The notion that wrongful acts committed by a state give rise to an obligation to redress the harm caused has a strong basis under international law, rooted in both international legal documents and jurisprudence. The 1907 Hague Convention (IV) on the Laws and Customs of War on Land, for instance, establishes under Article 3 that a ‘belligerent Party which violates the provisions of the…Regulations shall, if the case demands, be liable to pay compensation’.1 A similar provision can be found under Article 91 of Additional Protocol I to the Geneva Conventions.2 Furthermore, the Permanent Court of International Justice (PCIJ), in its 1928 Factory at Chorzow case, established that under international law any harm resulted from a wrongful act creates an obligation to grant measures to redress the harm.3 International law was initially conceived as the law that regulates the interaction among states, in order to maintain the international order. Consequently, only states were traditionally deemed subjects of international law, giving rise to relationships hinged on ‘full rights and obligations’4 among states. Access to redress for individuals was consequently inextricably linked with being a state’s national. A question that arises is what happens to persons who do not hold the nationality of any state, stateless persons.
Under the “traditional approach”, through diplomatic protection, stateless victims of wrongful acts were ‘left entirely without any recourse’,5 as under the traditional approach any wrongful act committed against an individual was a wrongful act committed against the individual’s state.6 This gave rise to an obligation of the harmed individual’s state to “vindicate” both itself and its citizen by demanding that the offending state redress the harm. This meant that victims of internationally wrongful acts depended on their state of nationality to file claims for reparations on their behalf against the state which harmed them,7 normally through diplomatic channels (diplomatic protection). Under this practice, nationality is a key element of access to redress for harm committed by a state. Therefore, the application of the traditional approach left stateless victims of wrongful acts ‘entirely without any recourse’.8
While today international law continues to be state-oriented to a large extent, access to redress for internationally wrongful acts9 is becoming less state-dependent.10 This is evident particularly when the victims of said internationally wrongful acts are individuals and not states or (international) entities. Today, there is a clear and well-established legal basis under international law which provides for the obligation to provide reparations to be given to victims affected by internationally wrongful acts. In the area of international human rights law, there is an extensive body of jurisprudence from regional human rights courts11 where a state is found guilty of committing human rights violations and is subsequently ordered to make reparations to the victims of said violations. This growing body of jurisprudence has contributed to shaping approaches to redress in the general field of international human rights law. Redress is also available for violations of international criminal law, especially before a relatively new international organism: The International Criminal Court, which has a victims’ mandate and places a greater emphasis on redress, in addition to punishing perpetrators. These developments have facilitated access to redress for stateless persons, who under the traditional approach were excluded from obtaining redress due to their lack of nationality.
Considering the attention that the issue of statelessness has gained in recent years,12 and the increasing amount of (legal) support available for stateless persons, the likelihood of more stateless persons seeking redress at international level is likely to increase in the future. This article aims to elaborate on the challenges and opportunities regarding access to redress for stateless persons before existing international legal mechanisms. The article focuses on exploring the aspects of the selected mechanisms that can pose a challenge to access to redress and looks at how the practice of these mechanisms has addressed (if at all) these challenges. For this purpose, three different existing international mechanisms with the powers to issue measures for redress have been selected. The first falls under the “traditional approach” to international claims through diplomatic protection (the United Nations Compensation Commission (UNCC)). The second selected mechanism is one of the existing human rights mechanisms which give victims of human rights violations direct access to seek justice and redress (the Inter-American Court of Human Rights (IACtHR)). The third is an international criminal law mechanism of a permanent nature (the International Criminal Court (ICC)). This is in order to provide readers with a rounded overview and appraisal of the available mechanisms for victims of violations of international legal obligations,13 focusing specifically on access to redress for stateless persons.14
This article takes a doctrinal and historical perspective to explore access for stateless persons to the mechanisms selected and is structured as follows. Section 2 provides a brief overview of the relationship between nationality and statelessness under international law and then discusses the link between “victimization” and statelessness, and reparations. Section 3 provides an overview of the history of the doctrine of diplomatic protection, which was the main mechanism for seeking redress internationally for many decades. It then explores the link between nationality and claims processes, and how the doctrine of diplomatic protection had to adapt to allow for stateless persons to access reparations for violations they suffered. Section 4 contains the 3 selected case-studies and an analysis of the law and practice of each mechanisms, focusing on access for stateless persons. The article ends with concluding remarks in section 5.
2 On nationality, statelessness, victimization, and redress
This section provides an overview of the relationship between nationality and statelessness under international law, and later discusses the link between “victimization” and statelessness on the one hand, and redress on the other. The term nationality denotes the membership of an individual to a community, based on various shared factors15 resulting in the legal recognition16 of the individual’s membership. Nationality is a legal concept which has been largely regulated by both domestic and international law, but in practice is granted to individuals through domestic law.17 Nationality serves various important roles under international law,18 among which—in some instances—is that of functioning as distinctive and triggering factor for access to redress. This is due to its usefulness in determining ‘the scope of application of basic rights and obligations of states vis-à-vis other states’19 as well as the scope of application of treaties and diplomatic protection.20 Nationality is the legal link between the individual and the state, and since traditionally only states were subjects of international law, nationality also serves as ‘the link between the individual and the law of nations’,21 making it an indispensable legal concept. This membership gives rise to a reciprocal relationship of mutual rights and duties between the individual and the state. On the state’s part, this includes its duty to protect its nationals from violations perpetrated by other states. When its nationals have been harmed by other states, it is the state’s right to exercise22 diplomatic protection on their behalf for losses or harms.23
By definition, a stateless person is an individual who is ‘not considered as a national by any state under the operation of its law’.24 Statelessness is a legal concept, as it denotes a (lack of) legal status, and is often characterized as a violation of the right to nationality.25 However, statelessness is not only a violation of the right to nationality, but is also a (potentially corrosive) “human condition”26 which frequently makes individuals vulnerable to further human rights violations. Life without a nationality can have “destabilizing effects”,27 including the inability to enjoy a socio-political life,28 the inability to find decent employment,29 lack of access to healthcare and education, limitations on freedom of movement, lack of state protection, lack of access to official documentation, to name a few.30 The challenges mentioned above can create a situation of vulnerability for many stateless persons.31 Therefore, statelessness is a violation of an international right—the right to nationality—but also opens the way to the violation of other rights. In addition, some stateless persons, like the Rohingya, suffer from additional violations of their rights at the hands of state authorities, not as a direct result of their lack of nationality.
It should be stressed that even though stateless persons worldwide share a common trait—their lack of nationality—their experiences are different depending on the context they live in,32 including their experiences of harm, and the degree to which they feel “victimized” by said harm.33 According to Letschert & van der Velde, statelessness can victimize individuals in various ways34 and to different degrees. Victimization35 is defined as a process36 where an external force comes in contact with a person, resulting in physical, psychological, or emotional harm.37 The term victim in this context refers to the individual who experienced said harm.38 This harm can be temporary or can have lifelong effects and can sometimes result in death.39 As it was previously mentioned, under international law, any harm caused as a result from a violation of an international norm gives rise to an obligation to redress said harm. However, due to the previously mentioned vulnerability experienced by some stateless persons, some are fearful of coming forth to state authorities or seek legal assistance from international organisations and NGOs when they are harmed. This can hinder access to redress, since accessing redress often requires making themselves visible to state authorities or other entities that can assist them in the process.40 The next paragraph will elaborate on how redress is understood for the purposes of this article.
Redress refers to the act of repairing a harm; redress is obtained through remedies, which refers to the measures through which redress is obtained. According to Shelton, the concept of remedies refers to two concepts, the first a procedural concept and the second a substantive concept.41 As a procedural concept, remedies refer to the processes through which claims of human rights violations are heard before a competent authority and decided upon.42 As a substantive concept, remedies refer to the outcome of the aforementioned processes, the concrete relief afforded43 to the successful claimant. The concept of remedies is deeply linked to the concept of access to justice, since the obligation to afford any form of remedy for any form of violation requires ‘the existence of remedial institutions and procedures to which victims may have access’.44 As previously mentioned, the right of victims of internationally wrongful acts to seek and obtain redress for the harm they experienced finds its legal basis under various international legal instruments at both international45 and regional levels.46
The term “reparations” is normally used in international legal documents instead of the term “remedies”.47 “Reparations” refers to the concrete measures through which an entity—typically a state—can repair consequences of a violation of international norms.48 The main goal of reparations is to ‘eliminate, as far as possible, the consequences of the illegal act and to restore the situation that would have existed if the act had not been committed’,49 which can be done through reparatory measures including restitution, compensation, and ‘measures to ensure satisfaction’, among others.50 Remedies are therefore the widely accepted consequences of an internationally wrongful act, and reparations are the concrete measures through which said act is remedied. The aim of reparations is to dictate the concrete measures that should restore the victim to his/her situation prior to the violation suffered, as established in the PCIJ’s landmark Factory at Chorzow case.51 Reparatory measures that are suitable for one set of victims will perhaps not be suitable for a different set of victims. Therefore, reparations should always be proportional to the harm incurred and considering the context and background of the harmed individual(s).52 While reparations can repair only the consequences of violations, it is important to note that reparations are also important in enforcement and determent from future violations,53 for example by requiring measures like guarantees of non-repetition.54 The importance of reparations lies in the significance for the victim. While it is often impossible to restore the victim to the situation existing prior to the violation, redress can aid in mending the wounds caused by said violations, helping victims move forward with their lives. For the purposes of this article, the term reparations will be used when referring to the concrete substantive measures to redress a wrong, whereas redress will be used to refer to the overall aim of the measures.
3 On diplomatic protection and nationality
This section provides an overview of the history of the doctrine of diplomatic protection, which was the main mechanism for seeking redress on the international plane for many decades. It then explores the link between nationality and claims processes, and how the doctrine of diplomatic protection had to adapt to allow for stateless persons to access reparations for the violations they suffered. In the context of inter-state claims for internationally wrongful acts, ‘the “traditional” position concerning stateless persons is simple: no state may claim on their behalf’.55 In fact, according to Hailbronner, ‘a state may not […] protect foreign or stateless individuals, even if they have taken up prolonged residence on its territory’.56 Therefore, in line with the previously mentioned “traditional approach”, they cannot avail themselves of diplomatic protection57 and its benefits, which includes having claims filed on their behalf. The section concludes with a discussion on the change that resulted from the development of human rights in recent years relating to diplomatic protection.
3.1 The “traditional approach”
The “traditional” framework for diplomatic protection—rooted in the writings of Vattel58—developed during the early years of international law, a time when the individual had no standing under international law and thus held no role in the international legal order: the system was exclusively state-centric.59 For this reason, diplomatic protection was “traditionally” considered an exclusive right of the state.60 What does diplomatic protection entail? Diplomatic protection is based on the premise that ‘an injury to a national is an injury to the state itself’,61 which entitles the state to seek redress for the offense through diplomatic protection. This concept refers to a state’s right and ability62 to take up a claim on behalf of its nationals. Therefore, if a national was injured by a state other than his/her own, protection could only be ensured through a “fiction”,63 which meant that an injury to a national became an injury to the state of nationality of the harmed individual. This became the common practice for claiming reparations owed to victims of an internationally wrongful act.64
A State’s ability to exercise diplomatic protection has historically been considered—under international customary law65—an essential tool for the protection of (human) rights, property, and economic resources of its nationals. Diplomatic protection can take several different forms, including ‘negotiation, mediation, conciliation (including by conciliation commission), arbitration, adjudication…’66 among others. When reparations are owed, payments—typically in the form of a lump sum67—are made by the liable state to the harmed individual’s state68 in its name, rather than in the victims’ name. The state then usually pays the victims.69 It is therefore the state, rather than the individual, who has a say in the claims process70 under this “traditional approach”. Furthermore, when a state takes up a claim of one of its nationals, the claim is ‘automatically raised to the international plane resulting in international rights and obligations’.71 Traditionally, diplomatic protection encompassed ‘both the economic interests and the treatment of individuals abroad’,72 the latter which would cover any violations of the individual’s human rights.
There is a body of case law of fundamental value for legal doctrine on diplomatic protection. The PCIJ—in its landmark Mavrommatis case—elaborated on this concept, stating that ‘it is an elementary principle of international law that a state is entitled to protect its subjects when injured by acts contrary to international law committed by another state’.73 Therefore, by resorting to diplomatic protection, ‘a state is in reality asserting its own rights’74 and the respect for international law. Following this reasoning, under the “traditional approach”, the state has the right to assert claims for violations—internationally wrongful acts—incurred by its nationals in the hands of another state. However, it should be kept in mind that Mavrommatis does not necessarily reflect current perspectives, as the judgment on the case was issued in 1924, a time when states were the ‘single and most important subject(s) of international law’.75 At the time, the doctrine of the “fiction”—which gave the state the necessary locus standi to espouse claims on behalf of its nationals—was essential, since individuals had no other mechanisms to turn to which would bring them redress for the violations they suffered. This view was also upheld in Nottebohm, where the International Court of Justice (ICJ) stated that ‘Diplomatic protection and protection by means of international judicial proceedings constitute measures for the defence of the rights of the state’.76 This has changed with the advent of human rights law and its oversight bodies, as will be discussed later.
The Panevezys-Saldutiskis Railway Case is another landmark case for the doctrine of diplomatic protection regarding the necessity of a link between individual and state through the legal bond of nationality. In this case, the PCIJ pronounced itself on the issue of nationality77 and diplomatic protection, stating that ‘it is the bond of nationality between the state and the individual which (…) confers upon the state the right of diplomatic protection’.78 In other words, without the existence of this bond of nationality, the state does not have the locus standi it needs in order to bring claims against another state.79 Nationality is an essential element for the possibility of the state to exercise diplomatic protection, since without that bond, the necessary “fiction” of the injury against the state resulting from an injury towards one of its nationals cannot be present. For this reason, under the “traditional approach”, stateless persons could not benefit from diplomatic protection. However, there have been exceptions to this doctrine. The ICJ, as early as 1949 in its Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion, stated that ‘there are cases in which protection may be exercised by a state on behalf of persons not having its nationality’.80 In addition, the increasing ability of individuals to access redress mechanisms confronts the “traditional” doctrine of diplomatic protection,81 pushing it towards becoming obsolete. Adding to this is the fact that stateless persons have been able to access justice and seek redress for violations suffered before various international legal mechanisms,82 as the subsequent sections will show.
3.2 Diplomatic protection and its interaction with human rights
The fast-paced development of international human rights standards, practices and judicial/semi-judicial mechanisms over the last few decades have decreased the use for diplomatic protection as a means for individuals to obtain redress for internationally wrongful acts. According to Vermeer-Künzli, there is ‘no doubt that the injury that stands at the basis of the exercise of diplomatic protection is an injury of individual rights’.83 However, the tenets of “traditional” diplomatic protection can be at odds with the premises of international human rights law, especially regarding the ‘autonomy of the individual to seek redress for injury’84 under international law.85 This is because autonomy is not permitted under the diplomatic protection approach for seeking redress. Even though both approaches have a similar goal—redress for violations of rights—they take very different paths to attain their goal. According to Orrego Vicuña, ‘The law of human rights…opened up a clear path for the direct access of the individual to international mechanisms for the assertion of claims’.86 On the other hand, the diplomatic protection approach remains focused on the state, and not creating direct access for the individual. Due to the fact that international human rights law, as a field, has developed into a legal domain of its own with a large body of jurisprudence on access to redress, it is logical to conclude that human rights law is a completely separate area of law from diplomatic protection, despite their common focus on rights protection and redress for violations of rights.87 While diplomatic protection in the field of protecting an individual’s rights is no longer as necessary as it was in the past due to the significant developments in the domain of human rights, it remains relevant regarding the protection of economic interests.
Finally, it is important to note that often the perpetrator of human rights abuses is the state of nationality or habitual residence. States have often committed internationally wrongful acts against their own nationals, and international human rights law has developed, historically, into norms that protected the rights of individuals not only from other states, but from violations committed by their own states.88 Today, human rights law provides that the victim does not need to rely on his/her state of nationality or habitual residence in order to obtain redress before international legal mechanisms.89 As a matter of fact, in many cases victims are bringing claims of human rights abuses against their state of nationality or habitual residence.90 The IACtHR has made a statement on this, affirming in one of its advisory opinions that ‘the object and purpose of the Convention is not the exchange of reciprocal rights between a limited number of states, but the protection of the human rights of all individual human beings within the Americas, irrespective of their nationality’.91
In conclusion, this discussion has shown that diplomatic protection was in the past the only channel through which an individual could seek redress for harm incurred as a result of an internationally wrongful act. The right to exercise diplomatic protection was an exclusive right of the state, through the doctrine of the “legal fiction”, which is anchored in nationality.92 This continues to be true to some extent. While it is true that to this day only states can exercise diplomatic protection over individuals, it is undeniable that the role of the state as the exclusive link between individuals and their ability to access to redress is no longer absolute. This is especially true regarding access to redress through international legal channels, like the mechanisms selected in this article, which will be discussed in more depth in section 4.
4 Case-studies: The United Nations Compensation Commission (UNCC), the Inter-American Court of Human Rights, and the International Criminal Court
4.1 The United Nations Compensation Commission
4.1.1 Background and process
The UNCC93 was created by the UN Security Council (UNSC) following Iraq’s invasion of Kuwait in 1990 that resulted in the Gulf War. The UNCC was set up to manage approximately 2.7 million claims94 of victims who suffered violations resulting from Iraq’s invasion of Kuwait in 1990.95 The violation of Kuwait’s territorial sovereignty resulted in Iraq’s international responsibility96 for violations of the laws and customs of armed conflict (jus in bello) and for an act of aggression against another state. Acting under its powers in Chapter VII of the UN Charter, the UNSC established Iraq’s liability97 and set up the UNCC, which would grant financial compensation to victims who incurred ‘any loss, damage or injury…as a [direct] result of the invasion and illegal occupation…’98 funded by the proceeds of Iraqi oil. The creation of this organ was the UNSC’s ‘first attempt to establish an international claims settlement agency against a state’.99 The UNCC was not set up as a court or a tribunal100 and served an administrative rather than judicial role. The first aspect of redress, namely finding the perpetrator of the wrongful act guilty, had, in fact, already been addressed by the UNSC before the UNCC was established.
The UNCC was based on three existing models, namely ‘(1) the Iran-U.S. Claims Tribunals, (2) a variety of government-sponsored compensation programs, and (3) a broad range of claims resolution facilities from other contexts’.101 These mechanisms followed the “traditional” diplomatic protection approach, which requires the State of nationality to file claims on behalf of its nationals. The acts for which compensations were due included ‘arbitrary killings, torture, enforced disappearance, and the seizure and destruction of property’102 among others. Claims were categorized into six categories (A–F), with categories A–C corresponding to claims by individuals.103 Regarding individual claims, successful claims had to be paid to the government, and the government in turn had to compensate the individuals within six months.104 Only States and international organisations were granted competence ratione personae to submit claims before the UNCC on behalf of individuals, corporations or on their own behalf.105 Therefore, when ‘seeking compensation, individuals […] rely on their state of nationality’106 which is in line with international practice on diplomatic protection. For this reason, stateless persons were initially unable to file claims for compensation.
4.1.2 Statelessness at the UNCC: challenges and opportunities
Ensuring that everyone affected by the Gulf War could ‘have recourse to a remedy, regardless of nationality, or more importantly, non-nationality’107 was, nevertheless, a priority for the UNCC. Its model presented a response to the challenges and opportunities arising from their mandate to ensure that the stateless victims of the war could access redress, in the form of compensation. It became clear from the start that some individuals would not be able to access compensation, among which Palestinians represented the largest group. Drafters felt that the international community bore responsibility to protect their interests,108 and included Article 5.1 of the UNCC’s Rules which allowed a state to submit claims ‘at its discretion, of other persons resident in its territory’109 who were not their nationals.110 Some states were willing to adopt a more expansive definition, while others continued to adhere to the “traditional” rule of diplomatic protection and submitted claims only on behalf of their own nationals.111 However, part of the requirements for individuals to be able to file claims through this mechanism was to hold legal residence in the country where they were at the moment of filing the application, and this translated into many individuals being unable to file claims.112 Another challenge became clear: some states would be unwilling or unable to submit claims on behalf of stateless persons. For this reason, Article 5.2 of the Rules was included in the UNCC’s Rules, allowing for an appointed body or authority to submit claims on behalf of individuals whose claims could not be submitted by a state.113 Three UN agencies, the UN Development Program (UNDP), UN Relief and Works Agency for Palestine Refugees (UNRWA),114 and UN High Commissioner for Refugees (UNHCR) were appointed to submit claims on behalf of stateless individuals.115
Another challenge the UNCC faced was late claims, as not everyone who had been affected by the Gulf War was able to file claims on time; this challenge affected stateless persons, especially Palestinians.116 However, the UNCC was able to turn this challenge into an opportunity to ensure access to redress. In 2001, a late claims117 program was established, taking care of Palestinians who had been unable to file claims during the regular period.118 Under the late claims program, the Palestinian Authority (PA) was able to submit approximately 46,400 claims.119 This was an unprecedented occurrence, as it appears that the PA was able to exercise State powers and submit claims, even though initially only formally recognized States could file claims.120 Furthermore, in 2004, a “special accelerated program”121 was created for Bidoon stateless persons living in Kuwait.122 While three UN agencies were able to file claims on behalf of Palestinians, no entity took the responsibility to file claims on behalf of the Bidoon.123 Eventually, Kuwait requested to the UNCC’s governing council124 to be allowed to file claims on their behalf.125 Under this program, the government of Kuwait was able to submit approximately 32,000 claims on behalf of Bidoons.126 It should be noted that the UNCC’s Governing Council—as a norm—generally did not allow for late claims to be filed.127 However, it is clear that special cases—like the cases of stateless individuals—were taken into account and leniency was required.
For these reasons, the UNCC’s work has been hailed as an innovative ‘departure from previous war reparations practice’128 for its various special measures to address the challenges faced by stateless persons in accessing redress. They were able to turn challenges into opportunities. However, caution is necessary. It should be emphasized that the UNCC’s practice did not change the international law of diplomatic protection129 but deviated from it, creating—at least in the domain of claims mechanisms—a new model to be applied in special circumstances. In some respects, the UNCC has departed from the “traditional approach” of diplomatic protection and has developed its own approach to fit its needs. According to McGovern, due to these departures from the “traditional” approach, it is possible to say that the UNCC ‘is sui generis and its holdings are lex specialis’.130 This is evident if compared to other claims mechanisms and tribunals of a similar nature which strictly required the state of nationality to bring claims on behalf of its nationals.
Furthermore, the UNCC’s departure is not absolute, as it still required a state or an “entity” to file claims on behalf of individuals. However, the fact that it did not strictly require the state of nationality to carry out this function and actively sought solutions to ensure that those who could not have their state of nationality file claims on their behalf through other “entities” was new. In this sense, its practice was also not in line with that of human rights mechanisms existing at the time.131 Furthermore, through the work of the UNCC, humanitarian considerations began to enjoy a more central role in war reparations processes, a trend which has continued to the present day and will most likely continue in the future.132 In fact, according to Frigessi di Rattalma and Treves, all ‘these departures go in the direction of the humanization of the international law of state responsibility’.133 The individual, as a victim, is beginning to gain a more central role in the international law of state responsibility as the benefactor of compensation efforts, rather than as a means for the state to assert its rights vis-à-vis another state under international law. The UNCC’s practice is in line with a trend that began to develop in the 20th and 21st centuries with the creation of human rights mechanisms and (international) criminal tribunals.134
Regarding challenges and opportunities for access to redress for stateless persons under this mechanism, it should be emphasized the fact that the UNCC had to adopt special strategies to ensure their access. This meant deviating from common practice, which posed both a challenge and an opportunity. It also showed that sometimes international legal challenges require innovative solutions. The creation of the UNCC itself set ‘an important precedent in international law’,135 because it was the first time an international claims agency was created by the UNSC. Another important precedent set by the UNCC is that, according to Townsend, it ‘has left behind the formalities of classic diplomatic espousal for a more flexible approach’136 by allowing United Nations (UN) agencies and states that would normally not be able to file claims on behalf of stateless persons to file claims on their behalf. Its work contributed to recent developments in placing the individual, rather than the state, at the centre of international law.137
4.2 The Inter-American Court of Human Rights
4.2.1 Background and process
The Inter-American system’s ‘origins lie in two distinct, though interrelated, instruments’,138 the American Convention on Human Rights (ACHR), adopted in 1969, and the American Declaration on the Rights and Duties of Man (American Declaration), adopted in 1948. Both instruments are overseen by the same authority, the Inter-American Commission on Human Rights (IACommHR). This authority has the power to receive and process communications139 from Member States of the Organization of American States,140 individuals and organizations for any alleged violations of human rights enshrined in the American Declaration or the ACHR.141 The Commission must first establish whether a complaint meets the requirements for admissibility, and can then ‘hold hearings on the complaint, and (…) try to effectuate a friendly settlement’.142 If no settlement is reached, the Commission can submit the case to the Inter-American Court of Human Rights (IACtHR). The IACtHR has the power to adjudicate cases where violations of the ACHR are alleged, after referral to the Court by the Commission.143 Cases can be referred to the IACtHR if the state in question has accepted the court’s jurisdiction.144 The ACHR does not allow for individuals to bring a case before the IACtHR;145 only the Commission can receive petitions from individuals, and then can bring cases before the Court on behalf of the victims. Therefore, the Commission is party to the proceedings before the Court, and not the individual.146 Individuals are fully dependent on the Commission regarding any prospects of obtaining redress for the violations they suffered.147
Professor Cassin, during a speech before OAS during the preparatory meetings for the creation and adoption of the ACHR, stated that the most important goal to achieve with the emerging instrument and court was to have a mechanism that would effectively prevent human rights violations and provide reparations for violations.148 Regarding reparations, the IACtHR seeks to achieve ‘integral reparation’, which refers to a comprehensive reparatory framework—composed of various reparatory measures—which can help fully redress human rights violations.149 Access to justice in the Inter-American system must therefore ensure—within a reasonable time period—the right of the (alleged) victims for the truth to be known, to see the responsible party punished and see compensation for the violation they suffered.150 In this spirit, it is clear that the purpose of the Inter-American Human Rights System as a whole is to ensure that the human rights of all persons in the Americas are protected, irrespective of their nationality or lack thereof, rather than to protect state interests.151 Every individual in the region whose rights are violated by a state has the right to seek redress for said violations before the system, irrespective of nationality or lack thereof. Regarding stateless persons, the IACtHR has heard and decided on two cases, the Yean and Bosico v Dominican Republic case and the Expelled Dominican and Haitian People v the Dominican Republic case.152
4.2.2 Statelessness at the IACtHR: challenges and opportunities
In Expelled Dominican and Haitian People v the Dominican Republic, a number of applicants submitted a communication to the IACommHR on the detention and mass expulsion of over 20,000 individuals from the Dominican Republic in 1999.153 The applicants claimed that excessive force was used by the authorities, including sexual abuse, psychological damage, and economic hardship resulting from the forced expulsions.154 Impediments in obtaining nationality for those of Haitian origin155—despite being born on Dominican soil—had left thousands stateless.156 The case was first heard before the IACommHR and was later on referred to the IACtHR. In Yean and Bosico, two Dominican girls of Haitian origin had been denied birth certificates by the Dominican authorities.157 This denial rendered the girls stateless and unable to access various essential rights, and in danger of expulsion. One of the girls was unable to attend school due to lack of documentation.158 In both cases the IACtHR ruled in favour of the applicants.
Identification of stateless victims during proceedings was the primary challenge faced by stateless persons in Expelled Dominican and Haitian People v Dominican Republic. For example, the state claimed one of the victims had suffered from identity theft, as the person who had been recognized as a victim allegedly could not be identified by his family members as the person he claimed to be.159 However, these claims were rejected by the court and the individuals were later on allowed to participate as victims in the proceedings and eventually were granted reparations for the violations they experienced once the IACtHR found the state had violated their rights. This is a potential challenge posed by a person’s statelessness regarding access to redress. Due to their lack of recognition by the state as its nationals, stateless persons frequently lack identification documents. This lack of documentation makes it difficult to ascertain if the individual in question is in fact who he/she claims to be. In relation to this, one of the legal challenges the Dominican Republic posed during proceedings was related to the inability to ascertain claims to “victimhood” by some of the claimants. The state alleged that the individuals in question had not suffered a violation of the right to nationality (article 20) as they could not prove they were being deprived of Dominican nationality because they could not prove they were Dominican by birth. The Dominican Republic claimed that it was not possible to determine the country of birth of some of the applicants, due to their lack of a birth certificate.160
This challenge posed by the state could have potentially disqualified stateless individuals as claimants in the case, since it would cast into doubt their right to Dominican nationality by virtue of jus soli, a right they claimed was being violated.161 This posed a challenge to their ability to access redress because had they not been recognized as legitimate claimants in the case, they would not be able to benefit from any reparatory measures issued by the IACtHR. However, the Court considered that this lack of evidence did ‘not prevent them from continuing to be presumed victims in this case’.162 In the same case, there were individuals who did possess identification documents, but the state argued that some of the documents presented by the applicants as evidence had ‘shortcomings that jeopardize the authenticity of the document’.163 However, the victims’ representatives stated that the IACtHR should consider the specific circumstances of the case since following the expulsions, the victims were placed in marginalized living conditions, which made it difficult for them to notarize the documents for submission.164 On this matter, the Court found in favour of the applicants. In Yean and Bosico, the victims (who were children at the time) did not face documentation challenges in accessing the Court.
The IACtHR has referred to article 63 ACHR165—which grants it the power to rule on appropriate recommendations—as an embodiment of customary international law and a key principle regarding state responsibility.166 Reparations, as the IACtHR has established, must have a ‘causal nexus with the facts of the case, the violations declared, the harm proved, and the measures requested to repair the respective harm’.167 Under article 63 ACHR, the IACtHR168 enjoys broad169 remedial jurisdiction, having the power to order remedies other than monetary compensation.170 Most human rights violations can never be fully redressed, since human rights violations often leave deep scars in the victims. For this reason, the IACtHR considers that there are other measures to ‘ensure the rights that have been violated and to redress the consequences of the violations’.171 According to the IACtHR, ‘the purpose of reparations is to eliminate the effects of the violations that have been committed’.172 This purpose is also known as restitution in integrum.173 They should not make the victim richer or poorer;174 they should restore the individual to the situation he/she enjoyed before the violation, repair the consequences of the violation and indemnify the victim for damages, including non-quantifiable harm such as emotional harm.175
In Expelled Persons, the IACtHR considered that it was necessary to ‘award different reparatory measures to ensure the violated rights and to redress the harm integrally’.176 In both of the cases concerning stateless persons, the primary reparatory measure ordered was restitution of the right to nationality of the victims.177 Furthermore, compensation was issued for pecuniary damage, which refers to any form of damage that can be quantified, such as loss of income, in both cases paid to the victims and in Yean and Bosico, to the parents of the children.178 Payments to the victims were made directly to them,179 but it is not specified whether they faced any challenges in relation to obtaining the payments. The reason why this is of concern is that stateless persons often face issues in opening bank accounts.180 Regarding non-pecuniary damage, in Yean and Bosico the IActHR considered that the judgment—together with the various measures of satisfaction and the guarantees of non-repetition—constituted an adequate form of reparation. In the same decision, as part of ‘other forms of reparation’, the IACtHR ordered the state to publicly acknowledge its international responsibility for the violations through a public apology181 and make the relevant sections of the judgment public. Furthermore, the state was ordered to amend its laws and adopt measures that can permit acquisition of nationality through late declaration of birth,182 a provision that if implemented would have ended the issue of statelessness in the country. A program to provide human rights training to state officials was also ordered by the IACtHR.183 These actions would also serve as guarantees of non-repetition.184
It has been shown how one of the main challenges faced by stateless persons in accessing redress at the IACtHR has been proof of identity, through identification documents proving who they claim to be. The reason why this could pose a challenge is that being identified as victims of the alleged human rights violations is a requirement for access to redress in the form of reparatory measures. As mentioned previously, challenges regarding proof of identity almost disqualified some of the victims from being able to access redress, regarding the acknowledgement the state’s responsibility for violating their rights and, consequently, to access reparations for said violations. The IACtHR turned this challenge into an opportunity, by taking into account the special situation of stateless persons and showing leniency regarding identification documents. Regarding reparatory measures, the IACtHR in both cases focused on restitution as the primary measure: it ordered the Dominican state to restore the stateless victims with their Dominican nationality. This measure sought to redress the violation of article 20 ACHR, the right to nationality, they suffered which caused several other violations. Regarding other reparatory measures the IACtHR, in line with its general practice, issued specific reparatory measures including compensation and guarantees of non-repetition.
4.3 The International Criminal Court
4.3.1 Background and process
A mechanism that, for the time being, has not heard cases on stateless persons but is nevertheless worth considering is the ICC. As previously mentioned, stateless persons are vulnerable to violations of their rights, with the recent Rohingya crisis serving as a shocking example of this.185 It is possible that in the future, the ICC could prosecute some of the perpetrators of gross abuses against the Rohingya. In fact, the ICC’s prosecutor announced a preliminary examination into the gross violations which resulted in the violent and forced displacement, perpetrated by Myanmar’s army, of Rohingyas from Myanmar into Bangladesh.186 A submission on behalf of the victims has been submitted to the court’s Pre-Trial Chamber I.187 The situation in the Occupied Palestinian territories188 is also under investigation for violations against Palestinians, who are among the world’s largest stateless populations. Furthermore, the ICC plays a central role in international justice: it has strong provisions allowing for greater participation of victims in proceedings and has granted reparations to victims in its rulings.189 For these reasons, the ICC was also considered for this study.
The ICC was established following the creation of two ad hoc tribunals: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) during the 1990s. The creation of these two special courts was preceded by decades of talks about creating an international tribunal to prosecute the worst internationally wrongful acts. It was only after the creation of these tribunals that the necessity for an international criminal court of a more permanent character became clear. Following a complex process, in 1998 the UN General Assembly adopted the Rome Statute (RS), which entered into force in 2002 and, by 2003, the ICC became fully functional. The RS grants the court jurisdiction over war crimes, crimes against humanity, genocide and crimes of aggression that have taken place after it entered into force. What sets the ICC apart from its predecessors is the role it grants victims. During the preparatory meetings before the adoption of the Rome Statute, some states noted that the victim was ‘notably absent from the penal system’.190 The expansion of the role of victims was eventually adopted into the rules and practice of the court.191 Unlike previous international criminal tribunals, victim participation before the ICC has a wider scope,192 providing a prominent role for victims in the proceedings,193 and allowing for measures to redress violations.194 In this sense, the ICC’s mandate leads an emerging trend under international criminal justice.195
4.3.2 Statelessness at the ICC: challenges and opportunities
Participation is important in international criminal legal proceedings. According to Cryer et al., the main purpose of victim participation is to ‘contribute to the prosecution and obtain restitution or reparation and other forms of satisfaction’.196 For the victims, participation can help ensure that the experience of the violations they suffered can be heard in their own terms and own voices, and can contribute to the reconciliation of a community or an entire country.197 It should be noted that victims before the ICC are not given the status of a partie civile—or civil party—as is common in civil law systems.198 The ICC allows victims to present their views and concerns through their legal representatives.199 However, despite having this possibility, victims are not party to the proceedings,200 but are “participants” who can present their views and concerns under certain conditions, and whose participation is limited by the judge’s discretion.201 The legal basis for victim participation can be found under the RS and the Rules of Procedure and Evidence (RPE). Victims are always represented by their legal representative during proceedings and can participate as witnesses if they wish. Under Rule 85(a) of the RPE, in order to fall within the definition of victim, an individual needs to be able to show that he/she is a natural person and suffered harm as a result of the commission of a crime under the jurisdiction of the Court.202 There is no requirement to be directly affected by the crime in order to participate as a victim203 which allows for families and dependents of direct victims to fall within the definition of victim.204 A problem with the ICC’s approach is that the RPE provide only limited guidance on what exactly the right to participate entails.
In order to be able to participate, victims must apply for status as victims in the proceedings. Since the ICC is a criminal tribunal with the mandate to punish perpetrators, higher evidentiary standards are in place, in order to ensure fairness to the accused. To establish some necessary facts—such as the identity of the victim seeking participation—a higher standard of proof is in place due to the nature of the court.205 Transparency and accuracy is required in order to ensure a fair trial to the accused. Therefore, the application process for participating as victims in the proceedings can be burdensome due to the ‘individualized processing requirements’.206 In the prosecutor v Kony, Otti, Odhjambo & Ongwen—when deciding whether an applicant fulfils the criteria under Rule 85(a) RPE—the Appeals Chamber observed that while all judicial decisions are based on the evidence presented,207 determining what evidence is sufficient cannot be pre-determined. This means that acceptable evidence varies in every case, and all relevant circumstances should be considered,208 while there is still room for leniency if required by the circumstances. In the case of stateless persons, leniency is certainly required, especially regarding proof of identity.209
This is a similar challenge to that faced by the stateless in accessing redress at the IACtHR, with the main difference being that the threshold of proof is higher at the ICC due to the court’s nature. Since the emphasis of the application process is on eligibility to participate rather than the modes of participation, victims can become frustrated upon realizing that after having undertaken a painstaking application process, sometimes ‘there is little scope for their individual voices to be heard by the Court’.210 Case law of the ICC which has addressed the issue of proof of identity can be helpful in outlining potential challenges for access to redress before the ICC for stateless persons.
Reparations issued by the ICC can include restitution, compensation and rehabilitation,211 and it is within the judges’ power to establish the principles guiding reparations and the ‘scope and extent of any damage, loss, or injury’.212 According to Cryer et al., ‘it appears that this [establishment of principles] will occur on a case by case basis’.213 It should be noted that in the ICC, according to Shelton, ‘prosecution becomes recast as an essential component of the remedy owed victims of certain grave human rights violations’214 since measures such as compensation or disciplinary sanctions imposed on the perpetrator may be insufficient to redress the harm.215 Only upon conviction, a request for reparations by the victims can be issued,216 and can result in an order by the court to make reparations. However, article 75(1) RS allows the court to act proprio motu on the matter and issue an order reparation without a previous request.217
Furthermore, victims can apply to receive individual or collective reparations. Under article 75 RS and Rules 94–99 RPE, the ICC ‘has the power to order reparations directly to, or in respect of, victims’218 against an accused person. Under Article 75(1) RS, the Court must establish principles ‘relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’219 and can make the order against the convicted person. Rule 97(1) RPE implies that awards should be made on an individual basis; however, the court can decide whether to ‘order reparations on an individualized or on a collective basis’.220 The second option can fund projects targeted towards an entire community of victims, such as building a school or a hospital for example.221 Since access to reparations under the ICC is not dependent on participation in the proceedings,222 victims do not need to participate in order to benefit from reparations.223 This mechanism is ideal when there are many victims but limited funds, making collective reparations feasible and ideal since they can reach a great number of victims. For instance, in the Lubanga reparations ruling of 2015 only collective reparations were granted by the Appeals Chamber.224 While access to participation in the proceedings—a form of redress for some victims—can be challenging for stateless persons due to documentation issues. It seems accessing reparatory measures is less stringent upon documentation, and therefore there is room for easy access to reparations for stateless persons if in the future there is a case concerning stateless persons who have been victims of violations of the international crimes over which the court has jurisdiction.
Statelessness can be said to be both a violation of a right, and also a condition that is conductive to other violations of international legal norms (namely human rights), depending on the context. As it has been established, harm gives rise to an obligation to redress. The question of who is liable to redress this harm depends on the context in which the harm was done, and also depends on which mechanisms stateless individuals are able to access in order to seek redress. The nature of the redress they obtain also depends on the mechanisms they access, as well as on the nature of the violations they experienced and who caused said harm. Another important element to consider in establishing what kind of redress they may obtain is the nature of the mechanism, as there is a difference between judicial or non-judicial mechanisms. The decision by the Court on whether a wrongdoing took place or not (merits) will also be a determinant, in situations where the mechanism accessed is judicial in nature. The specific reparatory measures significantly depend on the context, and each mechanism has its own ways to determine which measures are suitable. The three mechanisms explored in section 4 showed the different forms of redress that can be attained by statelessness individuals. The UNCC, a non-judicial mechanism, for instance granted only compensation, while the IACtHR, a judicial mechanism, granted stateless individuals both monetary compensation and non-monetary forms of reparation.
Several conclusions can be drawn from this study regarding the challenges and opportunities faced by stateless persons in seeking redress for harm they experienced. The first is that for claims based on protection thought diplomatic channels, nationality will continue to be an important element in the case of internationally wrongful acts for as long as states continue to be the main actors.225 The “traditional approach” of diplomatic protection will likely continue to be a challenge for stateless individuals regarding the vindication of their rights under international law.226 However, as this study has shown, the rise of other international mechanisms capable of providing victims of internationally wrongful acts with redress almost completely counter this challenge. That is not to say that these mechanisms are free of challenges regarding access to redress. However, it can be concluded that they present a strong framework for ensuring all victims of internationally wrongful acts—particularly highly vulnerable groups like the stateless—can access redress. This is especially true, as this article has shown, because these mechanisms have ways to address the specific challenges that statelessness has posed or can potentially pose for future attempts by stateless persons to seek redress.
For instance, the precedent set by the UNCC clearly shows that challenges posed by lack of nationality can be overcome through special measures such as granting international organizations, or the state of habitual residence, the power to file claims on behalf of the stateless. This approach taken by the UNCC, where it turned a challenge into an opportunity, can serve as a basis for future mechanisms of a similar nature with the task of assisting stateless persons, among others. The examination of the IACtHR and ICC showed that access to international human rights courts and international criminal tribunals is not restricted by nationality or lack thereof. Even though issues regarding proof of identity as a result of lack of documentation initially posed a potential challenge, this article shows that these mechanisms227 are willing to make exceptions and be lenient depending on the circumstances. This was the approach taken by the IACtHR, which took into account the special situation of stateless persons and opted for a more lenient approach regarding identification, to guarantee access to redress. Regarding the ICC, it is true that the threshold is higher in a criminal court, but the analysis has shown that the ICC has mechanisms in place to overcome issues regarding identification in order to prevent individuals from being denied redress.
In conclusion, for the potential challenges faced by stateless persons in accessing redress to become opportunities, judicial or non-judicial fora need to interpret decisions, rules, and procedures taking into account the context and the situation of vulnerability statelessness can create for individuals. This also creates an opportunity for international law to continue evolving, beyond the role of states as primary actors. What cannot be doubted, is that for all wrongs to be effectively righted, it is essential for international mechanisms with powers to grant redress to ensure that all who have been harmed by an internationally wrongful act—including the world’s stateless individuals—can access appropriate redress.