Courts and Cluster Munition Victims’ Rights

Posted on May 8, 2013

“Accountability mechanisms for failures, as regards to [cluster munition] clearance and victim assistance activities, by states acting individually or as troop contributing Nations to international organisations, must be clarified and addressed.” The Council of Europe Committee on Migration, Refugees and Population  noted in an opinion on the ban on cluster munitions.

The Committee observed: “In one case, in 2000, 8 boys playing in the Mitrovica hills came across a number of undetonated cluster bomb units dropped during the NATO bombardment of Kosovo in 1999 and began playing with them. Believing it was safe, one boy threw an undetonated cluster munition into the air. It exploded, killing one boy and blinding and disfiguring his brother. French troops forming part of UNMIK had failed to support de-mining activities and warn the local population as it was not a ‘high priority’. In 2007, the European Court of Human Rights found that the impugned action was attributable to the UN.”

The European Court of Human Rights decided that the case was inadmissible due to alleged lack of jurisdiction. A recent publication on that court case can be found here:  Behrami v. France: An Unfortunate Step Backwards in the Protection of Human Rights, Sadia R. Sorathia, March 8, 2013.

Such examples of compensation are still rare. In a different type of case, in 2009, the Eritrea-Ethiopia Claims Commission identified a monetary value to be awarded as compensation for loss of life and injuries caused when cluster bombs dropped on  the Ayder school in the town of Mekele, Ethiopia, killed fifty-three civilians including twelve school children (above image); another 185 civilians were wounded including 42 children.

Recently, however,  there have been at least a few successful cases.

“National and Regional Courts Uphold the Rights of Victims of Cluster Munitions” writes Megan Burke of the Monitor, in the Landmine and Cluster Munition Blog:

On 4 April, a Magistrate’s court in Israel awarded approximately €18,000 to a man severely injured by a cluster munition remnant in 2003. The court found that the Israeli state had failed to adequately protect the civilian from known dangers of what was once a firing range. The award included compensation for pain and suffering as well as for lost income as a result of a permanent disability.

This ruling follows other recent cases in which courts ruled in favor of the rights of victims of cluster munitions.

In November 2012, the Montenegrin court system awarded €85,000 in compensation for pain and suffering to the family members of a boy who was killed by a cluster submunition remnant in 1999. The, 17-year-old victim was killed by the submunition in a field that had been bombed the night before. The author of the report Yellow Killers and Monitor researcher Jelena Vicentic obtained the original court papers from the case that found a failure to “warn the citizens about the immediate danger to life and safety and to properly control the area in the given circumstances”

Also in November of last year, the Inter-American Court concluded its deliberations in the case known as the “Massacre of Santo Domingo” vs. Colombia. In its judgment, it found that Colombia violated the right to life of 17 civilians who died (including 6 children) and 27 others who were injured (including 9 children) following its use of cluster munitions when bombing a populated area of the country in 1998. The court also recognized other violations such as the right to special protection for children, the right to private property and the right to circulation and residency, since many residents of Santo Domingo were forced to leave their homes following the bombing.

While many of the victims had already received “no fault” compensation packages from the state, the court ordered the State to provide comprehensive reparations to the victims by publically acknowledging the incident, recognizing the suffering of the victims and ensuring comprehensive health and rehabilitative care for those victims who were injured in the bombing, as well as providing financial compensation in some cases.

These recent court decisions reinforce the norm that states hold a responsibility to protect their people from the effects of cluster munitions and their deadly remnants.  Regardless of who used the weapon, cluster munition victims’ rights and needs must be addressed. When states fail to protect, people have a right to compensation. The rights and needs of victims are also recognized within the Convention on Cluster Munitions, where assistance to victims of these weapons is an obligation. Victim assistance provisions within this Convention are the most comprehensive of any disarmament treaty and set the highest standard to be sure that these needs are met.