Page 132 - Law of Peace, Volume ,

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Such suit need only be terminated by the claimant if he ac- reason is that the nonpunishment must be deemed to disclose some
cepts the ex gratia payment in full satisfaction of his claim. kind of approval of what has occurred, especially so if the Government
Investigation of incidents and claims is conducted by has permitted the guilty parties to escape or has remitted the punish-
ment by granting either pardon or amnesty.
authorities of the receiving State, with the sending State
A reasoning based on presumed complicity may have some sound
cooperating by furnishing evidence from sending State foundation in cases of nonprevention where a Government knows of an
sources. intended injurious crime, might have averted it, but for some reason
7-11. Failure to Protect Aliens and to Apprehend and constituting its liability did not do so. The present case is different; it is
Prosecute Those Who Wrongfully Inflict Injury on one of nomepression. Nobody contends either that the Mexican
Government might have prevented the murder of Janes, or that it acted
Aliens. a. Failure to protect. In the William E. Chapman
in any other form of connivance with the murderer. The international
Claim, 56 a claim was made by the United States on behalf delinquency in this case is one of its own specific type, separate from the
of William Chapman, who was shot and seriously private delinquency of the culprit. The culprit is liable for having killed
wounded at Puerto Mexico, Mexico. At the time of the or murdered an American national; the Government is liable for not
shooting, Chapman was serving in Puerto Mexico as Con- having measured up to its duty of diligently prosecuting and properly
punishing the offender.
sul of the United States. The Claim was predicated on
allegations that the Mexican authorities failed to provide c. An often cited example of a governmental failure to
proper protection to the claimant, even though he had ap- protect or apprehend and punish is an incident that oc-
prised them of a threat made on his life, and subsequently curred in 1918. In that year, the U.S.S. Monocacy, while
failed to take the proper steps to apprehend and punish the lawfully navigating the Yangtze River, was fired upon.
person who did the shooting. In awarding compensation One seaman was killed, and two others were wounded. I.
to Mr. Chapman, the Commission issued these com- an instruction addressed to the Legation at Peking, the
ments: U.S. Department of State maintained:
This Commission and other international tribunals have often given Official reports that this deplorable incident was the result of a state of
application to the general principles invoked in the instant case that a lawlessness which the Chinese Government, though well aware of its
government is required to take appropriate steps to prevent injuries to existence, took no action to abate; that these casualties were attributable
aliens and to employ prompt and effective measures to apprehend and to the inactivity and apparent indifference of the responsible authorities
punish offenders who have committed such injuries. The Commission of the Chinese Government; and that no adequate or effective steps
has also considered the subject of the special protection due to a consul- have been taken to punish the perpetrators of the outrage. In view of the
ar officer. . . . Citation is made by the American Agency to statements obligation of the Chinese government to accord protection to American
found in numerous works on international law and in diplomatic corre- citizens engaged in lawful pursuits in China and of the failure of the
spondence to the effect that consular officials are entitled to special pro- Chinese authorities to adopt measures calculated to avert incidents such
tection. . . . Of course a request for protection k a a of threatened as the attack on the U.S.S. Monocacy and to adequately punish the
danger may be appropriate in any case involving the safety of an alien guilty parties, and considering that the victims of the attack were Ameri-
having no official status, and compliance with such a request will be can citizens employed in the naval service of the United States, and that
prompted by the desire of authorities of a government to take notice O'Brien was the support of a dependent wife and two children, the
with a view to avoiding any just grounds for complaint by the govern- Department deems it appropriate to ask an indemnity. . . .59
ment to which the alien belongs. . . . In a note of March 1 4, 1 9 1 9, the Chinese Vice Minister of
Writers on international law have repeatedly [however] stated that
consular officers are entitled, to use the language of Phillimore, to a Foreign Affairs accepted the proposed settlement "as just
"more special protection of international law than uncommissioned in- and acceptable in every particular." 60 In speaking to this
dividuals." 57 specific substantive basis for an intemational claim,
Restatement, Second, 4 183 provides:
6. Failure to apprehend and prosecute. In the Laura B.
Janes Claim 58 it was alleged that claimant's husband was A state is responsible under international law for injury to the person
or property of an alien caused by conduct that is not itself attributable to
shot and killed in view of many witnesses. It was further
the state, if
alleged that the Mexican authorities did not take the (a) the conduct is either (i) criminal under the law of the state, (i)
proper steps to apprehend and punish the assailant. In generally recognized as criminal under the laws of states that have
finding that, based on all available evidence, the efforts of resonably developed legal systems, or (i) an offense against public
the Mexican authorities were inefficient and dilatory, the order, and
(b) either (i) the injury results from the failure of the state to take
Commission asserted:
reasonable measures to prevent the conduct causing the injury, or (ii)
. . . At times intemational awards have held that, if a State shows the state fails to take reasonable steps to detect, prosecute, and impose
serious lack of diligence in apprehending and punishing culprits, its an appropriate penalty on the person or persons'responsible for the con-
liability is a derivative liability, assuming the character of some kind of duct if it falls within clause (a) (i).
complicity with the perpetrator himself and rendering the State responsi-
ble for the very consequences of the individual's misdemeanor. . . . The 7-12. Denial of Procedural Justice. a. DeBnition. As in
other areas of state responsibility, considerable controver-
56. William E. Chapman Claim (United States v. Mexico), United sy has been generated by the shifting meaning of the con-
States and Mexico General Claims Commission, [1930-311 Opinions of cept, "denial ofjustice." It is frequently said that a state is
Commissioners 121, 4 U.N.R.I.A.A. 632. responsible under international law for a "denial of
57. Id. at 127.
58. Laura B. Janes Claim (United States v. Mexico), United S@es
and Mexico General Claims Commission, 1926, [I9271 Opinions of 59. 5 G. Hackworth, supra, note 7 at 655-66.
Commissioners 108, 4 U.N.R.I.A.A. 82. 60. Id.