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PRIVATE PECUNIARY CLAIMS ARISING OUT OF WAR*

Any attempt to discuss the international responsibility of the State for injuries sustained by private individuals in time of war immediately encounters the difficulty of establishing any definite rules in the practice of awarding indemnities or compensation for private losses arising out of war. Nevertheless, an examination of the subject in the light of precedent and principle may not be without some useful results.

In a general way, this responsibility of the State may be measured by the State's obligation as a belligerent or a neutral to observe the rules of international law and of war. As it is obviously, however, beyond present possibilities to undertake a detailed review of these ruleswhich indeed have been ably treated in numerous works on the subjectthe discussion here will be confined to the more important classes of cases in which pecuniary claims have been or are likely to be brought for injuries sustained by individuals or private property in time of war.1

At the outset it may be observed that in the progress of time private rights during war have gained greater and greater recognition, coincident with the narrowing of the sphere of belligerent rights, the imposition of more stringent rules for the conduct of war, and the enlargement (until very recently) of the rights of neutral commerce. It is in the matter of injuries sustained by private persons during war that Rousseau's somewhat inexact doctrine that war is a relation of State to State and not of man to man has found perhaps its greatest field for application, for both in international and municipal law there has been a marked and growing tendency to relieve individuals and their property from the losses incident to war and to cast the burden upon the State. While this modern principle of State indemnity is to a large extent a matter of municipal

*This article constitutes in substance a chapter from the author's forthcoming book, The Diplomatic Protection of Citizens Abroad, to be published by the Banks Law Publishing Co., New York, with whose permission the article is printed, and by whom all rights are reserved.

1 The awards of arbitral commissions and the practice of the United States have been used as principal sources.

law and national policy and equity only, international law has endeavored in many directions to preserve the immunity of private rights from the destructive effects of war. Nevertheless, while the conduct of warfare has in increasing degree been brought within definite rules, private property rights in war necessarily can not be safeguarded so minutely or be affected with the fine distinctions incident to civil affairs. A margin of uncertainty is hardly separable from a sphere of rights in which so much depends on military necessity.

THEORY OF COMPENSATION FOR WAR LOSSES

Before discussing the particular phases of war claims, it seems desirable to take up briefly the general question of compensation for individual war losses. In former times, no rules existed for pecuniary indemnity to individuals for war damages. In the matter of the State's duty to indemnify its own subjects, Vattel appears to have been the first to draw a distinction between the different kinds of war losses. He distinguished, first, those caused by the enemy, for which no indemnity was due; and, secondly, those caused by the State itself. The latter he sub-divided into two classes: first, losses caused by the voluntary and deliberate action of the army by way of precaution or strategy; and, secondly, inevitable accidents of war caused either by stress of circumstances or without premeditation. For losses coming within the last subdivision, the State incurred no strict obligation, although, if its finances allowed, it was equitably proper to compensate individuals. For losses within the first subdivision, it was bound to give indemnities at the close of the war.2 This distinction between acts done voluntarily in preparation for war, and injuries inevitable or inflicted only by imperious military necessity has been followed by France and the French courts 3 from the period beginning with the French Revolution, and the principle of State indemnity has thus found its way into modern practice. Attention will

Vattel, Chitty-Ingraham ed., sec. 232, p. 402; Bentwich, N., Private Property in War, London, 1907, 41-42; H. Rep. 386, 22nd Cong., 1st sess., pp. 9-10; Lawrence's Report on Claims against Governments, H. Rep. 134, 43rd Cong., 2nd sess., 126; Nys (1912 ed.), III, ch. XI, 450–462.

Brémond in article "Actes de gouvernement," 5 Rev. Dr. Pub. (1896), 69, 227. As to Italian law to the same effect see H. Rep. 134, 43rd Cong., 2nd sess., 129, 135

be called hereafter to a number of special occasions on which large voluntary indemnities have been granted by various States to inhabitants sustaining war losses.

The matter of exacting pecuniary indemnity on behalf of injured private individuals from belligerent or neutral States violating the laws of war is of comparatively recent origin. The rule of indemnity was developed by international commissions and domestic boards as the only practical sanction for a violation of those private rights which international and municipal law have expressly sought to safeguard. At the Second Hague Conference, it was for the first time definitely provided (Art. 3 of Convention IV): first, that a belligerent in land warfare who violates the provisions of the Hague Regulations, shall, if the case demand, be liable to make compensation; and secondly, that he shall be responsible for all acts committed by persons forming part of his armed forces. It is probable that the first rule extends to all violations of the laws of war besides those included in the Hague Regulations. Whether the second rule will serve hereafter to make the State liable for the wanton or unauthorized acts of unofficered soldiers, for which, under an almost uniform practice, the State has heretofore been held not to be responsible, is a grave question.

A STATE OF WAR

The measure of private rights in war and the extent to which they are subject to belligerent rights depends on the existence of a state of war, and not on a declaration of war or a recognition of belligerency. The indicia of a state of war may be said to be an armed contest between two States or parts of the same State conducted by regularly organized military bodies and having an avowed political object in view. War may exist where no battle has been or is being fought, as well as when war

5

'Oppenheim, 2nd ed., II, 319-321, 300. One of the best discussions of Art. 3 of Convention IV is to be found in a small work by Cuno Hofer, Der Schadenersatz im Landkriegsrecht, Tübingen, 1913. 91 p.

The Institute of International Law at its Oxford meeting of 1913, proposed to extend the principle of indemnity to naval warfare. Additional Article to Rules adopted, 15 Rev. Dr. Int. (1913), 677.

'Ex parte Milligan, 4 Wall. 127, 140. Upon the question whether war exists, the courts must follow the political departments of the Government. Gray v. U. S., 21

has not been declared nor belligerency recognized. War, then, is a fact, and the rights and duties of individuals, as well as the exercise of belligerent rights by enemy governments or by parties to a civil war result from the fact of belligerency alone. Thus, while the Cuban insurgents were never granted belligerent rights, the Spanish Treaty Claims Commission nevertheless held that war existed in a material, if not in an international, sense, thereby granting to Spain and to the insurgents the right to exercise belligerent rights and immunity for such injuries to private persons and property as the laws of war permit.8 The determination that no legal state of war existed between the United States and France between 1798 and 1800 was vital to the decision of the Court of Claims in the French Spoliation claims."

It is equally necessary to determine when belligerent rights end. This is usually, though not always, fixed at the date of a treaty of peace, but in fact a treaty is not in effect until ratified and proclaimed, and belligerent rights have often been exercised (1) between the date of signing and ratification, and (2) in the case of military forces in distant colonies, after the date of ratification. If the armistice which is usually provided for in the first case is broken, or if in the second case belligerent rights are exercised after knowledge of the cessation of the war by the military commanders, liability would seem to attach to the offending government. 10

Ct. Cl. 340; Cushing v. U. S., 22 Ct. Cl. 1. See also G. G. Phillimore in V. 4 U. S. Journ. of the Soc. of Comp. Leg. (1902), 128-134.

The Prize Cases, 2 Black, 636, 670; Teresa Jeorg v. U. S., Spanish Treaty Cl. Com., Briefs, V. 2, pp. 80, 81.

1 Hall, 31 and note. Prats (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2886, 2888. 8 Span. Treaty Cl. Com. Special Rep. of W. E. Fuller, 1907, 22. Sen. Doc. 308, 59th Cong., 1st sess. 26.

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Gray v. U. S., 21 Ct. Cl. 340; Cushing v. U. S., 22 Ct. Cl. 1. The French Spoliation Claims, by Geo. A. King, Sen. Doc. 964, 62nd Cong., 3rd sess., 9.

10 Oppenheim, 329. Hall, 6th ed., 555. The decisions of arbitral and other courts, however, leave this question in much uncertainty. John (U. S.) v. Gt. Brit., Feb. 8, 1853, Moore's Arb. 3793 (Government held liable for capture made after signing of treaty of peace, on ground of failure to notify the cessation of hostilities promptly). See also the John, 2 Dodson, 336 and the Mentor, 1 Rob. 183. The Japanese Government ordered the release of "all ships and their cargoes captured after Sept. 5, 1905" (the date of the treaty of peace with Russia). Imperial Ordinance No. 228, November, 1905. But see case of the Swineherd, captured by a French privateer after knowledge (though not official notification) of cessation of war. She

It is often important to determine, on the military occupation of a town or larger area, when belligerent rights merge into the more limited rights of a military occupant.11

In the case of maritime capture the question has occasionally been raised whether neutral vessels captured before the treaty of peace, can be tried or condemned in a prize court after the conclusion of peace. Inasmuch as title in the captured vessel or cargo does not pass until actual condemnation, there is some ground for the view that a prize, captured but not yet condemned when peace is concluded, must be released. While the matter must still be regarded as a moot question, the weight of authority, supported by the celebrated Doelwyk decision of the Italian Prize Commission, 12 favors the view that the neutral prize may be tried after peace is concluded.13 Whether the prize may be condemned and confiscated is more doubtful. While some eminent authorities maintain that condemnation after peace is lawful, inasmuch as it is a punishment for an unlawful act committed before the peace, 14 the Italian court in the Doelwyk case decreed the restoration of the vessel on the ground that condemnation and confiscation after peace is unlawful.

POSITION OF ALIENS IN HOSTILE TERRITORY

Without entering into a discussion of the general position of aliens in time of war, it is necessary to examine the principal burdens which individuals in hostile territory must bear. A long course of practice and The Hague Regulations have given some authority to certain rules for the treatment of alien enemies in the country of the territorial sovereign. But even a departure from these rules, which has occurred in several was condemned by a French prize court. Hall, 556 criticizes the decision. See also Phillimore III, sec. 521. See also cases of Torres (Mexico) v. U. S., July 4, 1868, Moore's Arb. 3798; Ayama, ibid. 3804; Serrano, ibid. 3805 (where a claim was allowed); and Revilla, ibid. 3805.

11 Meng (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3689. Gumbes v. An award of the commissioners for liquidating the claims of British subjects on France (1834), 2 Knapp P. C. Rep. 369.

12 Martens, Recueil, 2nd series, V. 28, 66-90.

13 Oppenheim, II, sec. 436.

14 Ibid.; Liszt, 5th ed., 374; Gareis, 2nd ed., 258; Brusa in 4 R. G. D. I. P. (1897), 157-175, criticizing the Doelwyk decision; decision of Japanese Prize Court in Antiope case, MS. Dept. of State.

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