On the Power of a State to Waive Reparation Claims Arising from War Crimes and Crimes against Humanity

Serious breaches of international law which a State commits against the civilian population or against the military personnel of another State in the course of an armed conflict certainly imply an obligation to repair the injuries inflicted. Nevertheless, after war it is common practice among States to conclude lump-sum agreements in order to settle the issue of reparations owed by one party to another. In most of these agreements, there are provisions in which a State waives any future reparation claims related to the injuries suffered during the armed conflict. Notwithstanding this practice, it might be of some interest to assess whether the State’s power to waive reparations is today subject to some limitation or whether it is a right which each State is freely entitled to exercise. Evolutionary trends in the law of State responsibility, in fact, seem to suggest the existence of some limitation to the State’s power to waive reparation claims arising from violations of peremptory norms. In particular, the International Law Commission’s (ILC) work on State responsibility encourages the idea that, in cases of jus cogens violations, the injured State cannot entirely dispose of the more general interest of the international community as a whole to find a just and appropriate settlement. This settlement, moreover, should take into account the interest of the victims. Limitations to the State’s power to waive reparation claims might also be inferred from the interpretation of a number of provisions of the Geneva Conventions of 1949. To these legal arguments, one could add more general policy reasons based on the importance of collective and non-economic forms of reparation.