Nový trend v odpovědnosti státu: individuální právo na odškodnění obětí závažných porušení mezinárodního humanitárního práva?
New Trends in State Responsibility: Individual Claims for Compensation by Victims of Serious Violations of International Humanitarian Law?

Summary/Abstract: The traditional concept of the State responsibility for internationally wrongful acts has been based on mostly bilateral inter-state relations. It includes the obligation of responsible State and the correlative right of the injured State to a cessation of the illegal act and to a reparation of damage. However, there are certain obligations in contemporary international law, in particular in the fields of human rights and international humanitarian law (IHL), which operate erga omnes (customary rules) or erga omnes partes (some multilateral treaties). In case of violation of such obligations, any State may claim a cessation and reparation for a directly injured State or other beneficiaries of the breached obligation. As individuals are beneficiaries of the obligations in the above mentioned areas, they may receive a compensation of loss and damage suffered. It may be of great importance in case of violations of IHL applicable in armed conflicts. However, the correlative right of individual victims of violations of the rules of IHL to claim compensation is very limited, if any. Therefore this contribution aims at analyzing possible ways how the individual victims could claim compensation under international law. Leaving aside the traditional mechanism of diplomatic protection, there seem to be basically three possible procedural mechanisms: (1) national courts, (2) international courts (such as the European Court of Human Rights or the International Criminal Courts) and (3) compensation commissions. The last ones can better address the compensation for violations of IHL because they have no problem with the jurisdictional immunity of States (an obstacle to national courts) and are not constrained to operate within the specific treaty regime (as regional human rights courts do). At this stage, it would be premature to conclude that the right to compensation of individual victims was already well established as lex lata. Nevertheless, it seems to be a very interesting element of progressive development of international law.

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