Introduction
International humanitarian law (IHL) is in crisis. With over 130 ongoing conflicts around the world, and disparate factors including climate change, water scarcity and emerging technology increasing both the spread of violence and the impact on civilians,Footnote 1 the place of IHL in minimizing human suffering in war is under immense pressure. In its 2024 report on International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, the International Committee of the Red Cross (ICRC) sounded the warning bell on the growing trend by States to seek out the lowest common dominators in IHL compliance. In its most explicit statement to date, it held that
[t]here is [a] corrosive tendency at work diminishing IHL’s ability to save lives. Over several decades now, expedient interpretations of IHL – often proposed at the height of armed conflict in order to preserve states’ leeway to kill and detain – have compounded to undermine its protective force. In one conflict after another, some states have sought an increasingly expansive vision of what is permissible, and a contracted notion of what is considered prohibited. … IHL’s protective power is under threat in other, more insidious ways as well. Chief among them is that the law’s permissive exceptions are swallowing its prohibitive rules. IHL owes its credibility to its pragmatism: many of its prohibitions have narrow exceptions that are intended to ensure that the law takes military necessity into account and does not confer humanitarian protections that an adversary can exploit for military advantage. … [N]arrow exceptions [are becoming] wide legal loopholes for circumventing vital protections.Footnote 2
The UN Secretary-General has underscored this statement, highlighting how “[i]nconsistent standards, assertions of exceptional circumstances and hollow calls for compliance [have] undermined respect for international humanitarian law”.Footnote 3 The ICRC’s chief legal officer, Cordula Droege, has called upon belligerents to uphold “not just the rules, but the spirit of the law”, as to do otherwise amounts to a “culture of lip service to IHL” rather than a culture of compliance where parties “steer well clear of violations and hold their forces to the highest standards”.Footnote 4 Dorsey and Moffett have termed this trend the “warification” of IHL, where interpretation and application of IHL are put under pressure, distorting IHL for short-term tactical or operational military ends that undermine its purpose of restraining force against those not taking part in hostilities and militaries’ long-term strategic goals of legitimacy and winning hearts and minds.Footnote 5
The lack of restraint and protection of civilians in contemporary conflicts is leading to increased criticism of IHL implementation.Footnote 6 This situation is a far cry from the humanitarian promise originally described by Pictet, with the Geneva Conventions, and later the Additional Protocols, being aimed at preventing “civilians from becoming the direct victims of war”.Footnote 7 Instead IHL has been labelled as a cynical justifier for ever-increasing civilian harm: “It was ‘awful but lawful’, goes the refrain that might follow a bout of devastating civilian casualties.”Footnote 8 Daniele goes as far as to suggest that some belligerents are “gaming” the rules of IHL to make atrocities legally justifiable in terms of proportionate damage,Footnote 9 by emphasizing superficial adherence to those rules rather than substantive compliance with IHL obligations.
This critique is not new. The role that IHL plays during military operations has long been the subject of debate – arguments have been made that some of the concepts which govern it, such as the distinction between non-international and international armed conflict, are overly technical and limit its protective function.Footnote 10 Similarly, the indeterminate nature of key principles such as distinction and proportionality enables combatants to set their own rules on mistaken identification of civilians or collateral damage,Footnote 11 and it has further been argued that IHL inadequately recognizes much of the harm inflicted on civilians,Footnote 12 focusing narrowly on grave breaches or war crimes while overlooking the cumulative and reverberating effects of attacks and the indirect impact of prolonged exposure to conflict.Footnote 13
This article addresses some of these critiques and argues that to return to a proper equilibrium between the principles of humanity and military necessity in IHL, it will be necessary to consider remedying civilian harm, for what are ostensibly lawful attacks, as a matter of due diligence. Historically, enforcement of IHL has dealt with grave breaches through criminal investigations and trials. This article instead argues that greater effect can be obtained by adopting a broader perspective, complementing the emphasis on criminal accountability with an increased focus on enforcement through civil justice, including through judicial, operational and administrative action. We argue that while IHL may mean that civilian harm caused through a lawful attack (misidentification or collateral damage) does not arise to a breach, the failure to remedy such harm is wrong. As a matter of due diligence and respect of civilians in armed conflict, ensuring a procedure for civilian harm claims is part of the duty of constant care to protect civilians from suffering, is strategically and operationally useful, and is part of a more fundamental commitment of humanity and restraint in war.
There has been increased academic attention to the possibility of such legal mechanisms.Footnote 14 At the international level, administrative bodies have been developed to support claims in the future; one example of this is the Council of Europe Register of Damage for Ukraine, with work ongoing to create a claims commission.Footnote 15 At the national level, State practice on redressing wartime harms is mostly confined to transitional justice initiatives following non-international armed conflicts, and is heavily dependent on political factors.Footnote 16 Most States do not have laws or policies in place to formally remedy the civilian harm caused by their military operations, including operations abroad. Instead, States, and some non-State armed groups, use redress measures in an ad hoc fashion and to support their strategic goals of winning hearts and minds, or at least managing civilian discontent, rather than admitting fault or providing an adequate remedy.Footnote 17
In this article, we begin by underscoring the accountability gap for redressing harm caused by armed conflict. While criminal justice is often touted as the prevalent way to deal with grave breaches of IHL as war crimes, trials are few and far between. The International Criminal Court (ICC), established in 2002 as a global court and now with 125 States Parties, has only seen eleven convictions, including for war crimes, and only of rebels in Africa.Footnote 18 Throughout the engagement with such international criminal justice mechanisms, there has been increasing criticism aimed at the narrow nature of these criminal trials.Footnote 19 In the absence of an effective right to redress in IHL itself, we examine the emerging State practice of civil litigation under domestic law and the operational practice of civilian harm mitigation and response (CHMR). While practices reflect divergent approaches to responding to civilian harm, we argue that this dynamic emerging practice can contribute to better respect for many of the key provisions found in IHL; central to this is the recognition and empowerment of civilians as active agents capable of asserting their rights. In the last section of the article, we provide some insights into how such developments can facilitate a more humane interpretation of IHL. Drawing on proposals by other commentators, we root our analysis in a re-reading of the principle of precaution and in an internal due diligence obligation to “ensure respect” on the part of States themselves.Footnote 20 The key argument here is that such mechanisms can lead to a more teleological approach towards interpreting IHL, focusing on the purpose and spirit of the law rather than merely the letter of the law.
Redressing the accountability gap
A glaring gap in IHL enforcement is the lack of an effective right to reparation for victims for harm suffered during armed conflict. It is a settled rule of international law that the right to reparation is a consequence of an internationally wrongful act, but this right is held by States.Footnote 21 IHL treaties similarly establish the liability of a party to conflict which is responsible for violations to pay compensation,Footnote 22 but the corresponding right to compensation is a right of State parties. The existence of an individual right to reparation in IHL has been the subject of much scholarly debate.Footnote 23 A major difficulty under IHL is recognizing the legal standing of individuals – in the absence of an explicit individual or collective right to reparation in IHL for civilians harmed in conflict, victims are in practice reliant on domestic law for a remedy or, in international conflict, on their own State to bring a claim against an enemy State on their behalf.
The International Court of Justice (ICJ) has referred to a right to reparation for damage caused to natural persons on at least three occasions in armed conflict/occupation,Footnote 24 although it has declined to recognize such a right as a rule of jus cogens, even in respect of egregious violations.Footnote 25 The non-binding 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation also recognize an individual right to reparation for “serious violations” of IHL;Footnote 26 however, victims are barred by State immunity rules from seeking a remedy in their own courts against a foreign State and often find any individual right to reparation waived by their own State in peace settlements. As the ICJ held in 2012,
against the background of a century of practice in which almost every peace treaty or post-war settlement has involved either a decision not to require the payment of reparations or the use of lump sum settlements and set-offs, it is difficult to see that international law contains a rule requiring the payment of full compensation to each and every individual victim as a rule accepted by the international community of States as a whole as one from which no derogation is permitted.Footnote 27
In sum, there remains a “contested understanding” of the extent, if any, of a right to reparations for victims in armed conflict, at least where harm falls outside the narrow categories of international crimes (including war crimes) or gross violations of human rights.Footnote 28 In contrast to human rights law, IHL continues to view civilians primarily as objects of protection rather than agents or rights-holders.Footnote 29
In terms of eligibility for redress, there are also broader issues. In making allowances for the chaos of war, IHL practitioners tend to gravitate towards prohibiting conduct at the extremes. It could be argued that the current IHL compliance culture creates a bureaucratic, even gamified approach where “choices and standard operating procedures” routinize the “necessary, if tragic, outcomes of [military] operations”.Footnote 30 The use of the phrase “collateral damage” has the effect of “dehumanizing” the killing of civilians, legitimizing it, and creating a moral void where the double effect of military action is the “unintended tragedy of war”.Footnote 31 This goes to the heart of the challenge of redressing civilian harm during war, where many civilians will suffer terribly but their treatment is unlikely to fall within the parameters of war crimes or serious breaches of IHL, such as to have them legally recognized as “victims”.Footnote 32 Such a lack of recognition has led to considerable legal uncertainty when it comes to reparation for individual harm, with States having discretion to create administrative redress schemes for harm caused by military operations,Footnote 33 which often leaves civilians without recourse when they suffer damage as a result of wartime conduct.Footnote 34 These problems are compounded by the heavy reliance on criminal proceedings as the main mechanism for enforcing IHL.
The “criminalization” of IHL violations
Traditionally, IHL has been enforced through either international or domestic criminal proceedings. At the International Military Tribunal at Nuremberg, the emphasis was on the notion that violations were committed not by “abstract entities” but by specific individuals.Footnote 35 The extreme nature of the violations of international law meant that preference was given to criminal prosecution over other alternatives, such as holding States accountable.Footnote 36 However, the application of criminal law is not without issues, which are compounded when we consider the “criminalization” of IHL violations. It is first worth noting that the structure and application of many IHL treaty provisions do not tend to lend themselves to criminal prosecutions, as noted by Bartels:
Whilst it is a body of law, IHL is usually applied in practice by members of the armed forces who are not lawyers, and as such these “preventative rules” require certain simplicity. IHL provisions therefore logically differ from a criminal code and do not include elements of crimes.Footnote 37
There are plenty of examples of instances where IHL is perhaps insufficiently clear to establish elements of a crime. There has been debate about the wording of an “imperative” needFootnote 38 and the nature of proportionality,Footnote 39 and even fundamental, underlying concepts such as the notion of military necessity have been the subject of intense discussion.Footnote 40 Varying interpretations of IHL provisions have led to differing views regarding the criminality of the alleged conduct.Footnote 41
As elements of crimes are key factors in securing a conviction and form the basis for a criminal process, such differences in interpretation have led to many criminal cases becoming hollow. Likewise, many of the obligations found in IHL match up very poorly with criminal proceedings. A prime example of this would be the principle of precautions in attack, including the obligation to take constant care to spare the civilian population, civilians and civilian objects.Footnote 42 Specific precautionary duties are codified in Article 57 of Additional Protocol I (AP I) and include the obligations to do everything feasible to verify the military nature of an objective, to cancel or suspend an attack if it becomes apparent that the objective is not a military one and to take all feasible precautions in the choice of means or methods of attack in order to avoid, or in any event minimize, incidental death or injury to civilians or damage to civilian objects. However, these obligations are not classed as grave breaches of AP I and are thus not subject to the duty to repress such breaches. For a criminal prosecution to succeed, it would therefore be necessary to show that a failure to take precautionary measures was so serious that it constituted an intentional breach of the underlying duty of distinction or, at the domestic level, a culpable disregard for rules of engagement.
More generally, the higher standard of proof – beyond reasonable doubt – applicable to criminal trials is compounded by the challenge of proving mens rea in conditions of armed conflict, where access to locations, material evidence and witnesses will likely be restricted or unavailable and testimony may be affected by the closing of ranks.
The structure of IHL protections can also be difficult to uphold in a criminal law environment. IHL contains a presumption of protection: if the situation is unclear, individuals should be assumed to have the most protected status.Footnote 43 Such presumptions are challenging in criminal prosecution, which contains a presumption of innocence.Footnote 44 These conflicting norms may again make it difficult to establish a clear framework for conviction. In the trial of Stanislav Galić for, inter alia, the war crime of directing attacks against civilians, the International Criminal Tribunal for the former Yugoslavia (ICTY) reiterated that in case of doubt as to the status of a person, that person should be considered to be a civilian. To prove mens rea, however, “the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked” and “the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant”.Footnote 45 As the burden of proof falls on the prosecution, the effective test for protected status becomes much harder to meet.
Such challenges related to enforcing accountability for IHL through criminal law are combined with several other structural difficulties. As the parties to IHL treaties, States have the primary responsibility for ensuring compliance, but criminal proceedings are limited to the responsibility of the individual. This enables States to treat violations as individual faults or exceptions to policy, typically characterizing the perpetrators as “a few bad apples”. This makes it much harder to address systemic issues or systematic violations across a military operation. The preventive function of IHL is also badly served by the fact that war crimes trials are not just ad hoc but also post facto, often taking place years if not decades after the alleged conduct.
This is a broader problem related to investigations by States into their own forces for killings of civilians that may not amount to war crimes, where cases are often dragged out for years and subject to political interference, preventing accountability for wrongdoing and changes in cultures of military practice. In 2022 the UK government established an inquiry (Haddon-Cave) into the deployment of British special forces in Afghanistan between 2010 and 2013, over allegations of IHL violations. Such special forces actions went beyond IHL being over-broadly interpreted to being a cover-up of blatant violations that were ostensibly meant to appear as lawful, such as detaining and executing all unarmed males within an attack area and planting weapons on their bodies in order to designate the killings as lawful attacks against insurgents. The inquiry is ongoing but senior military and government officials have already acknowledged a failure within command to refer such unlawful actions to the police, despite the actions occurring nearly fifteen years ago.Footnote 46 In Australia, the Inspectorate-General opened an investigation into allegations of war crimes committed by Australian special forces in Afghanistan between 2005 and 2016; the final Brereton Report, published in 2020, found credible information to conclude that special forces had unlawfully killed thirty-nine Afghans in twenty-three separate incidents.Footnote 47 One Australian soldier was finally charged in 2023 over the 2012 killing of an unarmed Afghan civilian, but only after a headcam video of the incident emerged – his trial began in October 2025. Criminal trials, especially for war crimes, give a soda-straw view of civilian victims by limiting it to those who see a successful conviction. War crime victims are just the tip of the iceberg of the harmed civilian population in war, and as such, criminal law is an imperfect tool for the enforcement of IHL and the provision of civilian protection and vindication. Because of this, there is an increasing turn towards using processes within international human rights law (IHRL) as a more responsive avenue for redress.
IHRL and the right to an effective remedy in war
Under IHRL, the right to an effective remedy has been a significant enabler of both litigation and advocacy for war victims to receive redress. Even where IHL is treated as lex specialis in dealing with the conduct of war, IHRL continues to apply, including to fill gaps in IHL.Footnote 48 This is particularly relevant for the right to a remedy. However, a major stumbling block for triggering the secondary obligation of remedy under IHRL in times of war is demonstrating a violation of a primary obligation, such as the right to life, where the rules on what makes a killing arbitrary or unlawful are primarily determined by IHL.Footnote 49
The possibility of litigation both at the domestic level and before regional human rights courts has opened up avenues of redress that we have not seen in IHL. Exemplary here are the many cases relating to the obligation of States to investigate the deadly use of force. In the McCann case, the European Court of Human Rights (ECtHR) first read this obligation into the right to life under Article 2 of the European Convention on Human Rights (ECHR),Footnote 50 later stipulating the standards which should govern such an investigationFootnote 51 and clarifying its scope of application in armed conflict, including in cases involving a high incidence of fatalitiesFootnote 52 and those resulting from an air strike.Footnote 53 Such developments can be seen as part of the emergent practice of strategic human rights litigation, understood as the strategic resort to national or international courts or monitoring bodies to address systemic issues and to protect and advance rights.Footnote 54
IHL provisions related to the investigation of both detainee and battlefield deaths contain duties that are actually both more specific and more numerous than those found in IHRL, including the “official enquiry” required in cases of internee deaths,Footnote 55 the “search for and recording of information” related to missing persons who may have died as a result of hostilities or occupation,Footnote 56 and the implied duty to investigate civilian deaths where a violation of IHL is suspected.Footnote 57 However, such obligations have not been subject to litigation to anything like the extent of the comparable obligation under human rights law and have therefore benefited neither from clarification over the precise content of the obligations nor from the resulting push for compliance. What we see here is that the availability of human rights mechanisms can enable affected individuals and civil society organizations to strategically argue against damaging or deficient practices by States.Footnote 58 Independent judicial oversight then offers an opportunity to have civilians’ rights protected.
Conversely, by relying mainly on criminal prosecutions for enforcement, IHL currently presents few such options.Footnote 59 Enforcement is limited to cases of grave breaches or war crimes, excluding State obligations as significant as the duty to investigate or the duty to take precautions in attack – both of which are central to IHL’s preventive function. Furthermore, it is left to the prosecuting authority to decide which cases are taken on. Whereas IHRL facilitates individual agency, including that of victims, IHL enforcement makes individuals dependent on the discretion and capabilities of the prosecuting institution – i.e., the State. Widening the approach to IHL enforcement to include mechanisms of remedy and reparation would help bring IHL into the purview of the civil courts and encourage a practice of determining obligations which are arguably more likely to encourage compliance. These mechanisms would also make civilians who suffer in armed conflict more visible and eligible for redress. Recent examples of such practice are considered in the next section.
Beyond prosecutions: Civil litigation and civilian harm mitigation and response
In the absence of an effective right to reparations for victims of IHL violations, two broad pathways have opened up in practice to deal in part with the redress gap in IHL: “bottom-up” efforts through civil litigation, broadly construed to include human rights claims, claims in tort or delict, and judicial review; and “top-down” policies of CHMR, including ex gratia or condolence payments.
Civil litigation
Over the past twenty years, there has been a range of civil litigation brought against States in their domestic courts for military operations overseas. These litigation efforts have had mixed results; many claims have been rejected by domestic and regional courts, but there have also been significant instances of success. As bottom-up efforts for redress, these cases reflect victims and lawyers documenting civilian harm (whether lawful or unlawful) and building a legal case to secure acknowledgement and remedy from the State responsible. Many of these claims are test cases, supported by civil society organizations, to establish wider civilian protection obligations. Often these claims have been couched in terms of violations of human rights, although IHL may be invoked to determine notions of distinction or proportionality in attack, the legality of detention or the arbitrariness of killing. However, private law claims have also been made in tort or delict, to remedy harm resulting from a violation of international law, including IHL. Finally, judicial review claims under administrative law have also been brought to challenge the lawfulness of State policies or decisions, including the investigation and disclosure of IHL violations.
The United Kingdom presents a case study of all three types of claims. Following the incorporation of the ECHR into UK domestic law, a series of claims was made under the 1998 Human Rights Act relating to UK military operations in Iraq and Afghanistan. In judgments confirming the applicability of human rights law to extraterritorial operations in certain circumstances, UK forces were found to have violated the right to life and the prohibition against torture and inhuman treatment,Footnote 60 and to have subjected detainees to unlawful imprisonment in violation of the right to liberty.Footnote 61 Following the “Iraqi civilian litigation”, the UK government settled over 400 further cases of unlawful imprisonment and ill-treatment by UK forces.Footnote 62
Applications for judicial review of administrative action prompted the launch of a public inquiry into the death of a civilian detainee in Iraq, Mr Baha Mousa,Footnote 63 and the establishment of the Iraq Fatality Investigations, described by the UK government as “a form of judicial inquiry tasked with investigating the circumstances surrounding Iraqi deaths involving British forces”.Footnote 64 More recently, the disclosures ordered under further applications for judicial review led to the establishment of another, ongoing public inquiry into alleged unlawful killings by UK special forces in Afghanistan.Footnote 65
Claims involving violations of IHL or IHRL have also been brought under the law of tort, including in the case of individuals subjected to extraordinary rendition to Libya and subsequent torture,Footnote 66 and a number of cases of unlawful detention and mistreatment in Iraq and Afghanistan.Footnote 67 Notably, UK courts declined to exclude such cases under various doctrines of non-justiciability or judicial restraint pleaded by the UK government. In Alseran, the High Court of England and Wales found that the doctrine of Crown Act of State, which exempts the State from liability for torts committed abroad in the conduct of foreign relations, did not apply where conduct was contrary to IHL and thus ultra vires under domestic law. The Court noted:
[A]cknowledging that a government decision to engage in a military operation abroad entails the use of lethal force and detention on imperative grounds of security does not require the courts to accept that, for example, such lethal force may be deliberately targeted at civilians or that such detention is permissible when there are no imperative reasons of security capable of justifying it.Footnote 68
Grusic concludes that tortious claims have a “significant, largely untapped potential” which would become increasingly important if the UK government, as it periodically threatens, were to derogate from the ECHR in respect of extraterritorial military operations.Footnote 69
In total, the UK has awarded £32 million in compensation across over 6,600 cases of civilian harm from military operations in Iraq and Afghanistan.Footnote 70 Such awards are classed by the Ministry of Defence (MoD) as public liability payments, made for losses arising from the actions of UK military personnel during operations overseas where the MoD would be considered liable under English law. The majority of such cases were handled by Area Claims Offices in theatre, although awards that followed civil litigation in the UK were generally much larger.Footnote 71 The figures exhibit a marked contrast to the total of six criminal convictions of UK personnel at court martial – out of a total of fourteen prosecutions – for offences committed against the local population in Iraq and Afghanistan.Footnote 72
There may be broader avenues for civil litigation in the UK context. Abraham argues that victims of belligerent wrongs may have a private law claim under tort beyond violations of IHL, to also include breaches of a military’s rules of engagement.Footnote 73 This is not without support – for instance, a former British soldier was convicted of the gross negligent manslaughter of Aidan McAnespie, an unarmed civilian, at a checkpoint in south Armagh in 1988, after McAnespie was hit by a ricocheting bullet from a machine gun. The defendant argued that the gun was mistakenly discharged due to his hands being wet, but the court found him guilty for failing to comply with the stringent rules of engagement posted on standing orders in the machine gun position. While the case was a criminal one, the finding of a duty of care “to every person” in carrying a lethal weapon, and in using that weapon “responsibly and carefully”,Footnote 74 resonates with Abraham’s proposition that belligerent wrongs should include both intentional and negligent acts.Footnote 75
Litigating the consequences of war has its limits. Claimants need to find a legal basis to bring their claim (a violation of a primary or secondary obligation) and a forum to hear such claims. While the responsible actor will often be a State, claims against non-State armed groups present further legal and practical challenges, but are not without precedent.Footnote 76 Finally, litigation is fundamentally adversarial and claimants in cases of conflict-related harm are unlikely to be able to match the legal resources of the respondent State. This in part explains why it takes years for cases to be brought, and why cases are often rejected on the grounds of statutes of limitations for personal injury claims involving killings or torture of non-combatants.Footnote 77
Looking at how States have dealt with violations, the Netherlands provides a relatively unique example. Unlike in many other States, individuals have not had any issues related to standing when attempting to hold the Dutch State accountable for the consequences of potential violations. Key here is that Dutch civil law allows for a broad definition of a wrongful act. In Article 6:162 of the Dutch Civil Code, it is held that a wrong consists of any violation of a legal obligation – and this includes international legal obligations of the State itself. Furthermore, courts have generally assumed that even extraterritorial military operations have been within their jurisdiction when it comes to IHL violations. Likewise, courts have also been accessible and available to foreign nationals. This has led to several cases being brought against the State for military actions, including potential violations of IHL under tort law, related inter alia to colonial violence in Indonesia and military intervention in Afghanistan and Iraq.Footnote 78
In many of these cases, the Dutch courts have maintained a strict division between harm that is considered a result of the military operation “at large” and harm caused by specific violations.Footnote 79 This occurred most recently in the Chora case, which arose from collateral damage from the battle for Chora in Afghanistan in 2007. During this confrontation, the Dutch air force bombed a civilian housing complex, resulting in the deaths of at least eighteen civilians, for which the Dutch government subsequently paid $10,000 ex gratia to those affected. In 2022 the District Court of the Hague found that the State could not adequately prove that it had distinguished civilians from Taliban fighters, and that despite the payments already made, compensation should be paid to the survivors.Footnote 80 Here the Court had to deal with considerations of whether the attacks conducted in the battle of Chora were in line with the principles of IHL. In the Court’s findings, we can see how such a civil law-based approach might differ from one that emphasizes criminal accountability.
The Court first of all differentiates the case from criminal proceedings, explicitly holding that its findings have no bearing on criminal culpability. Such reasoning highlights the different standard of proof applicable in these considerations; it ultimately places a burden on the Netherlands to adequately demonstrate that the targets selected were indeed military, as the State could not sufficiently prove that there had been enemy fire from the targeted location and there was a time difference between the forces being spotted and the actual attack.Footnote 81 Ultimately, this led the Court to conclude that the Dutch State could not adequately prove that the targets were indeed military, leading to the finding of a violation and the award of compensation. As the Court judged these to the standards required in civil law, it also explicitly held that these findings did not entail that there was criminal culpability.
Such an approach contrasts with how we have seen other States deal with (potential) violations. In Germany, courts have denied individuals a right to seek compensation, arguing that IHL does not contain such a right.Footnote 82 In the United States, it has often been pointed out that the obligation to provide reparations in IHL is not self-executing and lacks implementation through domestic law.Footnote 83
Although the Dutch civil-law approach is thus not universally recognized, the example of the Netherlands indicates how civil litigation can lead to a stronger engagement with many of the core protection aims of IHL focusing on the mitigation and prevention of civilian harm, objectives which may be better served by taking a wider approach that can complement narrower criminal law enforcement. The Netherlands has been actively engaged both with civil society and within the Ministry of Defence internally to facilitate further initiatives aimed at mitigating and preventing civilian harm.Footnote 84 The possibility of civilian litigation might play an important role in these developments, triggering further engagement with many of the key principles underlying IHL and leading to a more attuned interpretation. Judicial oversight can in these cases provide an important motivation for States to further engage with and develop such concepts. While there are still avenues for further development of these practices, the Dutch case highlights that some States have (domestic) legal frameworks in place to respond to and remedy civilian harm, even in the midst of hostilities. In the UK, by contrast, recent experience reflects a more defensive practice that places the burden on civilians to prove their case through costly litigation.
Civilian harm mitigation and response and the practice of condolence payments
In contrast to civil litigation, CHMR has emerged in the past decade as a more top-down effort by some States to address civilian harm. Response efforts have their roots in ex gratia or “condolence” payments made by States to civilians as a “symbolic gesture”, providing a monetary settlement without any admission of fault or liability.Footnote 85 Such payments were aimed at wider strategic goals, such as “winning hearts and minds” among the local populace and making “collateral damage” from military operations more palatable.Footnote 86 The United States and UK paid settlements to affected parties bombed in error during World War II;Footnote 87 the United States made some condolence payments during the Vietnam War, but it was not until the wars in Afghanistan, Iraq and Yemen that a policy emerged.Footnote 88
The experience in Afghanistan for the International Security Assistance Force (ISAF) was that mitigating and responding to civilian harm became a strategic priority. As General McChrystal said, “We must avoid the trap of winning tactical victories, but suffering strategic defeats, by causing civilian casualties or excessive damage and thus alienating the people.”Footnote 89 ISAF included a range of activities as part of mitigation: including the effect of military operations on civilians as part of battle damage assessments, identifying and working with key local leaders to share information on operations and to build trust, providing medical care to injured civilians, providing apologies in line with local customs, attending funerals, and providing condolence payments or in-kind equivalents such as food and goats.Footnote 90 The United States also adopted a civilian casualty mitigation policy which standardized policy around civilian casualty monitoring, investigations and follow-up, including making amends for harm or loss caused to civilians; this could take the form of ex gratia payments, apologies or “other tangible dignifying gestures”, or “explanation of resulting changes such as new guidelines or policies”.Footnote 91 Such measures indicate some form of accountability in terms of explainability by those who caused the harming providing answers to those affected, as well as mitigating economic losses to civilians impacted by military operations, which can in turn support stability efforts and help to rebuild livelihoods.Footnote 92
Other States have also adopted informal compensation payments to civilians harmed by military operations. For instance, the internal policy of the Colombian army is to engage in such payments and accompany official bodies in their implementation, as part of maintaining internal discipline and good relations with civilian populations.Footnote 93 Making amends or condolence payments is a way of managing the image of a military or armed group, as well as a way of promoting the value of abiding by the rules of war while acknowledging mistakes and making efforts to ensure that they do not recur. As one Colombian general said, it is about maintaining the legitimacy of the armed forces and distinguishing them from those who do not respect civilians, as such unredressed harms are a “stain that will cover the entire institution … and people will blame the military as a whole rather than those who committed the errors in the course of the war”.Footnote 94
Following a series of mass civilian casualty incidents, including an air strike in Kabul which killed ten civilians, among them an aid worker and seven children, the US Department of Defense (DoD) released a Civilian Harm Mitigation and Response Action Plan in 2022 to improve the prevention, mitigation and response to civilian harm from military operations. In addition to creating a civilian protection “centre of excellence”, incorporating guidance across the full spectrum of operations and incorporating systemic measures to reduce target misidentification, the plan envisioned improvements to the investigation of, reporting on and response to civilian harm, including condolence payments.Footnote 95 This was followed in 2023 by a department-wide instruction to implement the policy, detailing leadership roles, responsibilities and impact at different levels of military operations, from intelligence to planning.Footnote 96
Overall, the United States has made efforts to improve the protection of civilians through CHMR (though there may be limits to CHMR, allowing some flexibility to commanders to adapt to their operational circumstances – for example, civilian harm assessments will not always be “appropriate or practicable” in large-scale combat operationsFootnote 97). Despite the policy changes, however, there is increasing backsliding on these commitments. In 2025 the US military carried out strikes against Houthi targets in Yemen, reportedly killing 224 civilians,Footnote 98 and it has been carrying out strikes against drug boats in the Caribbean and Pacific Ocean, labelling the victims as “terrorists” and as lawful targets in a non-international armed conflict despite drug trafficking not arising to this legal threshold; these strikes have resulted in the extrajudicial killing of dozens of civilians. This indicates that civilian harm mitigation is a fragile policy subject to political whims.
The ability of States to “pay off” victims has often grated against human rights obligations to ensure an effective remedy. Dickson suggests that compensation practice in Europe during armed conflicts and counter-insurgency operations has been a means to “buy off” victims, rather than to ensure non-repetition.Footnote 99 Condolence payments are often conditioned on victims signing a waiver to any future claims, even if it later emerges that the act causing the harm amounts to a war crime.Footnote 100 This practice of “pay to violate” during armed conflict is inherently problematic for the broader goals of reparations in attempting to discourage the recurrence of similar violations. In this way reparations can be gamed, with victims accepting a pittance of money in exchange for forgoing future claims or even for giving up the right to publicly speak about violations. For instance, victims of US air strikes in Yemen had to sign a waiver to any future claims or litigation to receive condolence payments.Footnote 101 This can be further exacerbated by the vulnerability and precarity of civilians who may not be organized, may not benefit from independent advice and/or may have sufficient economic resources to challenge the State. State practice of “condolence payments” in Afghanistan and Iraq has been criticized for unequal treatment of payments to victims, refusal to acknowledge responsibility, and a routine and impersonal process that undermines the effects of these measures.Footnote 102 Such payments can be seen as a means to “control the narrative” and avoid individual criminal responsibility.Footnote 103 Gregory goes so far as to argue that payments made in such a way have been used as a “weapon” to “legitimize harm” against civilians, enabling Western States to “keep on killing civilians, without needing to confront the consequences”.Footnote 104
States often remain reluctant to accept that civilians killed or injured in military operations are entitled to any form of redress. In some instances, payments are even characterized as “humanitarian gestures”Footnote 105 rather than as a legal obligation of the State or a right of those affected. Such payments are often made ex gratia with no legal responsibility attached, exhibiting an “economic accounting” of harm but not accountability, and allowing a bureaucratic way of dealing with seriously harmed civilians rather than meeting an obligation to remedy the consequences.Footnote 106 Accountability is further complicated in attacks involving coalition forces, where it is difficult to ascertain who was responsible, who has to pay, and how civilian victims can bring a claim. The attacks in Yemen by different armed actors (Saudi Arabia, the United States, the UK, Israel, the Houthis, and Al-Qaeda in the Arabian Peninsula) are a prime example of this.Footnote 107
An example of the difficulties of seeking condolence payments and broader accountability is apparent in the 2015 Hawija bombing, where civilians living near an Islamic State of Iraq and the Levant (ISIS) bomb factory in northern Iraq were killed when Dutch jets bombed the site. A secondary explosion further devastated the area, killing civilians up to a kilometre away. At least eighty-five civilians were killed in the bombing, dozens more were seriously injured, and over 6,000 houses, 1,200 shops, and essential civilian infrastructure were destroyed or damaged.Footnote 108 Initially, it was assumed that many of those killed were ISIS-affiliated, so a remedial response was slow.Footnote 109 The Dutch government only responded when the incident was brought to light by investigative journalists in 2019, and this delay opened up an opportunity for ISIS to regain influence. While Western coalition forces dropped over 100,000 bombs against ISIS in Syria and Iraq, remedial responses had often been lacking. The devastation caused by the bombing also meant that local civilians became more reliant on ISIS, as only supporters of the group could access medical aid.Footnote 110 When the incident belatedly came to light in 2019, the Dutch government agreed to provide €4.4 million in community rehabilitation to Hawija through international organizations, but victims continue to call for an apology and individual compensation.Footnote 111 Currently, individuals are still attempting to gain compensation through a judicial procedure.Footnote 112 In April 2025, the Dutch government apologized and established its own CHMR policy that will govern any future military operations, reflecting lessons learned from the Hawija debacle and incorporating innovations such as an online portal for harmed civilians to claim redress.Footnote 113
Proposals have been made to improve CHMR policies further. It has been suggested that CHMR can democratize the monitoring of civilian harm in military operations by including civil society organizations and enabling parliamentary committees to have some oversight over investigations and casualty recording.Footnote 114 Lewis et al. have recently highlighted the need to modernize the ex gratia payment system when approaching large-scale combat operations, including expanding the US government’s ability to pay for assistance projects and expenses for civilian harm.Footnote 115 However, the current political climate seems to be moving away from an emphasis on CHMR; under the Trump administration, the strategic importance of CHMR has been downgraded and the civilian protection centre of excellence disbanded. Even before the new government took office, the US system of condolence payments was largely dysfunctional – despite numerous requests from survivors in relation to confirmed harm and an explicit annual budget authorization from Congress, no payments were made in 2020 or 2022, and only one payment was made in the intervening year.Footnote 116 In the face of this rollback, civil society organizations have continued to advocate on behalf of civilian victims and seek redress from belligerents.Footnote 117 CHMR and condolence payments as policy choices, rather than as a legal entitlement or process for civilians affected by military operations, have been ineffective by themselves in ensuring redress for civilian harm as they continue to treat civilians as objects of concern rather than recognizing their agency.
Civilian agency and victim-centred redress
The prioritization of military efficacy over human security has eroded the normative force of IHL and constrained existing avenues for redress for civilians harmed in armed conflict. While civil litigation and CHMR frameworks hold considerable potential to strengthen compliance with IHL principles, a genuine rebalancing of power between military necessity and humanity requires recognizing civilians as rights-holders and ensuring that protection measures, along with both judicial and non-judicial responses to harm, are designed to enable them to effectively assert those rights.
The ICRC has noted that a “mindset shift” within militaries, difficult as it will be to achieve, is ultimately needed to ensure a better balance between the considerations of mission effectiveness and harm to civilians across all stages of military operations, from planning through to evaluation.Footnote 118 Fully accounting for civilian harm, however, requires an additional shift in mindset, recognizing civilians not just as the victims of war but as active agents capable of documenting violations, recording civilian casualties and understanding their rights and needs.Footnote 119
Civilian-led data collection
Stubbins Bates has argued that battle damage assessments conducted after military attacks should automatically include civilian casualty tracking, and should be used alongside civilian casualty recording (which identifies individual victims) and credible external allegations of civilian harm, along with resulting investigations, to monitor and evaluate patterns of conduct.Footnote 120 As she notes, “[t]his process is essential to ensure that subsequent kinetic engagements fully comply with the IHL principles of distinction, proportionality and precautions, thereby minimizing and avoiding civilian harm in later attacks and future deployments”.Footnote 121 While militaries often cite limited access and security constraints as primary factors inhibiting their ability to conduct civilian casualty tracking and recording, these challenges do not preclude the systematic review and consideration of data collected by local monitors and civil society organizations.Footnote 122 Such efforts not only strengthen access to justice but, when used to inform military decision-making, can also promote compliance with IHL principles by contributing to a more accurate understanding of the targeting cycle; this is especially relevant when research suggests that misidentification is responsible for 50% of civilian harm and the United States was unable to identify most cases of civilian harm by itself in its military operations in Iraq and Afghanistan over the past two decades.Footnote 123
Victim-centred responses and limiting harm to affected communities
Context-sensitive, inclusive and victim-centred responses to civilian harm may also restore a measure of humanity to the conduct of hostilities by limiting further suffering among affected communities. The absence of such approaches can compound harm, prolong trauma and undermine the reparative process.Footnote 124 Where civilians are treated merely as passive recipients of decisions taken by military, judicial or executive authorities, as has been described above, rather than as active participants, responses to harm caused by armed actors risk reinforcing the power structures that facilitated the harm in the first place. This perspective aligns with the increasing attention paid to victim voice and agency in transitional justice studies and practice.Footnote 125
The response to the 2015 air strike on Hawija offers a telling example. It has been argued that years of investigative delays, limited transparency, and the exclusion of survivors from key decision-making processes have worsened the social and psychological toll of the attack.Footnote 126 In this case, community-level reconstruction projects were used as an alternative to compensation payments. While community-level responses may offer a pathway to redress that is better attuned to the emerging needs of victims and survivors, researchers have concluded that such responses to civilian harm can only succeed when planned in close consultation with the affected communities. In the case of Hawija, PAX and the Iraqi Ashor Foundation for Relief and Development have found that “survivors and relevant local bodies do not consider the [community-level reconstruction] projects to be an effective, meaningful, or sufficient response to the harm caused by the 2015 airstrike”.Footnote 127
Integrating civilian rights (including entitlements to protection under IHL and rights under IHRL), together with the perspectives of affected communities, into the prevention and identification of harm (including its cumulative and reverberating dimensions) and the design and delivery of remedies can enhance the potential of redress as a tool for promoting IHL implementation. In particular, it can be useful for encouraging military organizations to reflect on civilian casualty incidents and to change their policies or procedures in order to ensure non-repetition of civilian harm, such as that caused by the use of close air support in urban operations.Footnote 128 However, realizing this potential is neither straightforward nor guaranteed. In seeking to uphold the humanitarian spirit of IHL, it demands that armed actors responsible for civilian harm go beyond merely avoiding conduct constituting war crimes to realizing their obligations to take constant care to spare the civilian population. Such a transformation is unlikely to occur without structural reforms and dedicated instruments, the contours of which are explored in the following section.
Due diligence and precaution as a harm-based approach in redressing armed conflict?
Readers of the Review will be well versed in the delicate balance of humanity and military necessity that sits at the crux of IHL interpretation and practice. In the first part of this article we highlighted the accountability gap for redressing armed conflict-related harm, in part caused by the right to reparations for breaches being left principally in the hands of belligerents rather than victims. More fundamentally, much of the violence against civilians in armed conflict is justified by belligerents as lawful collateral damage, on the grounds that it did not result from making civilians the object of attack and it was not expected to be excessive in relation to the military advantage anticipated (i.e., it did not fall foul of obligations of distinction and proportionality). In the second part we examined how this gap is being filled with bottom-up civil litigation and top-down CHMR. In the previous section we underscored the place of civilians as agents, which is the context in which civil litigation emerges or which CHMR tries to engage with, in order to avoid bad publicity or losing the hearts and minds of the population.
Tying these issues together, we believe that a new harm-based approach can be forged in amalgamating such emerging practice within a broader understanding of the precautionary duty of “constant care” and the obligation to “ensure respect” for IHL. Commanders and soldiers need to have some reasonable discretion in using force, so long as they do so in good faith in applying the law, based on the facts reasonably available at the time rather than on a retrospective analysis.Footnote 129 States have to live with the strategic and moral consequences of killing civilians in military operations. Pictet suggested that humanity involves “active goodwill”, a “compromise between justice and injustice”, and “mutual aid” (reciprocity), and that humanitarianism lies between justice and charity in “repairing the aberrations of fate”.Footnote 130 This touches on Aristotle’s bipolar conception of justice as meionexia (to accept or demand less than one’s due if this is necessary for some greater good),Footnote 131 which Grotius described thusly: “Justice consists in taking a middle course. It is wrong to inflict injury, but it is also wrong to endure injury.”Footnote 132 According to May, this form of justice is pursued in the hope that in accepting less there is greater likelihood of “gain[ing] a more secure and lasting peace”.Footnote 133 While IHL may lawfully permit a certain amount of collateral damage to be suffered by civilians, it remains wrong to leave that damage unredressed. Looking beyond what is lawful, we suggest that the “active goodwill” of belligerents causing civilian harm requires redressing the harm that they cause as part of constant care in protecting civilians from the ravages of war.
Other commentators have called for a range of mechanisms and pathways to deal with incidental civilian harm, from a victim assistance modelFootnote 134 to a war tort regime,Footnote 135 an insurance scheme for war victimsFootnote 136 and even a civilian harm “war hazards” compensation scheme.Footnote 137 These calls are not new. Emer de Vattel distinguished between intentional acts “done deliberately and by way of precaution” to private persons and property in order “to prevent their being of use to the enemy”, and those damages caused by the “inevitable necessity” of war that are “merely accidents”. With the first, intentional acts, compensation should be made as a legal obligation, but with the second, war mistakes/accidents, the State should show “equitable regard for the sufferers, if the situation of [its] affairs will admit of it”, but no legal action lies against the State. For those civilians who are killed, it is
perfectly equitable, even strictly just, to relieve, as far as possible, those unhappy sufferers who have been ruined by the ravages of war, as likewise to take care of a family whose head and support has lost his life in the service of the state.Footnote 138
Edwin Borchard remarked in 1942 that an insurance scheme for civilians harmed in war was needed, due to the legal right to reparations being “subject to precarious political conditions which often prevent its vindication”.Footnote 139 Indeed, States remain inclined to politically settle conflicts without making reparations, or to redress civilian harm if it limits their liability or bad publicity.Footnote 140
We are not suggesting a sui generis system or scheme, but rather a change of tack. Considering common principles in civil litigation, we could revisit the principle of precautions in attack, which requires parties to an armed conflict to take “constant care” to avoid, or at least minimize, as far as is “feasible”, incidental civilian loss of life or injury, or damage to civilian objects. Alongside the presumption of civilian protection and the civil law notion that those who carry lethal weapons have to do so “responsibly and carefully” as an obligation of means, where lawful or non-intentional civilian harm results, it should require those who cause such harm to recompense affected civilians. Framing this as negligence and giving rise to new legal obligations is likely to be a step too far for many States.
Instead, we suggest that remedying civilian harm is about operationalizing the principle of precaution to continue the “constant care” of the civilian population.Footnote 141 Constant care does not end after the attack; battle damage assessments and civilian harm monitoring and response mechanisms should be put in place to ensure continuity of care. Causing civilian harm, whether through misidentification or collateral damage, requires redress where feasible. The failure to redress such harm currently does not amount to a specific legal violation, but it is a failure to live up to the expectations of the principle of precaution, which must be applied in “common sense and good faith”.Footnote 142 In other words, repeatedly causing civilian harm and then shrugging our shoulders at the “cost of war” is not good enough – the harm persists, and failure to remedy it is wrong.
Dinstein refers to this as “due diligence”, given that uncertainty in military operations means that reasonable commanders must operate in contested environments with incomplete or inaccurate intelligence, even with advances in sensors and algorithms.Footnote 143 Due diligence is appropriate to precautionary duties, as they are about belligerents making specific efforts in “risk mitigation” to protect civilians in military operations. Having an obligation to redress an omission without it necessarily amounting to wrongful behaviour or a violation is common in several other legal areas, such as nuisance caused by dangerous forces released onto neighbouring property under tort law,Footnote 144 environmental harm,Footnote 145 and business and human rights.Footnote 146
In a recent advisory opinion on climate change, the ICJ has provided guidance to States on the obligation of due diligence and the precautionary approach, which “guides States in the determination of the required standard of conduct in fulfilling their customary duty to prevent significant harm”.Footnote 147 These are somewhat analogous to IHL and collateral damage, where there is serious risk to protected persons in military operations and belligerents are under a duty to mitigate. The International Tribunal for the Law of the Sea has also recently commented on due diligence, stating:
It is difficult to describe due diligence in general terms, as the standard of due diligence varies depending on the particular circumstances to which an obligation of due diligence applies. There are several factors to be considered in this regard. They include scientific and technological information, relevant international rules and standards, the risk of harm and the urgency involved. The standard of due diligence may change over time, given that those factors constantly evolve. In general, as the Seabed Disputes Chamber stated, “[t]he standard of due diligence has to be more severe for the riskier activities”. The notion of risk in this regard should be appreciated in terms of both the probability or foreseeability of the occurrence of harm and its severity or magnitude.Footnote 148
With business and human rights, the notion of due diligence is a voluntary commitment by companies to respect, ensure and remedy. While businesses are not parties to human rights conventions, they can be implicated in human rights violations. Here due diligence is an opt-in commitment to human rights in their business activities and a process to “identify, prevent, mitigate and account” for human rights impacts and provide a remedy for any adverse impact that they cause or to which they contribute.Footnote 149 In this context, due diligence has a dual meaning that speaks to both stakeholders – to human rights lawyers it is a “standard of conduct”, and to businesses it is commonly understood as a “process to manage business risks”.Footnote 150
Due diligence is evoked in diverse areas of law to grapple with uncertainty that can cause significant risk to others. In other words, the law is trying to guide best practices in order to avoid adverse harm to people and communities, whether from the release of dangerous forces to neighbouring property, global emissions or corporate complicity in human rights violations. Due diligence “gives states flexibility to act without being unduly constrained by international law, but at the same time actually promotes compliance with international law, and may assist in its development over time”.Footnote 151 The principle of due diligence has a general value for IHL in terms of reasserting its core purpose beyond just the letter of the law. In discussing the broader concept of due diligence in international law in relation to climate change, the Inter-American Court of Human Rights pointed to Article 1 common to the four Geneva Conventions as an example of the need not only to respect but also to “ensure respect” for the Conventions.Footnote 152 Combining the principle of precaution with such an obligation to ensure respect could arguably lead to an identifiable due diligence standard in IHL.
Over the past two years, there have been repeated warnings that war is increasingly being conducted in bad faith and not in line with the spirit of IHL. It is often remarked that for civilians, it does not matter whether they were hit by a lawful or unlawful attack – the pain of losing a loved one, being maimed or seeing their house destroyed is the same either way. As Gillard highlighted in 2003 in the Review, such legalistic distinctions create “injustices in practice” between war victims who are “equally in need”.Footnote 153 Ensuring respect for the Geneva Conventions, which enshrine the protection of civilians and other non-combatants, may mean that where non-combatants are harmed in military operations, belligerents as part of their due diligence obligation would provide measures to redress that harm. This reading of precaution to include “constant care” even after a military operation has ended would fall under the practical standard of “as far as is feasible”. A due diligence obligation to respond to civilian harm could be met through responsive interim reparative measures,Footnote 154 such as those for victims of torture in SyriaFootnote 155 and sexual violence in Ukraine,Footnote 156 and those affected by military operations in Iraq;Footnote 157 these measures may ease some of the immediate consequences of the harm, for example by providing access to specialist rehabilitation, and may reduce the cost of reparations later.
There is emerging State practice that goes beyond respecting IHL to also include “ensuring” respect for specific rules in the Geneva Conventions through redressing civilian harm. During the war in Afghanistan, the North Atlantic Treaty Organization (NATO) issued guidance on compensation for civilian harm for coalition partners.Footnote 158 The initial US policy in Afghanistan for ex gratia payments recommended that army units should “take care to understand cultural norms and avoid the negative effects of disregarding them”,Footnote 159 and that efforts should include other measures beyond compensation such as apologies and explaining policy changes in light of the civilian harm incident. As Fowler finds, while these schemes have “insufficient consistency” and “disparate outcomes on the ground”, they all have “roughly similar” roots in “gaining and maintaining the local population’s support for combat forces, and thereby helping to secure the success of the mission”.Footnote 160
Australia has recently created a compensation scheme following the Brereton Report’s recommendation to compensate affected civilians.Footnote 161 The final report recommends compensation on the basis that it is necessary “to restore Australia’s standing, both with the villagers concerned, and at the national level”, stating that it is also the “morally right thing to do” and should not be contingent on establishing criminal liability, given the years that have passed and the required higher evidential threshold.Footnote 162 However, the scheme has been criticized by Ben Saul, UN Special Rapporteur for Counter-Terrorism and Human Rights, as not being human rights compliant, being limited to those violations identified in the Brereton Report and amounting to “military charity”. Camins takes a more pragmatic approach to the Australian scheme, finding that it falls between recognizing a right to reparations for IHL violations and a more administrative approach than the discretionary act of grace/Tactical Payment Scheme used by Australia in the past.Footnote 163
There may be good practices to glean from such a scheme, such as a lower evidential threshold of “reasonably likely”Footnote 164 than a criminal trial, a “two-stage process” of both investigation and compensation pathways, flexibility on remedial measures, and relying on documented incidents to more easily administer the scheme. Despite this, it is not a replacement for a reparations scheme needed for gross violations of human rights or serious violations of IHL, falling short of such international standards for war victims.Footnote 165 Other breaches could be considered in a scheme, such as against persons hors de combat depending on the circumstances, but within the wider umbrella of the obligation to protect such persons under IHL. Nevertheless, having a civilian harm scheme is just a stop-gap during hostilities; the war may continue for years or decades, with full reparations schemes often taking even longer to establish,Footnote 166 and by then it may be too late to mitigate and remedy the profound suffering of civilians. Human rights law and civilian agency should not be limited to the cessation of hostilities, and there may be value in incorporating human rights principles into civilian harm compensation schemes in order to improve their effectiveness and civilian satisfaction.Footnote 167
Such efforts are going beyond just single States and are encouraging common practices among allies. The Dutch Ministry of Defence, in light of the Hawija bombing, has expressed an interest in developing a “Letter of Intent” to improve CHMR among like-minded States, including “coalition standards for compensation mechanisms”. While such developments are encouraging in terms of moving beyond internal compliance to an external, bilateral culture of ensuring respect, there would be a diversity of views on a common approach to compensation for civilian harm, such as whether it would be through ad hoc payments on a case-by-case basis or a more administrative and standardized scheme.Footnote 168
There may be problems with States creating their own civilian harm schemes, beyond just ad hoc discretionary payments. Such schemes may be used as a diversionary process to avoid investigations or bad publicity, or even to downplay violations.Footnote 169 Money paid to certain people or communities may end up in the hands of the enemy, some people may make fraudulent claims, or the scheme may sour intra-communal relations as some civilians benefit over others. The Brereton Report, in recommending compensation to civilian victims, suggested that while there is a risk of compensation being misused, “on balance that risk is justified by the overall benefits of taking this step to right the ledger”.Footnote 170 Indeed, as a strategic mechanism a civilian harm compensation scheme can enable states to “account” for the harm they cause, without being legally liable, and can help civilians to avoid the costly and risky civil litigation route. Ultimately such schemes are a means to promote State compliance with the spirit and law of IHL.
In debates on reparations for war victims, Ruben Carranza often raises the fact that a lot of attention and funding is poured into the ICC when atrocities occur. Yet, as he notes, calls for an “international court of reparations” have been muted. States are more easily mobilized to be punitive and to pin responsibility on individual leaders and commanders than to pick up the cost of war. Indeed, the negotiations on the Rome Statute of the ICC only found support for reparations if they were ordered against a convicted person, and not the State, even if the accused was acting in their official capacity when international crimes occurred.Footnote 171 This contrasts with one of the founders of the ICRC, Gustave Moynier, who, writing in 1872, stated that an international tribunal should be established for violations of the original Geneva Convention, with compensation available for victims. Moynier hit at a broader point justifying why States should pay the cost of violations of IHL as a way of ensuring respect – “it is no bad thing that governments have a direct and pecuniary interest in the Convention being faithfully observed by their nationals”.Footnote 172 There could be lessons from the ICC experience about encouraging States to engage in redressing civilian harm through complementarity, rather than requiring external compliance mechanisms. This would fit with the “internal” aspect of compliance to “ensure respect” for the Geneva Conventions. Perhaps articulating good practice as a standard against which governments can be held to account is the best way to improve military practice.
We are seeing an increasing turn towards international agreements and declarations to recognize the need for States to provide assistance in alleviating civilian harm from the use of certain weapons.Footnote 173 Such agreements, often regulating weapon use, recognize that those harmed by such weapons are victims even when the weapons are lawfully used, avoiding any quibbling as to whether or not they are victims of a violation. The current rolling text of the proposed Protocol VI to the Convention on Certain Conventional Weapons (CCW), on lethal autonomous weapons, includes a provision for investigation and redress of IHL violations.Footnote 174:
There are lessons to be learned from the reparations experience in societies transitioning from conflict, in areas such as the sustainability and viability of socio-economic support to harmed civilians, the need to be responsive to victims’ needs (e.g. not funding income-generating projects for anti-personnel mine victims that require going beyond the limits of their mobility),Footnote 175 and the risks in providing redress to civilians seen as hostile (such as payments ending up in the pockets of the enemy).Footnote 176 In Iraq, a national scheme was introduced in 2009 to compensate the victims of “military operations, military mistakes and terrorist actions”.Footnote 177 By 2016, some 185,000 claims had been processed. Here we see a government both recognizing the extent of harm suffered by its civilian population and assuming responsibility for repairing that harm. Claimants are required to demonstrate the extent of harm and the nexus to the conflict, but do not have to establish the liability of any specific armed actor. Neither does the award of compensation depend on the outcome of any criminal prosecution, even though the harm resulted in many cases from conduct that was clearly criminal under international law.Footnote 178
For victims, distinctions between what amounts to a war crime, to an “ordinary” IHL violation and to “incidental” harm may seem abstract and academic when their child or loved one is dead. Taking a harm-based approach to remedy rather than a violation-based one can be more constructive as it can improve transparency and accountability for targeting and military operations, which are often belligerent-controlled decision-making processes. This better reflects the lived experience of harmed civilians, who had no choice or consent in the violence caused to them. Such a civilian-oriented approach resonates not only with the strategic goals of CHMR in winning hearts and minds but also with the principle of humanity underpinning IHL. A harm-based approach involves understanding civilians’ perspective and agency in seeking redress for their harm, rather than the redress being imposed on them or requiring years of risky litigation. More broadly for IHL, this approach recognizes that IHL “cannot do it all” and that other frameworks,Footnote 179 such as human rights law and tort law, can provide procedural infrastructure to complement efforts at mitigating civilian harm.
Conclusion
Civilians continue to bear the brunt of violence in armed conflict, yet they are often left in a legal no man’s land when it comes to redress. This article has argued that a proper balance in IHL between military necessity and humanity could be regained, and civilian protection enhanced, by placing greater attention on the civil redress aspects of accountability. Part of better operationalizing the principle of precaution and the duty of “constant care” is recognizing the continuing suffering that civilians experience after an attack or military operation – suffering that requires those who cause such harm to ameliorate it. In comparison to the ad hoc and post facto nature of most war crimes trials of individual suspects – long considered the principal mechanism for IHL enforcement – civil remedies and reparative measures offer greater scope for addressing State accountability for civilian harm, thereby helping to fulfil IHL’s role in protecting civilians and preventing violations. Crucially, enhancing civilian agency in justice processes serves as a practical means of asserting humanitarian considerations in IHL implementation.
The civil accountability mechanisms, both actual and potential, described here do not fit under one rubric, but rather cover a range of ways of lending binding force to IHL rules. In several European States, including the Netherlands and the UK, civil litigation has been used to hold States accountable for IHL violations, whether through human rights claims or actions in tort or delict. Judicial review of executive action has led to enhanced transparency and the establishment of official public inquiries into patterns of wrongdoing in military operations. Public concern at the treatment of civilians has in turn led to the establishment of administrative reparation schemes, including in Afghanistan and Iraq, to recognize and remedy civilian harm. In some of these instances, the award of satisfaction and compensation has been accompanied by changes in military practice to ensure that violations are not repeated.
At a time when international means of enforcement are being seen to fall short, reparative measures have in most instances been firmly grounded in national justice processes, whether judicial or administrative in nature. Such mechanisms should be seen as complementary to criminal justice mechanisms, but covering a wider scope of IHL obligations, including in circumstances where formal liability is difficult to prove. They have a particular potential for strengthening implementation of the IHL principle of precaution, for addressing violations that are systemic or systematic in nature, and for encouraging a more comprehensive approach to responding to civilian harm. CHMR is one way of doing this, but it comes with concerns about civilian agency and the risk that compensation will be used as a means to silence victims and to avoid improving militaries’ practice of “constant care” towards the civilian population.
If, in the words of the ICRC, narrow exceptions to IHL prohibitions are becoming “wide legal loopholes for circumventing protections”,Footnote 180 then effective counter-balancing is required to reassert the force of humanity. Fundamentally, IHL is about minimizing the effects of war and restraining belligerents. The principle of precaution and the duty to ensure respect for IHL can be a means to consolidate emerging practice in order to redress civilian harm and recognize such redress as a strategic, moral and legal imperative. With such a move currently unlikely to come from the top down, we need to lend greater support to bottom-up efforts, driven by civilian agency, in order to secure IHL protections by holding parties to conflict accountable and break the “race to the bottom”. This includes documentation efforts, open-source verification and political accountability of armed actors to explain and redress the harm they cause. With such power to use force in war, States and other armed actors should carry the responsibility to repair the harm they cause, whether lawful or unlawful.
Open access
