Direktklagen von kriegsopfern gegen staaten mit genauerem blick auf die NATO operation 'allied force' in der br Jugoslawien: 10 jahre spater

Abstract

The NATO intervention in the former Yugoslavia was accomplished 10 years ago and has caused a great number of civilian victims. Until now they have not succeeded in getting any relief, neither at international nor at municipal judicial level. Victims of armed conflicts were barred from getting any redress for wrongdoing due to the traditional concept of state immunity and the concept of non-justiciability of individual claims against States arising from events taken place in an armed conflict. The damage compensation proceedings conducted before national tribunals of state perpetrators ended in the de facto denial of justice and impunity. However, State perpetrators can be held responsible within the framework of international and applicable municipal law in the following way: Firstly, the tribunals in Serbia are the most convenient forum for the settlement of disputes arising out of torts committed with respect to war activities in Serbia. Secondly, the state immunity doctrine is not to be upheld in cases of serious violations of human rights and international humanitarian law, whereby such violations represent individualized and identifiable events. Finally, the individual must be regarded as the beneficiary of reparation for violation of international humanitarian law. Such a result has to be achieved by applying the method of adjustment known in Private International Law. As the international law contends mostly the primary norms, they must be amended with effects contained in norms of applicable municipal law of torts. Thus, if a primary norm of international law has been violated, the effects of such a tortious act should be judged in accordance with the municipal law applicable to the law of torts. Such an adjustment method of primary norms of international law was already applied in the criminal proceedings against the NAZI leaders.