make reparation awards, it has proven extremely difficult to recover even meagre resources for this purpose. Further, placing the burden of reparations on a convicted few does not reflect the fact that gross, widespread atrocities often occur against a broader background of systematic planning and organisation.

Regarding government-funded reparations, when such schemes have been enacted in domestic legal systems victims have had a legislative framework for redress based in domestic law. This means that they are able to avoid the significant difficulties of arguing their claim based directly on rights in international law, which has been a stumbling block for many claimants in recent years [22]. Having said that, all the schemes discussed so far have been deficient in major respects, with wide variations in coverage and effectiveness. Many victims have fallen through their cracks, including by deliberate design [23]. This is the case also in Argentina [24], Chile [25, 26], Guatemala⁴⁸, Peru⁴⁹, South Africa⁵⁰ and Sri Lanka [27, 28], which have all implemented their own compensation regimes following lengthy repression and/or internal conflict.

It is however true that the lack of financial reparation for many victims in post-conflict societies reflects the difficulty plaguing any reparations process coping with mass atrocities, particularly if there are lengthy delays. The very nature of war crimes involving mass numbers of victims shatter entire communities, making them impossible to fully repair. As such, all reparations will be symbolic to some degree. The sum placed on the loss of a family member or on significant and lasting disability will always be arbitrary and inadequate, demonstrating that reparations are in many respects a blunt tool, ill-adapted to dealing with many abuses. Viewed in such a way, reparations for individuals may lose any real meaning and can even be insulting. This will especially be the case if official apologies and government acknowledgement of the wrongs committed, communal reparation and memorialisation activities, truth and reconciliation commissions, and health and education programmes are all absent.

A good example of this occurs in relation to sexual and gender-based violence committed during conflict (SGBV). Governments are increasingly recognising the need to repair SGBV, but much of the discourse in relation to transitional justice fails to address these victims’ needs, especially where there has been mass abuse. As is the case for other gross abuse, compensation will always be grossly disproportionate to the harm suffered, thereby risking the trivialisation of victims’ suffering. Further, a continued focus on the ‘victimhood’ of SGBV survivors contributes to a narrative of ongoing powerlessness and stigmatisation in a way that continued focus on the victims of (say) a mass killing does not. The need to highlight the suffering of victims of sexual violence in order to pursue their case for reparations can present a quandary for them and their advocates as the risk of re-victimisation is high, especially in conservative societies [29].

Further, an ‘individualisation’ of the right to reparations or a focus on victimhood in the context of mass abuse ignores the broader societal inequalities that may have contributed to that abuse, thus missing an important development opportunity and leaving the roots of violence intact.⁵¹ This dilemma amply illustrates the challenge faced by transitional justice in being both backward and forward-looking, needing to address legitimate claims for justice by survivors of horrendous abuse while building long-term peace, equity and respect [30].

Political decisions regarding whether and to what amount to fund compensation (especially where the number of victims is very large) will always be difficult, and despite their recognition of the legal rights of diverse victims, most States have done poorly in this respect. Political disagreement is common on whether it is more important to repair victims of the violence or to rebuild economically. Against a background of scarce resources and unstable post-war political leadership it is very likely that the former will be sacrificed in favour of the latter, either until the economy recovers (the timescale for this being unstated) or completely. Sometimes a reparations scheme provides for both collective and individual claims, but in general governments tend to resource the former far better than the latter (no doubt due to their wider impact for the money spent, and perhaps also due to the potential for electoral votes in recipient communities). Collective reparations have also been criticised for being deficient economically, conducted without recipient community consultation, or for veering into the area of community development which the government should deliver anyway [31].

In post-conflict societies individual reparations should be an integral part of a broader package aiming to reform institutions and government practice, strengthen the human rights architecture, and address the deep structural issues in society (such as social and political marginalisation, economic inequalities between ethnic groups and/or poverty in rural or indigenous areas) that gave rise to the conflict. However, governments tend to pursue memorialisation and collective reparations (in far less than perfect form) while ignoring broader and more difficult structural reform. This is particularly where the government is a provisional one seeking electoral and political legitimacy. The result is that the society as a whole fails to reckon with the past and little structural change occurs [32, 33], so the roots of the conflict are not addressed in a way which could break the cycle of violence. At a deeper level this falls foul of the guarantee of non-repetition owed to the international community under Article 23 of the Basic Principles and Guidelines. Thus one of the most important goals of a post-conflict reparations scheme is often unmet.

International pressure is crucial in encouraging societies reckoning with transitional justice to provide an effective remedy for victims. Yet the international community too often focuses on prosecution of those responsible for atrocities and not sufficiently on repairing its victims. This focus has meant reparations at the national level have generally played second fiddle to criminal justice outcomes. For example, the international community was overwhelmingly concerned with prosecuting war crimes in Rwanda and in the former Yugoslavia, so there was little attention paid to civil reparations in their post-war recovery. Similarly, the focus on criminal processes for former Khmer Rouge leaders has been to beggar a civil scheme for Cambodian victims [34]. The lack of success by the UN in raising international donor funds to service comprehensive reparations schemes in these countries is telling. Even when the UN has been able to raise international funding (such as for Sierra Leone), it has been far less than required.⁵² Lastly, of course there is the danger also that relying on donor funding from the international community removes much of the impetus for the post-war society to reckon with the long-term political, economic and social marginalisation of segments of its community which led to violence in the first place.

Reparations receive far less attention from both the national government and the international community than criminal responsibility for key leaders and a return to stability and international participation by the State. International pressure for accountability to victims tends to decline upon evidence of cooperation by the State’s government on regional security, trade issues, and/or (especially in recent years) international terrorism. Of course, pursuing criminal accountability of those responsible is a crucial element of achieving justice for victims, but most criminal trials - even if they result in convictions - “…do not lead to things such as reparations, institutional reforms, vetting of officials, school lessons, history books, and rehabilitation of the victims” [35]. These outcomes must be provided by national governments, and without the political will (or external pressure) for them there is little chance they will occur. In Rwanda there was active opposition to the idea of reparations. The former Khmer Rouge leaders still in power in Cambodia have not only refused the idea of reparations upon conviction and have distanced themselves from the ECCC process, they have also shown little inclination to institute reparations outside of that process.⁵³ Sierra Leone’s government acknowledged the need for reparations but refused to fund them, completely outsourcing their funding to the international community. Whilst there was no opposition per se to reparations in the former Yugoslavia, the lack of action has again been due to a lack of strong political leadership.⁵⁴

Unless there is strong political leadership from post-war governments (which is rare), efforts by international organisations, civil society actors, victims’ associations, and political actors to ensure all victims receive just compensation are unlikely to bear fruit. States will breach international standards and obligations if they do not provide victims with an effective remedy for egregious violations of international humanitarian or human rights law⁵⁵, but individual victims or groups of victims may need to enliven international fora (such as regional human rights bodies, if available) to actualise this right.

3. Reparations in the International Criminal Court

The International Criminal Court (ICC) established under the Rome Statute⁵⁶ was the first permanent international tribunal to give specific rights to victims, including to civil redress. Its Article 75 provides that the Court will establish principles relating to reparations for victims - including restitution, compensation and rehabilitation - and it may make an order against a convicted person specifying the reparations to be paid. In appropriate circumstances the Court may order that reparations be made through the Trust Fund for Victims (TFV) established under Article 79, which is where all money and proceeds collected through fines and/or forfeiture are paid.

The TFV’s reparations mandate has played an increasingly important role as convictions have been secured. To date, five reparations awards have been made upon the convictions of Thomas Lubanga Dylio in 2012 (symbolic and non-symbolic collective reparations were awarded⁵⁷, and the Court set Lubanga’s liability for the latter at USD10 million); Germain Katanga in 2014 (the Court determined Katanga’s liability at USD1 million, which covered nearly 300 victims who would receive symbolic reparations of USD250 per individual (USD74,250 in total), as well as four awards of collective reparations (USD925,750 in total) for housing support, income generating activities, education aid and psychological rehabilitation⁵⁸); Ahmad al-Faqi al-Mahdi in 2016 (the Court determined his reparations liability at €2.7 million, which covered individual awards and collective reparations); Bosco Ntaganda in 2019 (the Court determined his reparations liability at over USD31 million⁵⁹, the Court’s highest-ever award), and Dominic Ongwen in 2021 (reparations phase is ongoing).⁶⁰

The TFV’s secondary function - its ‘assistance mandate’ - allows it to use voluntary contributions from States for the benefit of victims in areas under the Court’s investigation, independently of the reparation process.⁶¹ This role has the benefit of offering more timely assistance to victims than under the reparations mandate, allows funds for a broader group of persons than those affected by a single crime, and is not dependant on a prior guilty verdict. The TFV’s assistance projects to date have focused on the Democratic Republic of the Congo, Northern Uganda, Cote d’Ivoire, and the Central African Republic. A broad range of victims have benefited, including SGBV survivors, child mothers, former child soldiers, disabled persons and amputees, disfigured and tortured persons, and orphans. For example, victims of sexual violence in Lubanga (who missed out on a reparations award at trial)⁶², and victims of Jean-Pierre Bemba (who missed out on reparations as a result of his acquittal on appeal in 2018) have been able to benefit from the TFV’s assistance mandate.⁶³

As was the case for earlier international tribunals, ICC awards against convicted persons who are found to be indigent by necessity will require the TFV to provide the funds. In all ICC cases in which reparations awards have been made the perpetrator has been ruled indigent, so the Court has requested the TFV step in to cover the whole (or near whole) amount.⁶⁴ Although the ICC has reiterated that a convicted person must reimburse the Fund for the sums it advances on his/her behalf⁶⁵, there is little real prospect of this occurring. The Rome Statute contains provisions for Member States to assist the Court with identifying and securing assets for victim reparations, but this has proven to be a difficult and protracted process, even when the convicted person has amassed a personal fortune. The Fund’s reliance upon voluntary donations has clear implications for the extent to which it can cover awards; some members of the international community routinely make voluntary contributions to the TFV’s assistance mandate, while others donate specifically to meet the reparations award in a particular case. In both these respects the current heavy call on the Fund is very likely to continue, making many reparations awards necessarily symbolic (particularly in cases of mass atrocity) or skewed in favour of collective rather than individual sums. Clearly, it is inevitable that the Fund’s dependence on the philanthropic whims of the international community impacts on the effectiveness of its work.

Exacerbating these limitations is the fact that ICC proceedings can only be brought against individuals; the Rome Statute contains no mechanism to hold States themselves accountable for war crimes, crimes against humanity or genocide. The ICC’s conviction of a person for war crimes does not imply any form of joint responsibility (legal or financial) for the State on whose behalf the person acted.

Of course, the availability of a reparations award for victims depends on whether the ICC is entitled to act in the first place. The ICC can exercise jurisdiction only when the crime was committed by a citizen of a Member State or on the territory of a Member State, or if the UN Security Council refers the situation to the Court.⁶⁶ Some obvious candidates for examination have never become members of the Rome Statute (such as Sri Lanka, North Korea, Burma⁶⁷, Uzbekistan, Israel⁶⁸, Syria, Iraq, China, the Russian Federation and the US), and the Security Council’s permanent members have actively shielded their allies from the Court’s attention.⁶⁹ This means that so many victims around the world have been denied justice, which actively detracts from the reputation the Court might otherwise hold as a beacon against impunity and a bastion of impartiality in the throes of international war and politics.

Another major problem with ICC trials is the fact that in many cases, it takes years to apprehend the accused and commence trial. If there is an appeal, it will take even longer to obtain a final verdict and a reparations order after that, which may itself be appealed and in any case suffer serious difficulties with funding. Many victims of mass atrocity will therefore need to get by for a very long time before they see any reparations, if there are any at all. Needless to say, this massive delay leads to great injustice, especially since many victims already live in very impoverished circumstances. Additionally, the ICC will not proceed against an accused unless they are in ICC custody; there is no provision in the Court’s rules for trials in absentia. Many accuseds (such as, for example, Joseph Kony) are still at large years after the warrant for their arrest has been issued. The custody requirement is consistent with criminal law protections for the accused which are well-established in many legal traditions, but it means victims - no matter how deserving - cannot access the TFV’s reparations mandate. Victims may be able to benefit from the Fund’s assistance mandate, such as occurred when Bemba was acquitted, but this is often subject to severe resource constraints and moreover, it is not tied to criminal guilt.

Assuming a trial does go ahead, there are noted difficulties with representing the client group - problems with communication infrastructure and logistics to remote communities and language barriers in accepting instructions and keeping the group informed of developments. Depending on their circumstances, some in the client group may have different hopes and expectations about redress than other victims, for example by placing more importance on criminal guilt than on individual awards or on rebuilding community infrastructure. External teams for the Defence and for Victims in ICC trials have been criticised for their lack of diversity due to the fact that the ICC’s legal aid budget has no provision for team members’ relocation and travel costs (including home visits from The Hague back to the relevant country) and standard work benefits, and there is a lack of certainty in their visa conditions in the Netherlands.⁷⁰ This inequality in resources (up to 30–40% less) compared to that of officials from the Office of the Prosecutor raises deep concerns about the equality of arms between counsel, and thus the conduct of justice itself.⁷¹

If the national government is amenable and has the resources (its own or donor funds) to pursue credible trials, a process within the country can bring about more lasting reconciliation between communities and truth-telling, and thus better tackle the underlying social and political roots of the violence (which is one of the goals of reparation). Pursuing justice in a remote forum (The Hague) is not an ideal form of justice: the gacaca courts in Rwanda were criticised for their lesser protections for the accused and for passing lower sentences, but it brought justice down to the community level and allowed broad participation in accordance with cultural expectations. In this way, while an ICC conviction is a powerful statement against impunity, this extraordinarily expensive, lengthy and remote mechanism has serious flaws which may result in less benefit to victims than alternative models closer to home.⁷²

4. Reparation awards in foreign courts and under foreign government administrative schemes

Member States participating in UN peacekeeping enjoy full immunity from local claims of all types as a result of the UN’s broad immunity.⁷³ There have been a handful of cases in foreign courts alleging breaches of the laws of war during a State’s participation in UN peacekeeping or NATO operations, but these have turned on specific fact situations and victims have encountered considerable obstacles. One such case involved the efforts by the Mothers of Srebrenica in bringing an action against the Dutch government for the liability of Dutch forces (DutchBat) in failing to protect around 300 Bosnian Muslim men and boys from being killed by Serb forces during the breakup of the former Yugoslavia. The Dutch Supreme Court finally held that liability could be established to the extent that DutchBat acted under the command of the Netherlands, but damages should be limited to the victims’ chance of survival in the circumstances, which it assessed at only 10%.⁷⁴ Another example was the Bridge of Varvarin case(2003), in which 35 civilian relatives and victims of a 1999 NATO airstrike on a bridge in the rural Serb enclave of Montenegro failed to convince the German Federal Court of Justice that Germany had breached its international and/or domestic obligations when it allegedly knew of and approved the targeting of the bridge.⁷⁵

4.1 Actions in United States Courts

The so-called Alien Tort Statute (ATS), adopted in the US Judiciary Act of 1789, provides 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”. By its text it seemingly asserts that any violation of the law of nations, wherever it occurs, may be pursued in US courts, thus opening an apparently valuable pathway for victims or their advocates to pursue redress. The first landmark case to this effect was Filártiga v Peña-Irala (1980), which ruled that foreign victims of international law violations could sue the perpetrators for civil redress in US courts, even for acts which occurred completely abroad, if the alleged offender was present in the US.⁷⁶ Since then a series of cases have elaborated on the scope of this provision, first by finding that the phrase ‘law of nations’ in the ATS referred only to conduct by a State (so a non-State actor could not violate it, no matter how repugnant its acts)⁷⁷, and secondly (in contrast) that acts comprising genocide or war crimes (such as official torture) were prohibited in international law whether committed by a State or a non-State actor, so a private individual or an unrecognised State could be held accountable for them.⁷⁸ Lastly, courts ruled that “the ATS is a jurisdictional statute creating no new causes of action…”⁷⁹ and that only a narrow class of civil cases can be pursued under it, i.e. those where the cause of action is universally recognised by the law of nations as a core prohibited norm, the norm is binding or obligatory, the norm is specific in its cause of action, and no domestic policy factors make the case non-justiciable.⁸⁰ Given these restrictions, there is now real doubt about the ability to use the ATS to remedy international crimes, even those universally recognised as settled norms (for example the prohibitions on targeting non-military facilities, of conducting disproportionate strikes or of using prohibited types of weapons).

Recent ATS claims have been directed not at wartime abuses by State organs but at US companies allegedly aiding or abetting foreign police or military forces to violate human rights⁸¹, or engaging in serious human rights abuse/torture while performing contractual obligations to the US military (such as conducting ‘enhanced interrogation’ of detainees in overseas prisons⁸²). These cases have established further that the claim must “touch and concern” the US “with sufficient force”, and something more than just having a corporate headquarters in the US was required.⁸³

There are further difficulties with securing assets to satisfy compensation awards: in Kadic v Karadzic one set of plaintiffs was awarded USD745 million and the other USD4.5 billion, which was a significant and hard-fought legal win for the victims, but neither award was anywhere near enforceable in practice.⁸⁴ The same was true for the successful plaintiff in Filártiga. These defendants had no or very little assets in the US, and there is no ability in international law for successful claims against individuals to be made enforceable against the State on whose behalf they acted.⁸⁵ These victories were therefore rather Pyrrhic.

Further, although the ATS in its terms allows actions against foreign States themselves, these cases (or ones against their organ(s), e.g. its armed forces) will overwhelmingly fall foul of well-established international rules on foreign State immunity as incorporated into national law.⁸⁶ A US Appeals Court confirmed this in Siderman de Blake v Republic of Argentina (1992), holding that even the violation of the prohibition against torture did not result in a waiver under the FSIA.⁸⁷ This was confirmed in 2012 when the International Court of Justice dismissed the idea of there being any general exception in international law to foreign State immunity, even for the most heinous of international crimes.⁸⁸ Despite this, US domestic law does allow an exception if the defendant State is on the US State Department’s ‘State Sponsors of Terrorism’ list.⁸⁹ Even if the defendant State is on the State Department’s list, the ability of victims to obtain enforcement orders is of course dependent on them having suitable assets in the jurisdiction in the first place - the litigation to seize assets belonging to Iran’s Bank Melli for distribution to US victims of terrorism⁹⁰ is a rare example.

The last possibility victims and advocates might consider is to bring a case against the US State itself (or its organ(s), such as its armed forces). There is no possibility of bringing such a case in a foreign court, as the US (along with many other military powers deploying troops abroad⁹¹) concludes Status of Forces Agreements (SOFAs) with host governments which shield their armed forces from all local criminal and civil process. For example, the United States’ agreement with the government of Iraq excluded all claims against US soldiers for operational activity.⁹² Further, the law on state immunity will apply. Further, if a case was brought against the US or its organ(s) in the US’ own courts, it will face different procedural bars in domestic law, particularly the ‘act of State’/acta iure imperii doctrine which prevents cases being brought against the US government for any official (public) acts.⁹³ Other States have similar legal rules barring cases against their governments for wartime acts.⁹⁴ This has proven to be a substantial barrier for many victims.

4.2 United Kingdom

However, some States have national laws specifically allowing compensation claims to be made against their governments for official acts. The UK and other member states of the European Convention on Human Rights (ECHR) are obligated to respect core ECHR rights (such as the prohibitions against arbitrary killing and torture) whether during peacetime or conflict.⁹⁵ UK law thus allows claims to be brought against public officials under the Human Rights Act (1998)⁹⁶ or in common law tort. Further, the European Court on Human Rights has ruled that core ECHR rights apply outside of a member States’ territorial boundaries if the State has ‘effective control’ of territory (as the UK had during its occupation of Basra/Southern Iraq).⁹⁷ This affords the opportunity for victims of international crimes committed by UK service members abroad to pursue compensation claims. In fact, the UK’s campaigns in Iraq and Afghanistan saw an unprecedented number of claims for compensation brought against the UK’s Ministry of Defence.⁹⁸

The ‘Camp Breadbasket’ incident was one infamous incident leading to a series of claims. In May 2003 during their occupation of Southern Iraq, UK soldiers taking part in ‘Operation Ali Baba’ (which was aimed at stopping looting from a humanitarian aid distribution centre situated just outside Basra⁹⁹) forced a number of Iraqis to strip naked and participate in sexually humiliating acts which were jeered at and photographed by many UK soldiers [41]. In 2005 three soldiers were court martialled, found guilty and dishonourably discharged for taking and sharing the photographs or for failing to have the “moral courage” to report the abuse to their superiors (but not for any war crime) [42]. As far as damages went, the Iraqi victims were represented by Phil Shiner, the Birmingham-based Principal and Founder of Public Interest Lawyers (International) Ltd., in their bids for compensation from the Ministry of Defence. In 2008 a further five Iraqis made compensation claims through Leigh Day LLP, another large UK-based claimant-only law practice [43].

Also in 2003, Iraqi civilian Baha Mousa suffered 93 instances of abuse leading to his death after being taken into detention at the UK military base in Basra. Eight other Iraqis were also subject to serious abuse. Three members of the Queen’s Lancashire Regiment were prosecuted (only one was convicted) for inhumane treatment as a war crime under the UK’s International Criminal Court Act 2001 (‘ICC Act’).¹⁰⁰ The case spawned a range of related high-profile litigation, including civil proceedings seeking damages for injuries.¹⁰¹ In 2008 Baha Mousa’s father and the eight other Iraqis were awarded a total sum of near £3 million for the abuse that had been suffered [44]. There were also successful judicial review proceedings instituted on behalf of relatives seeking a public inquiry into Baha Mousa’s death; eventually a damning public inquiry was set up.¹⁰² Throughout these proceedings, the relatives were also represented by Phil Shiner and his firm.

As a result of his prominent role in pursuing Iraqi cases against the Ministry of Defence, Shiner became a legal celebrity. In 2004 he was named Human Rights Lawyer of the Year, an award given jointly by the UK human rights organisations Liberty and JUSTICE, for “his tremendous skill, tenacity and dedication to fighting for justice”. In 2007 he was named the Law Society’s ‘Solicitor of the Year’ [45]. In 2010 the UK Labour Government set up the Iraq Historic Allegations Team (IHAT) to investigate allegations of abuse and prepare evidence which could be taken to criminal trials. Shiner’s firm, PIL, was responsible for bringing 65% of the 3392 allegations received by IHAT (most of the rest were brought by Leigh Day LPP) [46].

However, in 2014 the Al-Sweady Public Inquiry into the high-profile ‘Battle of Danny Boy’¹⁰³ found that “all the most serious allegations… were wholly and entirely without merit or justification”.¹⁰⁴ In January 2016 Penny Mordaunt, then UK Minister for the Armed Forces, described the “parasitic” behaviour of law firms “churning out spurious claims against our armed forces on an industrial scale” as being the enemy of justice¹⁰⁵, and then Prime Minister Theresa May used her 2016 Conservative Party conference speech to vow never again to allow “activist left-wing human rights lawyers” to “harass” British soldiers [47]. IHAT came under further pressure from the House of Commons Defence Committee, which delivered a scathing report of its failings and mismanagement and labelled it “an unmitigated failure for both ‘victims’ and military personnel alike”.¹⁰⁶

As such, the two UK law firms which had brought the vast majority of the claims – PIL and Leigh Day - were investigated by the Solicitors’ Regulation Authority for possible breaches of professional standards. In 2017 Shiner was struck off the roll of solicitors after being found guilty of multiple charges of misconduct for paying people in Iraq to find clients to seek civil compensation and to bring forward allegations requiring criminal investigation¹⁰⁷ (Leigh Day, which brought over 300 “successful” mistreatment claims regarding Iraq, was cleared of misconduct) [48, 49]. Although these findings did not involve any non-Iraq claims, the UK government used the opportunity afforded by the scandal to close both IHAT and Operation Northmoor, its Afghanistan equivalent.

Shiner’s misconduct aside, the closure of the investigations indicated a national dialogue increasingly hostile of the idea that UK forces committed war crimes and that their victims deserved compensation.¹⁰⁸ The Conservative Party’s manifesto for the 2019 general election promised new legislation designed to limit what it called “vexatious legal claims that undermine our Armed Forces”¹⁰⁹ within 100 days of gaining office; the result was the Overseas Operations (Service Personnel and Veterans) Act (2021). Although the Act in its final form did not make any changes to the regime governing the prosecution of criminal conduct by UK service personnel¹¹⁰, it eliminated any possibility of a compensation claim (even for serious abuse, such as in the Baha Mousa case) being brought more than six years down the track, whatever the reason for the delay.

As many Iraqi and Afghan war crimes investigations and prosecutions began as civil compensation claims for which victims need to navigate a complex foreign judicial system, the Act’s six-year longstop raises the real possibility that not only many victims will not be able to claim compensation in time, but the criminal conduct giving rise to the claims will evade scrutiny as well. Needless to say, the vilification of legal advocates for political gain could also result in a ‘chilling effect’ amongst some in the British legal community who take on pro-claimant war crimes work, which also will impact on future claims.

4.3 Ex gratia compensation

Aside from the difficulties of claiming reparations through a court process, many payments have actually been made by applying in theatre to the relevant States’ ex gratia compensation budget. Contrary to reparations paid according to a court verdict of unlawfulness, these are payments arising out of military activity considered lawful under the international laws of war (as well as activity that is unlawful but unacknowledged as such). They often cover ‘collateral damage’ - those victims and damage that is incidental to a lawful targeting operation. Many States have adopted tactical payment schemes to cover ‘collateral damage’ losses in recent theatres of war, such as in Iraq, Afghanistan, Somalia and Syria. Below some of the recent practice of ex gratia compensation by States which deploy their armed forces overseas is examined.

The US did not have a regular compensation scheme until the passage of its Interim Regulations for Condolence or Sympathy Payments to Friendly Civilians for Injury or Loss That is Incident to Military Operations¹¹¹ in December 2020. Before this, the US mostly used its development arm USAID to assist individuals and families in Afghanistan and Iraq with livelihood, medical issues and rehabilitation of community facilities. The UK had a battlefield redress scheme - its Basra Area Claims Office paid £2.1 million to settle 1145 claims made over the period 2003–2009¹¹², while its Area Claims Office in Afghanistan paid £825,000 to settle around 1100 claims made over the period 2007–2009. The vast majority of funds paid were for property damage¹¹³, with the average payment being a mere GBP3,650 [51]. Australia also had a scheme (the Tactical Payments Scheme (introduced in 2009)) but it was only used to make one payment until Australia withdrew from Iraq [52]. Other troop contributing nations in Iraq and Afghanistan including Poland, the Netherlands and Canada, all had ‘act of grace’ schemes with varying levels of coverage and generosity.¹¹⁴ In 2004 NATO established a Claims Office in Afghanistan to receive and determine non-combat losses suffered by civilians¹¹⁵, and it introduced a policy on compensating collateral damage in ISAF operations some years later.¹¹⁶ AMISOM also made efforts to track and compensate collateral damage during its involvement in Somalia, although systems were rudimentary.¹¹⁷

There is substantive anecdotal evidence that when international forces provide compensation (monetary and/or in-kind help) to victims, especially if combined with explanations and apologies for harm, civilian hostility toward international forces decreases. The investigation, acknowledgement and compensation processes help to dignify the family, fulfil local expectations about gestures required when loss is inflicted¹¹⁸, and ameliorate what would otherwise be considered a gross lack of regard for the lives of civilians and a general impunity toward their suffering.¹¹⁹

These schemes have however attracted much criticism. Whilst they have paid out many thousands of dollars to victims, all schemes have been an afterthought, patchy in coverage, clumsy in operation and often at the whim of the local military commander. This has resulted in resentment, the impression that foreign forces can act with impunity, and gross inequalities between victims even when they have suffered near-identical loss. These feelings were often exacerbated when victims had no alternative remedy under Status of Forces Agreements (see above) which shield foreign forces from local court process.

Further, often they were not easy to access. Eligibility requirements varied (and were particularly difficult to satisfy when there were joint operations with local or other foreign forces), claims were often difficult to make (forms had to be completed in the foreign language, there were often extensive documentation requirements which were extremely difficult to obtain in a warzone, and many claims needed to be lodged at foreign military bases which were often in inaccessible locations). Many victims were too fearful of dealing with foreign forces, rejected the notion of no-fault compensation, or simply did not know about the schemes in time to claim.¹²⁰ Lastly, the relationship between an ex gratia payment made in theatre and a later claim in court (or to a government-run compensation scheme) that the military act giving rise to the victim’s loss was in fact unlawful, still remains unclear.¹²¹ All this means that victims and/or their advocates face substantial difficulties in even making claims against these funds, let alone having the claims accepted and payment made.

5. Conclusions

Compensation for loss, particularly war crimes and crimes against humanity committed during conflict, is a right in international law which all nation States (and non-State actors) are obliged to respect. This is particularly the case with respect to egregious violations such as torture, genocide and mass killings. This chapter has surveyed the practice of international tribunals which have operated in the wake of mass atrocity, finding all too often that the transitional justice process has proven very difficult for victims and/or their advocates to access, with the result that the process fails the very people it ostensibly tries to assist. Instead, court procedures are focused for security, political and economic reasons on criminal prosecutions, and where repair of victims has been recognised, either in a court-mandated award or in an administrative scheme, it has too often comprised only symbolic gestures or general community building. These aspects are important elements of broader justice, but they do not take the place of compensation to repair individual lives and livelihoods.

Further, it has been extremely difficult for victims and advocates working on their behalf to bring individual claims against foreign military forces (whether this is in local courts or in the courts of the foreign military power) for a range of procedural and jurisdictional reasons. Even the minority of court cases in the US and the UK which have managed to navigate the restrictions of domestic laws to win large compensation awards too often have faced difficulties in enforcement. These procedural restrictions appear destined to increase rather than diminish in coming years. Lastly, although important in dignifying victims of collateral damage or military mistake, ex gratia schemes are also still too ad hoc in their operation, coverage and outcomes to meet the demands of justice.

The international community as a whole bears responsibility for the difficulties faced by victims everywhere in accessing compensation, because it is they who maintain the greater focus on criminal outcomes, prize a quick return from conflict to international cooperation and trade, and fail to donate sufficient funds to finance compensation where indigence prevents repair. The road for victims, their support groups and their legal advocates will be long and difficult to turn this self-serving situation around.

Additional information

Parts of this chapter were previously published in the doctoral thesis by the same author: Alexandra Fowler, State-Based Compensation for Victims of Armed Conflict: Recent Developments in Practice. 2018-02-28. Unpublished doctoral thesis. The University of Sydney. Available from: https://ses.library.usyd.edu.au/handle/2123/20055.