A brief overview of the law, victim assistance and Improvised Explosive Devices.

IEDs are used more prolifically – and with greater harm – than many other explosive weapons for which international law has already been well established. For instance, the rights of victims of landmines[1] and cluster munitions are framed in two international ratified conventions.

For many victims of IEDs, though, there is no such easily-framed legal redress. And yet the harm wrought by IEDs is so great that similar governance is arguably never more needed. Far more civilians are maimed by IEDs than killed, meaning thousands of civilians require long-term medical help and rehabilitation.

The following report provides a brief outline of where the law stands with regard to IED victim assistance. The annex to this report offers two examples of best practice in the provision of medical and financial aid to those civilians caught up in their deadly blast.

International law
International law recognises victim assistance under four areas of jurisprudence:

• International human rights law
• Customary human rights law
• International humanitarian law
• Normative frameworks

These areas establish the need for reparations to a victim if their rights have been violated through unlawful means, including the unlawful use of weapons in general. Many of these areas have relevance for the specific use of IEDs, both during conflict and in peacetime.

In legal terms, victim assistance is known as ‘reparations’ and their legal purpose is to wipe out the effect of any wrongdoing imposed.

Reparations come in three forms: restitution (returning the victim to a state prior to the incident), indemnity (compensation for financially assessable losses) and satisfaction. The following are the key considerations under the law.[2]

1. Who is a victim?

Victims of IEDs are those who have “physical, emotional, mental, economic or other impediments that have impinged on fundamental human rights.”

International law does not only recognise victims as those who are directly involved in an incident. It acknowledges indirect victims who have suffered because of a loss of employment or other impediments suffered by the direct victim. For instance, the dependents of those who have either died or whose livelihoods have been affected from the physical or psychological injury sustained by a victim of a suicide bomb blast. Indirect victims include those collectively affected, such as a community or group of people and may even include organisations or institutions if they have incurred property damage for instance.

These definitions are included in the following guidelines:

• 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
• Section 8 of the Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005 Basic Principles)

There are a number of treaties that refer to victims of specific types of attack, for instance, mine victims, or victims at the hands of cluster munitions. However, the principle of non-discrimination that’s embedded within international law dictates that state parties should not “discriminate against or among mine victims, or between mine survivors and other persons with disabilities, and to ensure that differences in treatment should only be based on medical, rehabilitative, psychological or socio-economic needs of the victims.” Such text is not only embedded within existing disarmament treaties, but are established principles of international human rights law.

• UN Charter Article 1, 2 and 7
• International Covenant on Civil and Political Rights (ICCPR) Article 26
• International Covenant on Economic, Social and Cultural Rights (ICESCR) most directly addresses equality issues in Article 2
• International Convention on the Elimination of all forms of Racial Discrimination (ICERD)
• Convention on the Rights of Persons with Disabilities (CRPD)

This principle of non-discrimination extends further to acknowledge that women, children and those with disabilities are particularly vulnerable, and specific mention is provided within the following instruments to provide them with special protection as well as to include both age and gender sensitive assistance. These are found in:

• The Geneva Conventions, and Additional Protocols I and II (in the context of armed conflict).
• Convention on the Rights of the Child 1989 (CRC) Art.39
• Convention on the Elimination of all Forms of Discrimination Against Women 1979 (CEDAW) Art.11.

2. Who has responsibility?

To different degrees, the network of laws pertaining to victim assistance (international, human rights, criminal and humanitarian) often places the perpetrator as both responsible and liable for remedies, including for the unlawful use of weapons.

This legal position is more straightforward where the state, or person within the state apparatus, has been found guilty of the unlawful use of an IED. Such liability can even extend to inadequate precautions being taken to protect civilians from a known threat.

The complication, though, lies in gaining reparations from non state actors where an unlawful act is being committed. In the case of IED attacks, the majority of cases are such.

The principle of reparations has been present in international law since 1907.

• The 1907 case of Chorzow[3], was the first to set the precedent and principle of reparations.
• Draft Articles on state Responsibility endorses situations where the state is responsible for reparations to the victim.
• Rule 149 International Committee of the Red Cross Customary International Humanitarian Law Study attributes liability to the state and non state actors in both national and international conflicts.
• Article 91 of the Additional Protocol I of the Geneva Conventions also talks about state responsibility in war time.
• 2006 Principles and Guidelines on a Right to a Remedy and Reparations for Victims of International Human Rights Law and International Humanitarian Law (2006 Guidelines) presents a non-exhaustive list of heads of reparations.
• UDHR Art.2 – the right to life – obligates states to ensure civilians are protected from the potential harm of an IED attack.
• Regional mechanisms such as the American Convention on Human Rights and the European Convention on Human Rights has upheld this right, resulting in redress of those affected by violence whether directly, indirectly and collectively (such as the impact on communities) and is established in customary human rights law[4].
• The International Criminal Court under Article 75 of the Rome Statute, is the first international mechanism to compensate victims in an established trust fund. Victims who testify within the ICC system, including victims of IED attacks, can receive reparations from the trust fund.
• Transitional justice mechanisms such as the International Criminal Tribunal of Yugoslavia and Rwanda, have provided avenues to establish criminal liability following the use of armed violence. Once liability is established, compensation could be awarded through a fund or through the domestic courts.
• Convention of the Rights of Persons with Disabilities (CRPD) Art. 16 obligates states to ensure the rehabilitation of those suffering from disabilities; this is often relevant to IED victims as many will acquire temporary or permanent disabilities as a result of an attack.
• Framework principles for securing the human rights of victims of terrorism also exist – Ben Emerson, UN Special Rapporteur On The Promotion And Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism, has written a report entitled ‘Framework principles for securing the human rights of victims of terrorism.’ Emmerson’s position is that terrorist acts amount to a violation of the human rights of the victims, irrespective of the question of direct or indirect state responsibility.

3. What does victim assistance entail?[5]

Reparations are best viewed through the prism of three legal forms:

Restitution/Rehabilitation
Restitution would see the victim returned to the situation existing before the attack. It’s acknowledged that this often cannot be achieved in the case of an IED attack. Victims of IED attacks will typically experience physical and psychological injuries, damages to property and loss of earnings. Rehabilitation however, can go someway in trying to return those things lost.

Rehabilitation includes the provision of medical services, employment and vocational programmes, as well as social inclusion. It is laid out in the following legal instruments:

• Convention on the Rights of Persons with Disabilities (CRPD) Article 26, has particular relevance to victims of IED attacks as many will acquire either temporary or permanent disabilities as a result of armed violence. It also points to the importance of peer support, community-based rehabilitation and multidisciplinary assessments of individual needs and strengths.
• UDHR Article 25 gives everyone the right to public health, medical care and social services on a non-discriminatory basis – rehabilitation is implied within this.
• The Convention on the Rights of the Child (CRC) Article 23 especially points to the need for rehabilitation services for children.
• The Third Geneva Convention Article 30, specifically mandates rehabilitation services in relation to prisoners of war.

In the case of IED attacks, rehabilitation is not something that requires specific laws implemented at the national level. A report by the UN Office on Disarmament Affairs ‘Assisting Landmine and other ERW Survivors in the Context of Disarmament, Disability and Development’, looks at victim assistance specifically at the hands of explosive remnants of war, which can include landmines, cluster munitions and other victim triggered IEDs. It iterates that rehabilitation would take part within the existing healthcare and social service systems, rehabilitation programmes and legislative and policy frameworks. To this end the role of all types of actors become relevant – international, NGOs and in particular state departments/ministries, which need to co-ordinate often more effectively to make any victim response effective.

The key components involved in victim assistance are therefore:

• Emergency and medical care
• Physical rehabilitation
• Psychological and psychosocial support
• Social and economic inclusion
• Data collection and laws and policies

Such requirements of the state fall within the following international law.

• UDHR Article 23 – everyone has the right to work; for victims of IED attacks, economic and social rights should not be impinged.
• CRPD Article 27 – states should recognise the right of those with disabilities to work alongside others.
• International Covenant of Economic, Social and Cultural Rights (ICESCR) – states have a proactive duty to ensure economic and social well-being of its citizens therefore, rectifying this infringement of their rights after an IED attack.
• CEDAW Article11 – women often have to take up employment in many countries affected by IED attacks, particularly if men in the family are injured. States Parties are obligated to take all appropriate measures to eliminate discrimination against women in the field of employment.

Compensation
Injury arising from an internationally wrongful act includes “any damage, whether material or moral, caused by the internationally wrongful act of a state”. ‘Material’ damage refers to financially assessable damage to property, and to other interests of the state and its nationals. While ‘moral’ damage encompasses aspects of individual pain and suffering.

Satisfaction
The third form of reparations includes satisfaction. This includes assurances to the victim of it not happening again and access to justice. This is enshrined in the following body of law:

• The Declaration of Basic Principles for Victims of Crime and Abuse of Power established by the UN General Assembly in 1985, gave legal rights for victims in criminal proceedings. This should be equally applicable to victims of IED attacks.
• UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of Humanitarian Law (Van Boven/Bassiouni Principles).
• UN principles for the protection and promotion of human rights through action to combat impunity (Joinet/Orentlicher Principles).
• CRPD Article13 reaffirms the rights of victims to access to justice.

Disarmament Treaties and Guidance
Specific weapons such as anti-personnel landmines, cluster munitions and other explosive remnants of war are considered victim triggered IEDs. Those disarmament treaties covering these weapons arguably cover the effects of all IEDs as well, and there are a number of provisions within them that calls for victim assistance/ reparations for victims at the hands of such weapons.

• Convention on Cluster Munitions (CCM) Articles 2 and 5.
• Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines and their Destruction (APMB Treaty) Articles 6 and 7.
• Protocol V Convention on Conventional Weapons (CCW).
• The United Nations Policy on Victim Assistance in Mine Action (2016): responds to the increasingly varied nature of explosive threats to civilians, including IEDs.
• The UN Handbook on Landmines, ERW and IEDs includes guidance on emergency assistance including evacuation and first aid.

There is congruence amongst the three disarmament conventions about who constitutes a victim, and all three iterate the need for rehabilitation and age and gender sensitive victim assistance packages. However, it has been argued that the disarmament treaties redress mechanisms are limited and so claims for compensation from IEDs would not often occur through these.

There is no treaty on IEDs and the only resolution governing IEDs does not yet tackle the need for reparations for victims of IED attacks.

National compensation schemes
Many developed nations have set up compensation schemes to this end, schemes that are triggered when a terrorist attack has either taken place on their soil or if a national of their country was involved in a terror attack. However, there remains the very subjective question as to what degree of redress should be received by victims.

Unfortunately, quantitative guidelines do not exist, but it seems reasonable to expect reparations to be sufficient to offer financial remedy to alleviate some of the more pressing consequences of the attack (such as loss of livelihood).

A comparison of compensation packages in some high profile IED scenarios will highlight both best practice and where there are still inconsistencies and inadequacies in victim assistance. This paper hopes that the case studies in Annex 1 and 2 of this paper show that making a compensation scheme part of public policy in combating IEDs will ensure that such schemes are systematically and fairly administered and go some way towards offering the best recourse for victims.

Summary and Recommendations
The framework of international legal instruments that codifies the human rights of victims is comprehensive. At the same time, it is piecemeal and spans different frameworks of law. This means that their rights are quite clearly enshrined but enforcement mechanisms can be weak without specific instruments governing the remedies that victims are entitled to. These exist with certain types of victims but victims of IED attacks or armed violence are not addressed except in the form of guidelines.

This means that application of their rights can be inconsistent and prevent adequate access to services and ultimately access to justice if there is also no recognition that their rights have been violated. This applies to direct victims but even more so to indirect victims and the two case studies illustrate this.

Victim assistance for victims of IED attacks need to therefore, be drafted within a new legal instrument that specifically addresses the harm by IED attacks or armed violence in peace time and the victim assistance required from such an attack, obligating signatories to implement measures that work for the victim.

Presently domestic application of national legislation is replied upon, which could be further enhanced to take into account special assistance needed after major IED attacks and the major shortfalls experienced as illustrated by the two case studies.

For instance:

• Preparedness – the testing of emergency plans and ongoing training of professionals would anticipate treatments and needed mechanisms.
• Funding – generally more funding into IED response is needed for an adequate response that casts their net wide enough to capture all of those affected by an IED incident.
• Psychological assistance –victims sustaining psychological injuries are often overlooked. The screening for these victims should be embedded in immediate response protocols.
• Adequate compensation – consistently insufficient and very rarely redresses all victim grievances from an IED attack. However, if the system is at least deemed to be fair and consistent, this limits the grievance to parties that have already suffered.

The very nature of IED attacks is that they are spontaneous, occasional and send deep shock waves to local services that even resource rich countries are constantly striving to deal with. They provide however, a benchmark of response for all countries. A specific international instrument addressing the rights of victims in IED attacks will enable the implementation of this benchmark and encourage capacity building to do so.

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[1] Victim Operated Improvised Explosive Devices (VIEDs) are banned under the landmine treaty.

[2] Weapons under International Human Rights Law. Edited by Stuart Casey Maslen. Cambridge University Press. Chapter 18 Remedies and Reparations by Megan Burke and Loren Persi-Vicentic

[3] Factory at Chorzow (Germany v. Poland), 1928 P.C.I.J

[4] Including Issaya et al v Russia (ECtHR Judgment App. No. 57950/00), Abuyeva and others v Russia Judgment (App. No. 27065/05), Luis Anibal Bermudez Bernel v the Presidency of Columbia and others (Second Administrative Court of the District of Villavicencio), Yakar v Turkey (ECtHR App. No. 36189/97), Gulzar Mir v India (Court of Principal District Judge Kupwara) and Behrami v France (ECtHR App. No. 71412/01)

[5]

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