Journal of Military Ethics (2004) 3(2): 178
/180

CASE STUDY

The Varvarin Case: Excerpts of

the Judgment of the Civil Court
of Bonn of 10 December 2003,
Case No. 1 O 361/02
Translated by Noëlle Quénivet and Danja Blöcher
Institute for International Law of Peace and Armed Conflict, Ruhr-University of Bochum, NA 02/
33, 44870 Bochum, Germany.
Tel: /49 234 3227366, Fax: /49 234 3214208, E-mails: noelle.quenivet@rub.de/
danja.bloecher@rub.de

The basic problem affecting humanitarian law today remains that of its
implementation. As of now, requests made by individuals before national
courts to assess the compatibility of certain acts with international
humanitarian law failed. The present case study and commentaries focus
on the decision of a German civil court sitting Bonn to deny the victims of
a NATO air raid the right to sue Germany and claim compensation for
alleged violations of international humanitarian law.
KEYWORDS: implementation of international humanitarian law, individuals as subjects of
international law, human rights law, NATO intervention in Kosovo, national jurisdiction,
compensation, State responsibility.

[. . .]
Reasons of the judgment:

The claim is admissible, however unfounded.

I.
German courts have jurisdiction over a claim regarding an alleged violation by a
German official. The rationae loci competence of the regional court of Bonn results
from the referral decision of the regional court of Berlin as well as from paragraph
18 ZPO.

ª 2004 Taylor & Francis DOI: 10.1080/15027570410006101

 The Varvarin Case 179

II.
The claim is however unfounded.

The plaintiffs are not entitled to request from the defendant compensation for
damages or compensation for the pain and suffering.

There [is] no legal basis [. . .] in international law or [. . .] regarding the claims

brought forward by the plaintiffs.

Therefore, there is no need to examine the law on the facts. Further, it remains open
whether and to what extent the pleading of the plaintiffs establishes a violation of
the principles of international humanitarian law by the defendant as well as a duty
to compensation.

1.
The plaintiffs cannot claim compensation for damages or compensation for the pain
and suffering from the defendant on the basis of a breach of international law.
Such a claim results neither directly from international law nor indirectly in
connection with Article 25 of the German Fundamental Law.

(a) There are no international law norms granting the plaintiffs as individuals a
right to obtain compensation for damages or compensation for pain and suffering
that they can enforce against the defendant regarding the consequences of the
NATO attack of 30 May 1999. The complaint already fails on this point.
The traditional conception of international law as an inter-State law does not
regard individuals as subjects of international law, but grants them only indirect
international protection. Claims concerning violations of international law com-
mitted against foreign citizens cannot be lodged by the individual himself but only
by his State of nationality. The State exercises its own right via diplomatic
protection. International law must be respected in the person of its citizens.
Individuals are only linked to international law as a ‘medium’ of the State, without
being themselves considered as subjects of international law (see Constitutional
Court, Decision of 13 May 1996, AZ: 2 BvL 33/93, printed in BVerfGE 94, 315, 334
as well as in NJW 1996, 2717 f.; Ipsen, Völkerrecht, 4th edition, para. 7, p. 80f.).
This intermediation by the State on behalf of individuals exists as a matter of
principle. Individuals can therefore neither request the determination of a violation
nor compensation for this violation.
However the intermediation by a State on behalf of individuals has changed
following the codification of international human rights law. To the extent that
States can create such international law norms, they can, through these norms,
confer upon individuals certain rights and obligations and, thereby
/ partially
related to the content of the respective norm as well as to the States involved in the
individual cases
/ extend the subjectivity of international law to individuals. If the
States provide individuals with an international law mechanism, which stems from
the system of protection created by the treaty, that allows them to enforce directly
the rights conferred to them against a State, then individuals are endowed with a
genuine right in international law (see Constitutional Court, op. cit .). Otherwise the
treaty norm is only a bare entitlement of the individual, which results from the State
180 Noëlle Quénivet and Danja Blöcher

having rights and duties towards individuals but, which do not provide individuals
with an enforceable right (see , e.g., Ipsen, op. cit .).
An important change in the ‘intermediation system’ is the Convention for the
Protection of Human Rights and Fundamental Freedoms. This Convention expressly
confers upon individuals various rights, in particular the right to life (article 2
ECHR), provides individuals with an enforceable right to claim compensation for
certain violations (article 5(5) ECHR) and, in addition, grants in article 34 ECHR
individuals the opportunity to bring a claim before the European Court of Human
Rights. In the given case, the plaintiffs cannot invoke this convention because they
were not under the jurisdiction of the defendant as spelled out in article 1 ECHR (see
also the judgement of the ECtHR of 12 December 2001, EuGRZ 2002, 133). This is
also the position of the plaintiffs.
There is no comparable rule of international law as that provided in human
rights treaties that grants individuals an enforceable right to claim compensation
for damages and compensation for pain and suffering against another State for the
consequences of an armed conflict as in the given case. A treaty system that
provides the plaintiffs with such individual rights and enforcement mechanisms is
lacking.
The provisions of the Hague Convention respecting the Laws and Customs of
War on Land of 18 October 1907 (Hague Convention) only ‘apply [. . .] between the
contracting Powers’ (article 2 of Hague Convention). Article 3 of the Hague
Convention only provides an obligation for the belligerent parties to compensate
(another belligerent party) (see also BGH, Judgement of 26 June 2003, AZ: III ZR
245/98, ‘Distomo’).
According to article 1 of the Geneva Convention of 12 August 1949 Relative
to the Protection of Civilian Persons in Time of War (GCIV), which was invoked
by the plaintiffs, States commit themselves to respect and ensure respect. The
same holds true concerning Additional Protocol I to the Geneva Conventions of
12 August 1949 and Relating to the Protection of Victims of International Armed
Conflicts, which supplements the Geneva Convention on the protection of war
victims (article 1(3)). According to article 1(1) only the High Contracting Parties
commit themselves to respect and ensure respect, individuals only ‘enjoy protection’
(article 51) but are not granted individual rights. Further, the norms regulating
State liability mentioned in article 91 are not relevant for the individual. Besides,
neither the Geneva Convention nor the Additional Protocol provide individuals with
enforcement mechanisms.

[. . .]