Page 129 - Law of Peace, Volume ,

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It is believed to be a sound principle that, when misconduct on the fund of general principles relied on by states in pressing in-
part of persons concerned with the discharge of government functions, ternational claims arising from such operations are of little
whatever their precise status may be under domestic law, results in a value where posthostilities agreements form the basis of
failure of a nation to live up to its obligations under intemational law,
the delinquency on the part of such persons is a misfortune for which decisions or where the question of liability is likely to be
the nation must bear the responsibility. avoided by reciprocal waivers of claims by the states con-
. . .Under intemational law a nation has responsibility for the conduct cerned. 32 A line does appear to be drawn between claims
of judicial oficers. However, there are certain other broad principles arising from military operations incident to combat and
with respect to personal rights which appear applicable to the instant those not involving contact with an opposing militae
case. These principles a? recognized by the laws of Mexico, the laws of
the United States and under the laws of civilized countries generally, force. In the former category are included what may be
and also under international law. . . . Gross mistreatment in connection described as war losses.
with arrest and imprisonment is not tolerated, and it has been con- 6. War Losses. A nation is responsible for the acts of
demned by international tribunals. . . . For this tragic violation of per- the oflicers and men of its armed forces. Liability exten&
sonal rights secured by Mexican law and by international law, it is proper to personal injuries, deaths, thefts, wanton destruction of
to award an indemnity in favor of the claimants. 31
property, and requisitions. There is no liability for losses
The Way claim clearly demonstrates wrongful conduct by that, within the meaning of intemational law, are wai
states agents. Just as importantly, however, this decision losses, in the sense that they are incident to the proper
also reflects conduct that was attributable to the state it- conduct of military operations. I
self, a factor imperative to the espousal of a claim by a (1) Hague Convention No. IV Resmting the Laws
state on behalf of one of its citizens. Attention is called to and Customs of Land 33 provides in Articl~(3 as follows:
this fact as a preface to the consideration of the various ac- A belligerent party which violates the provisions o'F'[he said Regula-
tions that may be attributed to a state under international tions shall, if the case demands, be liable to pay comfknsation. It shall
law. be responsible for all acts committed by persons forming part of its
armed forces.
RESTATEMENT, SECOND, FOREIGN RELATIONS LAW
OF THE UNITED STATES (1965) (2) Max Huber, appointed pursuant to an agree?
5 169. General Rule as to Attribution ment of May 29, 1923, between Great Britain and Spain
Conduct of any organ or other agency of a state, or of any official, to examine and report on certain claims out of disturb-
employee, or other individual agent of the state or of such agency, ances in the Spanish Zone of Morocco, said in his report
that causes injury to an alien, is attributable to the state . . . if it is
(Oct. 23, 1924) : 34
within the actual or apparent authority, or within the scope of the
function, of such agency or individual agent. It seems that a rule generally well recognized exists: the state is not
Comment: responsible for damages caused by the military operations of its own
a. Staleagency, in general. The term "agency" as used in this Section troops. However, it is not possible to include in this rule every measure
includes the head of a state and any legislative, executive, administra- having a certain connection with military operations; neither is it possi-
tive or judicial organ, or other authority of the state. ble to include every act committed by soldiers. According to the thesis
b. Commercial enterprise. The term "agency" as used in this Section of the representative of His Catholic Mr\jesty, the evaluation of every act
includes any commercial enterprise owned by a state unless, under the not justified by military necessity would always and exclusively rest with
law of the state, such enterprise is a scparate legal entity to which the military chiefs, and in every case, national authorities.
state does not accord sovereign immunity in its own courts and for The Reporter cannot agree that the acts committed by troops or by
which it does not claim the immunity of a foreign state in the courts of isolated soldiers could in no case involve the international responsibility
other states. . . . of the state. Article 3of the Convention of October 18,1907,relating to
c. Individual agent. The term "individual agent" as used in this Sec- the laws of war on land established the principle of such responsibility
tion includes any official, employee, member of the armed forces, or precisely in the most important contingency. Doubtless this Convention
other individual employed by or authorized to act on behalf of the state is not directly applicable to any of the facts with which this report must
or any agency of the state. . . . be concerned, but the principle which it establishes merits beiig re-
tained equally in the event of military action outside of war, properly
8 170. Conduct of LoePl Authorities speaking. This beiig admitted, it must be remembered, on the other
If conduct of an agency or agent of a political unit that is included in a hand, that the rule to which the above-mentioned clause relates gives a
state causes injury to an alien, such conduct is attributable to the state large place to military necessity. The determination of this necessity
to the same extent as conduct of an agency or agent of the state. . . . must be left in large measure to the persons themselves who are called
Comment: upon to act in mcult situations, as well as to their military chief. A
a. Federal State. Conduct of local authorities is attributable to the nonmilitary jurisdiction, and above all, an intemational jurisdiction
central govenunent of a state without regard to the nature of the state's could only intervene in this field in case of manifest abuse of this
constitution. Although component units of a federal state have certain freedom of judgment. This having been said, it must equally be recog-
attributes of sovereignty for domestic purposes, and may, as in the case nized that the state must be considered as obliged to exercise vigilance
of the United States, be known as "states," they are not treated assepa- of a superior order in order to prevent crimes committed in violation of
rate states under international law. . . .
military discipline and law by persons belonging to the army. The de-
7-10. Responsibility of a State for Acts of Its Military
32. W.Bishop, International Law: Cases and Materials 696 (1962
Forces. a. General. Military operations offer the largest 4.). On the general subject of state responsibility for the acts of their
single factual phenomenon productive of injury to persons forces see Freeman, Responsibili@ of States for Unlawful Acts of Their
or property. Yet, customary international law and the Armed Forces, [I9551Receuil Des Cours 267-401.
33. 36 Stat. 2277,T.S. No. 539.
31. Id. at 97. 34. 5 G.Hackworth, supra, note 7 at 699.