General Enquiries into Reparation for War Victims under International Law

Abstract

This work aims to assess some theoretical discussions about legal standing of reparation for war victims in international law and its legal foundation in contexts of war. The first enquiry leads to two approaches, one expansive idea of reparation and the other more restrictive. Under the first one, reparation is seen as a general right of customary character, directly conferred to individuals as a result of its peremptory nature. Following the restrictive tack, reparation is the result of breaches of some but not any right or international obligation, as there is no binding instrument embodying such a general right, nor is possible to identify peremptory rules (jus cogens) that can be universally applicable. Furthermore, States remain the leading actors in building international legal foundation for reparations and entitlement for individuals, and remedies should stand more as States’ obligations rather than individuals’ rights in settings of mass atrocities. The second enquiry sheds light on international law as source of reparation for war victims. Both human rights and humanitarian law applies to determine when the obligation to make reparation arises, but context conditions must be accounted in order to know which law prevails.