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Access to Justice as a Human Right$
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Francesco Francioni

Print publication date: 2007

Print ISBN-13: 9780199233083

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199233083.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 08 December 2021

Access to Justice and Compensation for Violations of the Law of War

Access to Justice and Compensation for Violations of the Law of War

(p.95) 3 Access to Justice and Compensation for Violations of the Law of War
Access to Justice as a Human Right


Oxford University Press

This chapter describes the access to justice by individuals in order to obtain compensation for violations of the law of war. It is shown that Resolution 2005/35 sets out basic principles and guidelines for a remedy and reparation for victims of both violations of human rights and serious violations of international humanitarian law (IHL). It is also stated how difficult it is for a victim to obtain compensation. The major hurdles include immunity of states and international organizations from civil jurisdiction in foreign states, immunity of state property, enforcing judgments on damages in foreign states, immunity of state officials, political question doctrine, the inter-state character of IHL, the non-self-executing nature of IHL, International Law Commission (ILC) draft articles on state responsibility and the individual, peace settlements and reparations for law of war violations, and statutory limitation under domestic law. Moreover, the proceedings for recovering damages before the International Criminal Court (ICC), the two ad hoc international tribunals, and the hybrid tribunals are considered. Examples of mechanisms that allow the victim to obtain compensation are also addressed.

Keywords:   access to justice, compensation, violations, law of war, international humanitarian law, victim, International Law Commission, International Criminal Court

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