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State-Based Compensation for Victims of Armed Conflict STATE-BASED COMPENSATION FOR VICTIMS OF ARMED CONFLICT: RECENT DEVELOPMENTS IN PRACTICE Alexandra Lian Fowler, B.Sc (Hons), LLB (Hons), MA A thesis submitted in fulfilment of the requirements for the degree of Doctor of Juridical Studies School of Law University of Sydney 2018 STATEMENT OF ORIGINALITY This thesis contains no material which has been accepted for the award of any other degree or diploma at any university or other tertiary institution and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. I give consent to this copy of my thesis, when deposited in the University Library, being made available for loan and photocopying subject to the provisions of the Copyright Act (1968) (Cth). ________Alexandra Fowler________ ACKNOWLEDGEMENTS I wish to acknowledge the support of the professional staff of Sydney Law School and of Sydney University Library regarding research technique, as well as of the Australian Postgraduate Awards for vital financial support throughout the years researching and writing this thesis. Sincere gratitude goes to my supervisors at Sydney Law School - Professor Ben Saul, Associate Professor Emily Crawford, and in the initial stages, Professor Gillian Triggs. I am deeply grateful for their extremely helpful insight and advice, for the patience they have shown in evaluating and guiding repeated iterations of this work, and for keeping me focused and on track. It would simply not have been possible to complete this thesis without their expertise and support. My late father, Emeritus Professor (UNSW) Robert Thomas Fowler BSc PhD DSc (Eng), has been an immense source of inspiration. His quest for excellence in his academic career made an indelible mark on me, and it has been my desire to produce a body of work that would have made him proud. Sincere thanks go also to my husband Belal, who helped with the final formatting of this work and who has shown considerable forbearance during the countless hours I have spent at my desk. This thesis is dedicated to my three young daughters: Zara, Maryam and Rozhin. They have been a very important part of my motivation for studying; particularly so that they might understand the value of vision, commitment and perseverance, and be inspired to the highest levels of achievement in whatever they pursue in their lives. May this thesis help them and their peers inherit a more just world. ---O--- TABLE OF CONTENTS ABSTRACT ......................................................................................................................................... 1 1 VICTIM COMPENSATION FOR BREACHES OF INTERNATIONAL HUMANITARIAN LAW ............................................................................................................... 2 1.1 Introduction ........................................................................................................................... 2 1.2 Key Legal Frameworks and Issues ........................................................................................ 3 1.3 The Practice of Wartime Indemnities Until World War II .................................................... 8 1.3.1 The Compensation upon Defeat Model ......................................................................... 8 1.3.2 Post-WWII German Reparation – A New Model ........................................................ 11 1.4 History of and Developments in Normative Frameworks ................................................... 13 1.4.1 Article 3 of Hague Convention IV 1907 – Time for Reinterpretation ......................... 13 1.4.2 The Basic Principles (2000) ........................................................................................ 19 1.5 Debates in the Legal Scholarship ........................................................................................ 21 1.6 Victim Compensation in the Context of the Law of State Responsibility .......................... 25 1.7 Diplomatic Protection.......................................................................................................... 29 1.8 Thesis Structure ................................................................................................................... 33 1.9 Definitions ........................................................................................................................... 35 1.10 Thesis Methodology ............................................................................................................ 37 2 CIVIL REDRESS IN INTERNATIONAL TRIBUNALS ............................................................ 39 2.1 Introduction ......................................................................................................................... 39 2.2 International Compensation Tribunals ................................................................................ 40 2.2.1 The Iran-United States Claims Tribunal ...................................................................... 41 2.2.2 The United Nations Compensation Commission (UNCC) .......................................... 43 2.2.3 Ethiopia-Eritrea Claims Commission (EECC) ............................................................ 48 2.2.4 The Conflict in Darfur, Sudan ...................................................................................... 52 2.3 Compensation in Other Recent Conflicts ............................................................................ 54 2.4 Civil Redress for Victims in the ICC .................................................................................. 60 2.5 Conclusions ......................................................................................................................... 65 3 COMPENSATION FOR WAR DAMAGE IN HUMAN RIGHTS MECHANISMS ................. 67 3.1 Introduction ......................................................................................................................... 67 3.2 Human Rights Obligations, and the Lex Generalis/Lex Specialis Argument ..................... 67 3.3 The Right to an ‘Effective Remedy’ in IHRL ..................................................................... 70 3.4 The Core Human Rights Treaties ........................................................................................ 76 3.5 The Regional Human Rights Conventions .......................................................................... 82 3.5.1 The European Convention on Human Rights (‘ECHR’) ............................................. 83 3.5.2 The Inter-American Convention on Human Rights (‘IACHR’) .................................. 86 3.5.3 African Charter on Human and Peoples’ Rights (‘ACHPR’/ ‘Banjul Treaty’) ........... 90 3.6 Conclusions ......................................................................................................................... 92 4 EXTRATERRITORIAL CIVIL JURISDICTION AND PROSPECTS FOR STATE LIABILITY ................................................................................................................................... 94 4.1 Introduction ......................................................................................................................... 94 4.2 Universal Criminal Jurisdiction........................................................................................... 96 4.3 Compensation Adjunct to Criminal Proceedings: the Belgian Example ............................ 99 4.4 Extraterritorial Civil Jurisdiction: The United States’ Alien Tort Statute ......................... 105 4.5 Implications for the Practice of Universal Civil Jurisdiction ............................................ 114 4.6 Observations and Conclusions .......................................................................................... 118 5 SOVEREIGN IMMUNITY AND CIVIL CLAIMS IN DOMESTIC COURTS ....................... 122 5.1 Introduction ....................................................................................................................... 122 5.2 United States...................................................................................................................... 123 5.3 Greece ................................................................................................................................ 125 5.4 Italy .................................................................................................................................... 127 5.5 The ICJ’s Decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (2012) ...................................................................................................................... 130 5.6 Challenging Foreign State Immunity ................................................................................ 132 5.6.1 Jus Cogens Violations ................................................................................................ 132 5.6.2 A ‘territorial tort’ exception? ..................................................................................... 138 5.7 Domestic Procedural Bars to Civil Claims........................................................................ 139 5.8 Conclusions ....................................................................................................................... 140 6 VICTIM COMPENSATION IN TRANSITIONAL JUSTICE .................................................. 143 6.1 Introduction ......................................................................................................................
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