CYIL 2015

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.

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