The Dutch Chora Judgment: Ex-Gratia Payments and Compensation

by | Apr 10, 2023


Recently, a Dutch district court in The Hague delivered its judgment concerning claims arising from a 2007 battle in Chora, Afghanistan. Whereas an earlier post by Marten Zwanenburg reviewed the judgment with a focus on the alleged violations of International Humanitarian Law (IHL), the judgment also provides insight into the court’s perspective on claims for redress following ex-gratia payments by armed forces. The case provides one of the first situations in which a court was asked to consider such claims after an initial ex-gratia payment had already been made in the aftermath of fighting.

This post will first provide some background on the concept of ex-gratia payments and reparations for violations of IHL. For that purpose, it will establish a definition and brief overview of ex-gratia payments in armed conflict. This will be supplemented by a consideration of reparations, emphasizing the Dutch context. Secondly, the post will discuss the judgment against that background and offer some observations on the approach taken by the court.

This post’s central argument is that the court could have done more to define the relationship between the initial ex-gratia payment and the subsequent compensation claim. As published, the court’s judgment only considers this relationship in a summary fashion, leaving many legal questions regarding this relationship open.


Ex-gratia payments are compensation by States for damage that is not necessarily the result of an unlawful act. The rationale for such payments is that while some actions might not violate the law, States still have an interest in compensating them to maintain good relations. There is a multitude of historical examples in this context. A prime example is the practice of the United States during the Second World War, which allowed for compensation through the Armed Forces Damage Settlement Act. In a more contemporary example, the Interim Regulations for Condolence or Sympathy Payments to Friendly Civilians for Loss that is Incident to Military Operations also list maintaining good relations as a policy motivation.

This practice has become widespread during recent conflicts. Inspired by counterinsurgency (COIN) doctrine, States have committed to maintaining good relations with local populations. In Iraq and Afghanistan, winning the population’s “hearts and minds” became a key objective for commanders. Reference here can be made to the Multi-National Force-Iraq Commander’s COIN Guidance, highlighting a need to secure and serve the population and promote reconciliation. Similarly, in Afghanistan, a need to engage with the population was recognized and States conducted extensive ex-gratia compensation programs.

These payments can be contrasted with reparations, which follow from a legal obligation to compensate for damage. Such payments follow a wrongful act for which a State is responsible to repair damage resulting from its actions. Within armed conflict, this would generally follow a violation of IHL but could also be the consequence of violations of other applicable fields of law, such as International Human Rights Law.

Whereas the general existence of an individual right to reparations under IHL is contentious, Dutch courts have adopted a broad perspective toward which acts can be compensated under Dutch law. Courts have used the overall structure of Dutch civil law to find that they may award compensation for violations under IHL, depending upon whether the court can factually establish if the claimant is  a victim of a violation of IHL.  The domestic interpretation of Dutch civil law therefore allows for broad claims made under the category of a (civil) wrongful act, which includes violations of international law. This contrasts with the practice of other States, including the United States and Germany, which have argued against awards of individual compensation on the grounds that IHL is mainly concerned with obligations between States.

As the Netherlands allows for individual claims based upon violations of IHL, individuals who had received a prior ex-gratia payment may also claim reparations. In the Chora case, individuals held the State responsible under Dutch civil law after receiving an initial ex-gratia payment. The question is how the court defined the relationship between these two kinds of compensation payments.

The Judgment

In its Chora judgment, the Dutch trial court addressed some specifics surrounding the ex-gratia practice. Paragraph 3.25 refers to a “partially completed, non-signed form proposing compensation for damages and solidarity payments.” (translation by the author). This form established the damage from the battle, consisting of 18 dead civilians and 30 dead animals. The subsequent paragraph, 3.26, refers to the “damage compensation Chora 2007,” where it is mentioned that the State paid out $10,000 in compensation to the individuals harmed. This was done on an ex-gratia basis, as no reference was made to a wrongful act. It is worth mentioning here that the court specifically highlighted that the initial form was only partially completed. The court did not note any such qualifiers when considering the damage report.

Coming to the substantive treatment of the claims, the court found that under Dutch civil law the State provided insufficient evidence at trial that a reasonable commander could have regarded the site of attack as a lawful military target. It concluded that the strike violated the principle of distinction, a wrongful act for which the State is liable for compensation. The court subsequently considered the compensation issue in paragraph 5.35. Here the court stated that a direct link could be established between the victims and the bombardment, satisfying the criteria required under Dutch civil law.

In making this determination, the court briefly referred to its previous discussion of documents concerning ex-gratia payments. It stated that those documents can be accepted as evidence to determine whether a payment of $10,000 was made. This is further supported by a video segment in which the claimant stated that around $2,000 were paid per deceased. The court noted that neither fact was contested and referred the case to the compensation proceedings (schadestaatprocedure). In this way, the court did not see the initial ex-gratia payment as a barrier to the reparation claim. Instead, it found that the paid sum did not preclude further claims by the victims based on their damages. The court thus provided a first insight into how it might consider these claims.

Observations on the Judgment

The court’s reasoning in the Chora judgment necessitated consideration of the relationship between ex-gratia payments and later compensation. Yet, it failed to clearly resolve the matter, making it likely that further issues will arise in future cases. Furthermore, it is unclear whether the court saw a fundamental issue with the Netherlands’ practice regarding ex-gratia payments or, alternatively, meant to limit its ruling to the specifics of this case.

As a starting point, under Dutch civil law, parties may agree to a settlement which provides a definite solution and therefore precludes further claims. This represents a negotiated agreement (vaststellingsovereenkomst met finale kwijting). As a general rule, this would mean that the claimant does not have a right to further claims. The report cited by the court mentions that in the current case the Netherlands drafted the ex-gratia payment as such an agreement. Paragraph 3 states that any compensation precludes further claims. However, the court did not cite this specific reference within its judgement, only referencing the amount compensated.

In this way, the court failed to clarify why it did not allow this settlement provision to stand. Dutch civil law offers some possible explanations. The court could have concluded that the fact that a violation had taken place represents a new fact, making the initial agreement invalid. This would mean that the court concluded that the initial payments no longer form a barrier to individuals claiming further redress.

Another option would be that the court rejected a reliance upon this provision due to the specifics of this case. Within the judgment, in para. 3.25, the court clarified that the compensation form was only partially completed and unsigned. The court could have taken this as an indication of procedural faults, concluding that the agreement lacked both parties’ consent. In such a way, it could have been argued that the current agreement’s specifics were lacking, instead of the general practice. However, the court did not emphasize which of these two options motivated it to reject the initial agreement.

Lastly, it is worth highlighting that the court did not attempt to validate its rejection of the ex-gratia waiver through international law. The nature of the judgment, being based upon Dutch civil law, suggests the court did not consider this issue in the frame of the debate about reparations under IHL. Further, it did not frame its analysis in terms of an individual right of remedy or a violation of one of the core principles of IHL.

Given the court’s lack of reasoning underlying its rejection of the settlement provision, it will be interesting to see whether and to what extent the follow-on proceedings will take the initial payments on board. A possibility is to consider the previous payments to be part of the compensation owed. Another is to reject any reliance upon the ex-gratia payments as they are made on a voluntary, and not on a legal, basis.

Concluding Thoughts

The main aim of this post has been to argue that the judgment would have benefitted from a more thorough engagement with the relationship between ex-gratia payments and further compensation claims. As ex-gratia payments have become widespread, the judgment could shape a robust Dutch precedent. As practice is still relatively rare, the court’s judgment could have been influential in defining this relationship going forward. Instead, we are left with a judgment which, although it does provide a first indication of practice, lacks sufficient reasoning and clarity. This represents a missed opportunity.


Captain Steven van de Put is a Legal Advisor in the Royal Netherlands Air Force and a lecturer at the Netherlands Defence Academy, where he is responsible for teaching the military law course for the air force cadets.


Photo credit: Unsplash