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Pam 27-161-1

mand for this qualified vigilance is the only complement of the powers in their Commentary to the Geneva Civilian Convention
of the commander and of the discipline of the military hierarchy. 35 made the following observation:
(3) The British Government presented a claim to The principle of the responsibility of States implies an obligation on
the Anglo-American Tribunal established under the the Parties to the conflict to instruct their agents in their duties and their
rights. They must take the greatest pains to ensure that the State ser-
agreement of 1 9 10 for reimbursement for losses of per-
vices in contact with the protected persons are in actual fact capable of
sonal property by a British subject in Cuba when Ameri- applying the provisions of the Convention. In that respect, Article 29 is
can Forces, during the Spanish American War, burned similar to Article 1, which, as has been seen, bids the Contracting Par-
certain houses as a health measure. The British Govern- ties to respect and "ensure respect for" the Convention in all circum-
ment admitted that losses resulting from necessary war stances, and to Article 144,which stipulates that the text of the Con-
vention is to be disseminated as widely as possible both in time of peace
measures do not give rise to a legal right to compensation.
and in time of war.
However, they contended that this was not a war loss, as it The principle of State responsibility further demands that a State
was not a necessity of war but was rather a measure for whose agent has been guilty of an act in violation of the Convention
better securing the health and comfort of troops. The tri- should be required to make reparation. This already followed from Arti-
bunal dismissed the claim, stating: cle 3 of the Fourth Hague Convention of 1907respecting the Laws and
Customs of War on Land, which states that "a belligerent Party which
In law, an act of war is an act of defense or attack against the enemy, violates the provisions of the said Regulations (The Hague Regulations)
and a necessity of war is an act which is made necessary by the defense shall, if the case demands, be liable to pay compensation. It shall be
or attack and assumes the character of vis mqior. responsible for all acts committed by persons forming part of its armed
In the present case, the necessity of war was the occupation of forces."
Siboney, and th&kaupation, which is not criticized in any way by the ....
British Gove-snt, involved the necessity, according to the medical The term "agent" must be understood as embracing everyone who is
authorities above referred to, of taking the said sanitary measures. i.e., in the service of a Contracting Party, no matter in what way or in what
the destruction of the houses and their contents. capacity. It includes civil servants, judges, members of the armed forces,
In the opinion of this Tribunal, therefore, the destruction of Hard- members of para-military police organizations, etc., and so covers a
man's personal property was a necessity of war, and according to the wider circle than the defdtion in the Fourth Hague Convention, ac-
ptinciple accepted by the two Governments, it does not give rise to a cording to which the responsibility of the State could only be involved by
legal right of compensation. 36 "persons forming part of its armed forces."
(4) Before the Hague Convention of 1907 concern- . . ..
ing the laws and customs of war on land, the great ma- The nationality d the agents does not affect the issue. This is of par-
jority of cases held that the state was not responsible for ticular importance in occupied territories, as it means that the occupying
authorities are responsible for acts committed by their locally recruited
the wrongful acts of unofficered soldiers, whether incident agents of the nationality of the occupied country. The position is the
to a belligerent operation or merely wanton and same, regardless of whether an agent has disregarded the Convention's
unauthorized acts of robbery and pillage. Proof generally provisions on the orders or with the approval of his superiors, or has, on
has been required that the soldiers had acted under the the contrary, exceeded his powers and made use of his official standing
in order to carry out an unlawful act. In both instances, the State bears
command of officers. 37
responsibility internationally in accordance with the general principles of
(5) By Article 3 of the Hague Convention of 1907, law. 40
the state is made liable "for all acts committed by persons c. United States practice.
forming part of its armed forces." This abolished the (1) General. The United States has long followed
restriction of the former rule requiring that officers shall
the policy of making prompt settlement of meritorious
be in command of such wrong doing soldiers. 38
claims for damages caused by United States military per-
(6) Article 29 of the Geneva Convention Relative to
the Protection of Civilian Persons in Time of War sonnel. Three statutes implement this policy: the Federal
Tort Claims Act, 41 The Military Claims Act, 42 and the
(1949) 39 provides:
Foreign Claims Act. 43 Of these, the Foreign Claims Act
The Party of the conflict in whose lands protected persons may be is
responsible for the treatment accorded to them by its agents, irrespec- is of primary relevancy to this problem. Claimants under
tive of any individual responsibility which may be incurred. this statute must be inhabitants of a foreign country 44
who are friendly to the United States. 45 The claim must
(7) The International Committee of the Red Cross,
be in tort rather than in contract, 46 but the act complained
3s; The reader's attention is directed toward the interrelationship
of state responsibility and the Law of War aspects of "military necessity 40. Commentary, IV Geneva Convention Relative to the Protection
and command responsibility" discussed in FM 27-10,The Law of Land of Civilian Persons in Time of War 210 (Pictet ed. 1958). Reproduced
Warfare,chap. 1 5 I (1956). with the permission of the International Committee of the Red Cross.
36. Wiiam Hardman Claim (Great Britain v. United States) re- 41. 28 U.S.C. 1346(b).
ported in 5 G. Hackworth, supra, note 7 at 700.See also Juragua Iron 42. 10 U.S.C. 2733.
Company, Ltd. v. United States, 212 U.S. 297 (1909). 43. 10 U.S.C. 2734.
37. 5 Hackworth, supra, note 7 at 709. 44. A foreign state or its political subdivision may be a claimant. See
38. Harvard Research, The Law of Responsibility of States for 10 U.S.C. 2734(a).
Damage Done in Their Territory to the Person or Property of Foreigners, 45. An enemy alien, if found to be "friendly to the United States,"
23 Am. J. Int'l L. Spec. Supp. 167 (1929). can be a claimant. 10 U.S.C. 2734(b). DA Pam 27-162,Claims, 282
39. Geneva Convention Relative to the Protection of Civilian Persons (1961).
in Time of War [I9551 6 U.S.T. 3516,T.I.A.S. No. 3365. 46. Id. at 284.