CERTAIN HAZARDS OF WAR

[§ 295 Courts of arbitration have emphasized the broad scope of the hazards encountered by neutral aliens residing in or having property in the territory of a belligerent, and which sustained injury in the course of hostilities. A few may be noted. Houses may catch fire from buildings destroyed by shells, or may be deliberately burned when affording cover to the enemy; 3 walls and pavements may be torn up in the course of a siege, and crops ruined by cavalry passing over them in a battle or while approaching the scene of conflict. In numerous other ways devastation may be the natural result of hostilities. Such occurrences do not necessarily imply that international law has been violated by the territorial sovereign, or that the neutral owners of property so injured or destroyed are entitled to compensation from it on account of their losses.

4

With respect to persons and property of neutrals within territory of the enemy of the belligerent whose operations result in injury or destruction, the individual claimants find themselves subject to the familiar rule that they and their property may be fairly regarded as, respectively, enemy persons and enemy property by the State whose acts were productive of the loss sustained.7 arising from the plundering of a brig wrecked on the Irish coast, Hansard Parliamentary Debates, CXI, 717-719, Moore, Dig., VI, 887.

1 See Upton Case, American-Venezuelan Commission, 1903, Ralston's Report, 172; Bembelista Case, Netherlands-Venezuelan Commission, 1903, id., 900; Volkmar Case, American-Venezuelan Commission, 1903, id., 258.

Declared Mr. Fish, Secy. of State, to Mr. Washburne, Minister to France, April 28, 1871: "The Court of Claims, adopting the language of my predecessor, Mr. Seward, has decided it to be the law and usage of nations that one who takes up his residence in a foreign place and there suffers an injury to his property by reason of belligerent acts committed against that place by another foreign nation, must abide the chances of the country in which he chooses to reside; and his only chance, if any, is against the government of that country, in which his own sovereign will not interest himself. Such has been the doctrine and practice of the United States and of the great powers of Europe, and this Government, therefore, cannot intervene in behalf of Mr. Fougen, or of any citizen of the United States, under the same circumstances." For. Rel. 1871, 335, Moore, Dig., VI, 888.

2 Donaldsonville Cases, French-American Commission, Convention of Jan. 15, 1880, Moore, Arbitrations, IV, 3689, 3697; see, also, Bercier Case, before same Commission, id., 3706; Cleworth Case, British-American Claims Commission, Convention of May 8, 1871, id., 3675.

3 Jardel Case, French-American Commission, Convention of Jan. 15, 1880, Moore, Arbitrations, IV, 3699.

+ Blumenkron Case before Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, IV, 3669.

5

Cole Case, Mexican-American Claims Commission, Convention of July 4, 1868, Moore, Arbitrations, IV, 3670. See, also, Hale's Report of the Work of the American-British Claims Commission, treaty of May 8, 1871, id., 3678. 6 Wilson Case, Spanish Claims Commission, agreement of Feb. 12, 1871, Moore, Arbitrations, IV, 3674; see, also, Giles Case, French-American Commission, Convention of Jan. 15, 1880, id., 3703.

7 Mr. Seward, Secy. of State, to Count Wydenbruck, Austrian Minister,

It may here be noted that the courts of the United States have applied the same rule in the treatment of the claims of American citizens having property in the limits of the Confederate States during the Civil War,' and in Cuba during the war between the United States and Spain in 1898.2

It is believed that, in general, the equities of the neutral claimant whose property suffers injury or destruction in the course of military operations, through the acts of the territorial sovereign, are likely to be stronger than where complaint is made of the acts of the enemy of that sovereign and incidental to attacks upon its territory. In the former situation, the circumstances of the particular case may be such as to establish a just demand for compensation even when the act of injury or destruction is in no sense unlawful.

(3)

The Relation of the Belligerent Sovereign to Certain Acts Giving
Rise to Complaint
(a)

§ 296. Acts of Soldiers.

While illegal acts, wanton or otherwise, which are attributable to a belligerent may justify a demand for redress in behalf of neuNov. 16, 1865, MS. Notes to Austrian Legation, VII, 193, Moore, Dig., VI, 885; Mr. Fish, Secy. of State, to Mr. Washburne, Minister to France, No. 272, April 28, 1871, For. Rel. 1871, 335, Moore, Dig., VI, 888; Same to Sir E. Thornton, British Minister at Washington, May 16, 1873, MS. Notes to Great Britain, XVI, 101, Moore, Dig., VI, 890.

"Foreign Offices and municipal and international courts have frequently laid down the rule that neutral property permanently situated in enemy territory, or property of neutrals who voluntarily enter or continue to reside in belligerent territory assumes the risks of injury incident to war." E. M. Borchard, Diplomatic Protection, § 101. See, also, Gallego, Messa & Co. v. United States, 43 Ct. Cl. 444.

See, also, Brief of Messrs. Strobel and Cruz, in behalf of the Respondent in Case of C. D. Blodgett, No. 14, United States and Chilean Claims Commission, under convention of May 24, 1897, reviving convention of Aug. 7, 1892; award in Matter of William Hardman, Claim No. 2, June 18, 1913, American and British Pecuniary Claims Arbitration, convention of 1910, Am. J., VII, 879, 881, where it was declared that " 'notwithstanding the principle generally recognized in international law that necessary acts of war do not imply the belligerent's legal obligation to compensate, there is, nevertheless, a certain humanitary conduct generally followed by nations to compensate the private war losses as a matter purely of grace and favor, when in their own judgment they feel able to do so, and when the sufferer appears to be specially worthy of interest."

See Schoenrich's Report of Nicaraguan Mixed Claims Commission, under Nicaraguan laws of 1911, p. 61, announcing as Rule 1 adopted by the Commission that "The Government is not responsible for damages suffered during a battle, or as a direct consequence of military operations.'

1 See, for example, Mrs. Alexander's Cotton, 2 Wall. 404, 419; Brandon v. United States, 46 Ct. Cl. 559.

2 Juragua Iron Co., Ltd. v. United States, 212 U. S. 297, 307; Herrera v. United States, 222 U. S. 558, 569.

14

ACTS OF SOLDIERS

[§ 296 tral victims, difficulty may arise in determining whether the relation of the actors to the belligerent was such as to fasten responsibility upon it. Courts of arbitration have frequently declared that the liability of a belligerent on account of the conduct of its soldiers is dependent upon whether their acts were committed in the presence or with the consent of officers,' as otherwise, according to Mr. Ralston, "no such relation of agency existed as would make a government liable."2 Thus, in certain adjudicated cases the fact that soldiers were unaccompanied by officers, or that the latter although aware of the commission of unlawful acts by their subordinates, were unable to enforce discipline, served to shield the belligerent sovereign from responsibility.4

Mr. Bayard, Secretary of State, declared in 1885, that the mere fact that an act might be committed without orders from superiors in command was indecisive of the question of liability." He stated

1 See, for example, Webster Case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 3004; Dunbar & Belknap Case before same Commission, id., 2998; Standish Case, before same Commission, id., 3004; statement by Mr. Moore, as to various cases before same Commission, id., 2996-2997; Jeannaud Case, French-American Commission, Convention of Jan. 15, 1880, id., 3000; Terry & Angus Case, Mexican Claims Commission, Act of Congress, March 3, 1849, id., 2993; Roberts Case, American-Venezuelan Commission, 1903, Ralston's Report, 142. See, also, Claim of Bernard Campbell against Haiti, For. Rel. 1895, II, 811-813, Moore, Dig., VI, 764; case of ill treatment of D. A. Backer by Haitian soldiers, For. Rel. 1907, II, 742-744; Brief of Messrs. Strobel and Cruz, in behalf of Respondent, in Case of C. D. Blodgett, No. 14, United States and Chilean Claims Commission under Convention of May 24, 1897, p. 12 and following.

2 Ralston's Arbitral Procedure, 284.

3 Declares Mr. Moore: "In numerous cases before the Commission under the Convention between the United States and Mexico of July 4, 1868, it was held by Sir Edward Thornton, as umpire, that the government was not liable for the acts of individual soldiers or of bodies of stragglers or marauding soldiers not under the command of an officer." Moore, Arbitrations, III, 29962997. Among the instances cited are the Trippler Case, Moore, Arbitrations, 2997, and the Culberson Case, id., 2997. See, also, Buentello Case before same Commission, id., 3670; Michel Case before same Commission, id., 3670; Vesseron Case before same Commission, id., 2975; Foster Case, Spanish Claims Commission, agreement of Feb. 12, 1871; Henriquez Case, Netherlands-Venezuelan Commission, 1903, Ralston's Report, 910. In Ralston, Arbitral Procedure, 286, are cited the Edgerton Case, Reclamaciones Presentadas al Tribunal Anglo-Chileno, I, 126; also Bacigalupi Case before Chilean-American Claims Commission of 1897, No. 42.

Antrey Case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, IV, 3672; see, also, Weil Case before same Commission, id., 3671; Dresch Case, before same Commission, id., 3669.

5 Communication to Mr. Buck, Minister to Peru, No. 33, Oct. 27, 1885, For. Rel. 1885, 625, Moore, Dig., VI, 758; Same to Same, Aug. 24, 1886, MS. Inst. Peru, XVII, 231, Moore, Dig., VI, 758.

Compare Mr. Magoon, law officer, division of insular affairs, Feb. 6, 1901, Magoon's Reports, 338, Moore, Dig., VI, 758; also opinion of Gen. Davis, Judge-Advocate-General, U. S. A., and comments thereon by the French Ambassador and the Solicitor to the Department of State, concerning claim of Messrs. Laurent & Lambert v. The United States, for losses sustained during the Spanish-American War, For. Rel. 1907, I, 393–398.

that a government might be responsible for the misconduct of soldiers in the field, or when acting, either constructively or actually under its authority, if their acts, although forbidden by the goverment, were in contravention of the rules of civilized warfare. If by this statement he appeared to enlarge the acknowledged scope of national responsibility, he limited it by the declaration that a State was not responsible for the "collateral misconduct of individual soldiers dictated by private malice." It may be doubted whether in practice such a limitation could be generally relied upon without qualification.

1

The circumstance that officers, though aware of the commission of unlawful acts by enlisted men, were powerless to enforce discipline, has at times been regarded as affording an excuse for the excesses of their troops.2

Article III of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, after announcing that a belligerent party violating the provisions of the Regulations annexed to the Convention should, if the case so demanded, be liable to pay compensation, declared that such a belligerent should be "responsible for all acts committed by persons forming part of its armed forces."3 Tested by this provision, the commission of any acts prohibited by the Regulations, such, for example, as the pillaging of a place taken by assault, would establish the liability of the belligerent, and that irrespective of the inability of an officer to enforce discipline, or of his ignorance or prohibition of the acts committed. Although such be deemed to be the extent of the obligation imposed upon the United States or any other power as a belligerent, it may be doubted whether national responsibility for the wrongful acts committed by soldiers in time of peace In this connection see, also, Case of the Castelains, French-American Claims Commission, Convention of June 15, 1880, Moore, Arbitrations, III, 2999.

2 Thornton, Umpire in Vesseron Case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, III, 2975; and in Antrey Case, before same Commission, id., IV, 3672.

3 Malloy's Treaties, II, 2278; Scott, Hague Peace Conferences, II, 371. 4 Art. XXVIII.

5 Higgins, Hague Peace Conferences, 260; Holland, Laws of War on Land, 19. See, also, extract from Halleck, Int. Law, San Francisco, 1861, Sec. 22, p. 442, quoted in Moore, Dig., VI, 918. The same passage is contained in Sir G. Sherston Baker's 3 ed. of same work, London, 1908, II, 36-37.

The decision, in some of the earlier cases, such as that of Sir Edward Thornton in the Cooper Case, Mexican-American Commission, under Convention of July 4, 1868, Moore, Arbitrations, IV, 4039, or of Commissioner Wadsworth, in the Friery Case, before same Commission, id., 4036, where no indemnity was allowed for pillaging by soldiers, was doubtless due to the belief that at that time, such acts were to be counted among the ordinary hazards of war assumed by aliens resident in belligerent territory.

THE GENERAL THEORY OF REPARATION [§ 298

1

would be measured by the same test. It is probable that the obligation to make reparation for acts committed in such a season would be regarded as dependent upon the circumstance that the soldier was, at the time of his misconduct, engaged in the performance of his duties, and also, that his superior officers failed to use the means at their disposal to prevent what occurred or to discipline the offender.

(b)

§ 297. Acts of Private Individuals and Bandits.

2

A consequence of a state of war, and especially of the operations of belligerent forces, is the opportunity afforded individuals and bands of marauders unattached to any public service to perpetrate lawless acts upon defenseless persons. For such acts the responsibility of a belligerent power would appear to depend upon its failure to make diligent use of the means at its disposal to deter misconduct or to punish offenders. Unless neglectful in this regard, it would be difficult to establish a legal obligation to make redress; for the actors could not be regarded as in any sense agents of the belligerent within whose domain they operated. While a belligerent must on principle exercise the same measure of diligence within any area under its control that is required, in times of peace, of a territorial sovereign, the engrossing and burdensome problem which oftentimes engages a military commander during the period when the bandit does his work doubtless has a bearing on the reasonableness of the steps taken to prevent or suppress.

(4)

War Claims against Germany under the Treaty of Versailles

(a)

§ 298. The General Theory of Reparation.

”.

By the terms of the treaty of peace of June 28, 1919, Germany

1 Mr. Hay, Secy. of State, to Mr. Hunter, Minister to Honduras, March 20, 1900, concerning the Case of Frank Pears, For. Rel. 1900, 685-689, also id., 674-702, Moore, Dig., VI, 762-764. See, also, claim of Bernard Campbell Haiti, For. Rel. 1895, II, 811-813, id., 1898, 397-398, Moore, Dig., VI, 764. Compare Case of Lewis L. Étzel, For. Rel. 1904, 168-176, Moore, Dig., VI, 765. See, also, case of firing by Dominican officials in 1893 upon the schooner Henry Crosby, by mistake, For. Rel. 1895, I, 215-234, especially Mr. Uhl, Acting Secy. of State, to Messrs. Goodrich, Deady & Goodrich, April 10, 1894, id., 229, Moore, Dig., VI, 760; also case of assault on American seamen in the course of a street brawl, at Santa Catharina, in 1894, For. Rel. 1895, I, 52-59, Moore, Dig., VI, 760.

2 Buentello Case, Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, IV, 3670.