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NUMERO 15 - 29/07/2009

 Human rights and humanitarian law before domestic and European Courts. Two recent cases

The aim of this short essay is to take part in the largely debated question whether redress for victims of violations of international humanitarian law (IHL) can be provided for before domestic and international court and tribunals.
IHL has been regarded for a long time as inter-State law, therefore the question of the ‘justiciability’ of the rights provided for in the IHL treaties is still pending. After the development of a substantial corpus juris on the international protection of human rights, together with the establishment of a system of judicial monitoring of State compliance, the issue of the defence of fundamental human rights during armed conflicts has become central. The possibility to claim for the protection of victims of violations of IHL using tools of the ‘complementary’ system of international human rights law is, in practice, highly controversial.
Two recent cases have been selected: the Varvarin and the Marković cases, brought in German and Italian courts, respectively. They both deal with the North Atlantic Treaty Organization (NATO) air campaign conducted From 24 March to June 10, 1999 against the Federal Republic of Yugoslavia (FRY)–Operation Allied Force. Several applications have been lodged by relatives of Yugoslav nationals killed during the air campaign with domestic and international courts. The applicants believed that civil liability for the deaths of their relatives, “collateral damages” of the Operation Allied Force, laid within state authorities.. Although NATO has not released official estimates of civilians or combatants killed, media have stated that a high number of civilians died in NATO air raids. Euphemistically, in cases in which respect and protection of the civilian population is not ensured, states tend to speak of “collateral damages”, a military jargon for the wounding or the killing of civilians and the damage of their private goods as a consequence of military operations
While the Varvarin case had been declared admissible in 2003, but the compensation claim not recognised, the Italian Supreme Court affirmed, in a preliminary ruling on jurisdiction in 2002, that Italian courts lacked jurisdiction in the Marković case. An application against Italy was then lodged with the European Court of Human Rights, which declared it partially inadmissible in 2003 and examined the merits of the case at the same time as the issue of admissibility in 2006, finding that Italy did not violate the European Convention on Human Rights (ECHR).

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