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FOCUS - Human Rights N. 1 - 13/03/2017

unione europea » dottrina - di Francesco De Santis Di Nicola

 Civil actions for damages caused by war crimes and the political act doctrine: what's new?

In general terms, civil actions for damages aim at compensating a person’s loss related to a possession or a utility. Can such remedial civil justice also serve the purpose of compensating the loss caused by the violation of human rights?In the past two decades, national courts have been called to examine several types of civil actions concerning serious violations of human rights originating in war crimes. These actions generally concerned a request by the victims or by the victim’s heirs, seeking award of compensation for the damages suffered as a result of such violations perpetuated by a State or by its agents. One would ask: “why are this kind of civil actions important?”. According to an eminent author, member of the Inter-American Commission of Human Rights, “[t]he primary function of corrective or remedial justice is to rectify the wrong done to a victim, that is, to correct injustice Even if human rights violations and money are not commensurable, damages are still justified because an award of damages serves to affirm a public respect for the victim and give public recognition of the wrongdoer’s fault in failing to respect basic rights.”. Civil actions for war crimes serve, among others, the purposes of obtaining a public acknowledgment of the tort and that of reaffirming the legal binding force of the rules protecting fundamental human rights. In other words, the control by an independent body, which takes on the point of view of the victims can be considered as necessary in order to implement the protection of human rights. Human rights law is legally binding and enforceable and it is not a mere declaration of principles. This applies even in times of war or in times of emergency: a democracy has to be able to fight against its enemies without denying – at least – the hard-core of human rights...(segue)



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