Beyond Compliance Symposium – Redressing Civilian Harm and Going Beyond IHL Compliance

Editors’ note: This post forms part of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, featured across Articles of War and Armed Groups and International Law. The introductory post can be found here. The symposium invites reflection on the conceptualization of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies that can effectively address harm and need.

This year marks the 75th anniversary of the 1949 Geneva Conventions and 160 years since States agreed to the first Convention in the aftermath of the battle of Solferino. Despite reaching these milestones, civilian deaths are at their highest level in thirty years. Daily news from Gaza reinforces the horrors civilians are suffering from military operations that are ostensibly compliant with international humanitarian law (IHL).

The impetus to create the Geneva Conventions was revulsion at the human cost of war and an effort to mitigate its worst excesses, with each iteration aiming to extend further protection to those outside of the fight. Yet in contemporary conflicts, following the Geneva Conventions and Additional Protocols is not enough to protect civilians. As Ben Clarke argues “Law is but one tool used to regulate human behaviour. Without compliance, even the best-drafted laws are of little value.” The International Committee of the Red Cross (ICRC) Chief Legal Officer, Cordula Droege, recently called upon belligerents to “not just [uphold] the rules, but the spirit of the law.” 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.”

In light of the continued high levels of civilian harm, there is an increasing turn to look beyond compliance with IHL to better protect civilians from the violence of war and to redress their harm. This was the focus of a UN Security Council debate earlier this year. On this occasion, Joyce Msuya, Assistant Secretary-General for Humanitarian Affairs and Deputy Emergency Relief Coordinator, declared that, in the face of increasing civilian deaths in armed conflict, “it is time to go above and beyond compliance: to strive for the full protection of civilians against the full range of harms they are suffering on our watch.” Indeed, the representatives from the African Union, Bulgaria, and Lithuania remarked on the need for remedial and redress pathways for harmed civilians. Similarly, the 2022 Declaration on the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas (EWIPA Declaration) also calls for assistance to those injured and killed and the communities affected.

However, there has still not been a call seeking to prohibit the use of high-explosive weapons in populated areas, revisit the formulation of proportionality, or find consensus on acceptable collateral damage estimates in attacks that would substantially affect the IHL status quo. Perhaps the recent announcement for a global initiative on galvanising political commitment to IHL in 2026 may buck this trend. Yet we are seeing a counter-trend with technology progressing beyond our ability to hold it to legal or political accountability, such as AI decision-support systems, speeding up and increasing the degree of civilian harm without meeting the corresponding demand for prompt redress. This has implications for exponentially widening the gap in redress implementation for harmed civilians.

There have been growing efforts by States, such as the United States and the Netherlands, to incorporate civilian harm mitigation and response efforts into military operations. These reflect attempts to go beyond legal obligations under the Geneva Conventions in seeing civilian protection as part of long-term strategic success by “enhancing the effectiveness and legitimacy of military operations, and demonstrating moral leadership.”

The wars in Iraq and Afghanistan underscored the cost of civilian harm from coalition military operations, not only to families and communities, but also in fuelling insurgent violence against Western soldiers. But mitigation efforts have been criticised as a means to improve military efficiency without restraining violence against civilians. Indeed, there has been historic practice of militaries instrumentalising compensation to harmed civilian populations as a means to avoid legal scrutiny and manage public perceptions. In a recent piece for the International Review of the Red Cross, I argued that informal practices such as ex-gratia condolence payments must comply with international human rights law (IHRL) to mitigate civilian harms that are exacerbated with the passage of time. This post considers how reparations for civilian harm can move beyond compliance with IHL and better achieve strategic goals of mission success.

A Right to Reparations for Civilian Harm

Civilian harm typifies modern armed conflicts. It is well established that victims of gross violations of IHRL and serious IHL violations have a right to a remedy, in particular the right to reparations. Reparations have been used for thousands of years across most countries as a means to secure the peace and to mitigate the losses suffered as a consequence of armed conflict. However, international law does not recognise a right to reparations for civilian harm, including incidental loss (collateral damage) through lawful military operations.

In the 1860s, Emer de Vattel argued that while the State is responsible for compensating civilians for appropriation of their property, accidental losses caused in armed conflict are a matter of equity and dependent on what the public purse allows. In 1942, Edwin Borchard called for an insurance scheme for civilians, given that the legal right to reparations is “subject to precarious political conditions which often prevent its vindication.” More recently, Larry May and others proposed a war insurance scheme to indemnify civilians affected by armed conflict, without any recognition of fault or legal liability for those responsible for causing such harm. This would move away from responsible actors’ reluctance to admit liability, while also allowing a broader group of victims to benefit. Yet such extra-legal measures do little to promote compliance with IHL, and have been criticised as “blood money” or creating a pay-to-violate culture amongst belligerents.

Such ideals are removed from realities during and post-conflict, when violence is legitimised, whether politically or legally. Reparations as a legal construct are not realised from the good faith or the charity of States or non-State actors, but from hard struggles by victims that often take years or decades, if ever, to secure. Part of the difficulty is for war victims to achieve documentation and recognition of their suffering. As a result, reparations often create a hierarchy of victims with State forces and those loyal to them being placed at the top followed by victims of intentional violations (disappearances, torture, sexual violence) as they are seen as more deserving of redress. Yet for those who suffered the death of a loved one, injury, or property loss through collateral damage, their loss is seen as lawful and does not give rise to a legal right to remedy.

Emily Camins proposes a “victim assistance model,” drawing on provisions from weapons treaties like the Convention on Cluster Munitions, which would obligate States to address the basic needs of those affected by war. This is comparable to the ICRC’s call to address war-affected civilians’ needs by ensuring access to medical care, rehabilitation, and psychological support, alongside their social and economic inclusion.

The difficulty with such a model is the willingness of States (not less non-State armed groups) to engage formally with such obligations. This can be seen in the voluntary contributions to trust funds for victims of international crimes, such as the International Criminal Court (ICC) Trust Fund for Victims, which annually receives €2-5 million, despite the Court’s budget being over €130 million with millions of victims within the Court’s jurisdiction. Recent reporting of the experience of reparations for victims before the ICC indicates that this was inadequate and left a bitter legacy. It saw militias targeting many of the victims again, such as by pillaging the cows they had been awarded as reparation.

International criminal law has now firmly established that where a person is convicted of international crimes, victims may be able to claim reparations against them. Yet, only victims of the most serious and often intentional attacks against civilians are eligible for reparations. For instance in the Dominic Ongwen case, the ICC recognised nearly 50,000 victims for the purposes of a symbolic €750 in compensation. Meanwhile, the reparations order excluded the nearly 2 million victims who had suffered from the activities of the Lord’s Resistance Army and the Ugandan Army’s counterinsurgency campaign for nearly four decades. The concern here is that in trying to redress such harm caused by armed conflict within an international normative framework we replicate arbitrary hierarchies where remedying such suffering is a matter of luck of the legal draw, rather than responding to harm.

We must avoid diluting the rights framework around victims and reparations that leaves affected civilians dependent on charity or discretionary assistance. While I agree that expanding the assistance obligation in wartime is necessary, as a framework for redressing harm it gets stuck on the issue of how to maximise resources to those most in need. If everyone is a victim and eligible for reparations, no one is, as the ability of the State or armed actor to repair what they have destroyed would be unfeasible.

I am not intending to be pessimistic here, but realistic. The mentality of war as the extension of politics can see States and armed groups invest more in weapons and fighting capacity to see a return, than investing the same money in compensating civilians they have already harmed. We see this in how interest from seized assets in Europe is underwriting weapon purchases and other debts, despite all the talk about it funding reparations to Ukrainian victims. At the end of hostilities, the calculation is different as peace, stability, development, and non-recurrence are more highly valued.

I received helpful feedback from colleagues in Ukraine on a previous post on reparations for civilian harm, who highlighted the EU Directive on Victims on Crime and more general obligations in international law. Effectively, their point was what is left of victims’ rights if we adopt a harm-based approach? The crux of the issue is that most of the international norms on the right to reparations, such as the 2005 “UN Basic Principles on the Right to a Remedy and Reparations,” are aimed at gross violations of IHRL and serious violations of IHL. It is debatable whether an individual right to reparations for IHL violations exists, given that Article 91 of Additional Protocol I only stipulates the potential liability of a party to a conflict to pay compensation for violations. Relying solely on international law to establish a legal basis for victims to claim reparations depends on the victim evidencing a violation of IHRL or IHL, which is incredibly difficult in times of armed conflict, when so much violence can be legally justified. A harm-based approach does not abrogate victims’ right to reparations but aims to redress harms caused to the wider civilian population. Perhaps this requires moving beyond references to victims of violations, to refer instead to civilian victims to better encompass those affected by military operations.

It could also be argued that if incidental loss (collateral damage) does not amount to a serious violation of IHL, it would not fall within the scope of the 2005 “UN Basic Principles.” Does this mean that States and other responsible actors do not have to provide such comprehensive measures ranging from compensation, investigations, apologies, and non-recurrence for what is considered lawful harm? I would argue that reparations are not simply about legal compliance, but part of the wider moral, strategic and political aims to alleviate suffering, manage the image of belligerents and even allow the continuation of military operations. This is reflected in the U.S. and Dutch efforts concerning civilian harm mitigation and response, which include compensation.

A Harm-based Approach Beyond Compliance with Reparation Norms

A harm-based approach to reparation programmes goes beyond the minimum legal compliance outlined in the 2005 “UN Basic Principles.” This would avoid the use of the term “serious violation of IHL” (which has a dubious purchase), while at the same time recognising that victims of armed conflict have rights. The anchor point for eligibility is the armed conflict itself, in that victims are eligible for reparations if they have suffered harm “related” to the armed conflict. This is not about legal responsibility but factual causation of harm. For instance, imagine two 11-year-old boys are walking along a road, one is hit and killed by an army jeep trying to avoid a suspected dug-in improvised explosive device, only to detonate a device nearby that kills the second boy. In neither incident would their families be eligible for reparations according to a strict reading of serious violations of IHL or gross violations of IHRL.

The United Kingdom, Germany, Japan, and Iraq have all adopted reparation programmes to compensate civilians affected by war, no matter who was the responsible actor, without such reparations being contingent on eligibility under IHL or IHRL. A harm-based approach to reparations recognises that a wide range of civilians has been harmed by armed conflict.

For ongoing military operations, any reparation programme must respond to both lawful civilian harm and violations of IHL and IHRL. The United States’ civilian harm mitigation and response action plan (CHMR-AP) allows for an escalation of a civilian harm assessment to a reporting process if there is “credible intelligence” that an IHL violation has been committed. This would counter criticism that a harm-based approach would allow those responsible to “pay off” harmed civilians as a means to foreclose any investigation into potential IHL violations or international crimes.

Reparations through a harm-based approach can also encourage better compliance with IHL by making belligerents more carefully consider the consequences of their decisions. Under CHMR-AP, engaging with reparations is not an institutional response alone, but one that responds to the needs and views of victims. At the same time, any measures offered through CHMR-AP will likely be short-term given the nature of ongoing hostilities, meaning that a domestic reparation programme will need to address long-term consequences. This does not negate the value of redress measures provided under CHMR-AP. In fact, such responsive interim reparative measures may ease some of the immediate consequences of the harm, such as access to specialist rehabilitation, that may reduce the cost of reparations later on.

Larry Lewis and others recently recommended modernising the ex gratia payment system when approaching large-scale combat operations, including by expanding the U.S. government’s ability to pay for assistance projects and expenses for civilian harm. There are lessons to be learnt from the reparations experience in societies transitioning from conflict. These include the sustainability and viability of socio-economic support to harmed civilians, the need to be responsive to victims’ needs (e.g., by funding income-generating projects for anti-personnel mine victims that go beyond their mobility), and the risks in providing redress to civilians seen as hostile (for example, this might end up in the pockets of the enemy). In large scale military operations between two States or multilateral action against a State, Roseanne Burke and Mark Lattimer argue that financial contributions could be made directly to domestic reparation programmes such as Iraq’s Law No. 20 on Compensating Victims of Military Operations, Military Mistakes and Terrorist Actions.

Concluding Thoughts

For victims who have lost a child or another relative, distinctions between what amounts to a violation and what is just incidental harm may seem abstract and academic. Taking a harm-based rather than a violation-based approach is more constructive. This can improve transparency and accountability for targeting and military operations, which are often belligerent-controlled decision-making processes. It also 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 with the strategic goals of CHMR-AP in not only winning hearts and minds, but also being emotionally intelligent in understanding victims’ perspectives and agency in seeking redress for their harm.

More broadly, it is important to recognise that IHL “cannot do it all” and that other frameworks can complement efforts at mitigating civilian harm. As lawyers, we need to be careful that in our good intentions of perpetuating a legal normative regime around IHL and ensuring reparations for violations, we do not condemn collateral damage victims to legal oblivion. At these anniversaries for the Geneva Conventions, we must be mindful of the suffering of all human beings and the need to make war more humane, not simply legally compliant.

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Photo credit: Sergey Zaykov