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,1 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,3 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.1

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.

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.

'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 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.

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.2 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 v. Haiti, For. Rel. 1895, II, 811-813, id., 1898, 397-398, Moore, Dig., VI, 764. Compare Case of Lewis L. Etzel, 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.

accepted the responsibility of herself and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals had been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies.1 That State was thus obliged incidentally to undertake to make compensation for all damage done to the civilian population of the Allied and Associated Powers and to their property during the period of the belligerency of each as an Allied or Associated Power against Germany by such aggression by land, by sea and from the air, and in general all damage as defined in a particular Annex of the treaty.2 The amount of the damage was to be determined by an Inter-Allied Commission to be called the

1 Art. 251.

2 Art. 232. It was declared in Annex I (following Art. 244) that compensation might be claimed from Germany under Art. 232 in respect of the total damage under the following categories:

"(1) Damage to injured persons and to surviving dependents by personal injury to or death of civilians caused by acts of war, including bombardments or other attacks on land, on sea, or from the air, and all the direct consequences thereof, and of all operations of war by the two groups of belligerents wherever arising.

"(2) Damage caused by Germany or her allies to civilian victims of acts of cruelty, violence or maltreatment (including injuries to life or health as a consequence of imprisonment, deportation, internment or evacuation, or exposure at sea or of being forced to labour), wherever arising, and to the surviving dependents of such victims.

"(3) Damage caused by Germany or her allies in their own territory or in occupied or invaded territory to civilian victims of all acts injurious to health or capacity to work, or to honour, as well as to the surviving dependents of such victims.

"(4) Damage caused by any kind of maltreatment of prisoners of war.

"(5) As damage caused to the peoples of the Allied and Associated Powers, all pensions and compensation in the nature of pensions to naval and military victims of war (including members of the air force), whether mutilated, wounded, sick or invalided, and to the dependents of such victims, the amount due to the Allied and Associated Governments being calculated for each of them as being the capitalised cost of such pensions and compensation at the date of the coming into force of the present Treaty on the basis of the scales in force in France at such date.

"(6) The cost of assistance by the Governments of the Allied and Associated Powers to prisoners of war and to their families and dependents.

"(7) Allowances by the Governments of the Allied and Associated Powers to the families and dependents of mobilised persons or persons serving with the forces, the amount due to them for each calendar year in which hostilities occurred being calculated for each Government on the basis of the average scale for such payments in force in France during that year.

"(8) Damage caused to civilians by being forced by Germany or her allies to labour without just remuneration.

“(9) Damage in respect of all property wherever situated belonging to any of the Allied or Associated States or their nationals, with the exception of naval and military works or materials, which has been carried off, seized, injured or destroyed by the acts of Germany or her allies on land, on sea or from the air, or damage directly in consequence of hostilities or of any operations of war.

"(10) Damage in the form of levies, fines and other similar exactions imposed by Germany or her allies upon the civilian population."

THE GENERAL THEORY OF REPARATION

2

[§ 298 Reparation Commission, for the constitution and powers of which elaborate provision was made.1 The function of that body (which was not to be dissolved until all the amounts due from Germany and her allies, under the treaty or the decisions of the Commission, should have been discharged, and all sums received, or their equivalents, should have been distributed to the Powers interested) was not only to determine the amount of damage chargeable to Germany, but also to fix, according to the resources and capacity of that State, the time and form of payment. It was recognized that the resources of Germany were not adequate, after taking into account permanent diminutions which would result from certain provisions of the treaty, to furnish complete reparation for the loss and damage for which that State was burdened with responsibility. It was perceived that complete satisfaction of the obligation would necessarily consume much time, and require a degree of flexibility of treatment of the obligor which could best be applied through the instrumentality of the Commission. Upon that body were, therefore, conferred vast discretionary powers. It was declared also that the insufficiency of the resources of German territory rendered it imperative that the German Government should be called upon to exercise its functions to place within reach of the Allied and Associated Powers assets of various kinds outside of its domain and which that Government might assert the right to control and utilize for its own benefit.1

In establishing a plan of compensation for losses, it was insisted that Germany should make restitution of tangible things which had been seized when it was possible to identify them in territory belonging to Germany or her allies, and that without allowing

1 Art. 233. The provisions for the Reparation Commission referred to therein were set forth in Annex II (between Arts. 244 and 245). It may be noted that according to Section 10 of this Annex the Commission is to consider the claims and to give to the German Government a just opportunity to be heard, but not to take any part whatever in the decision of the Commission. A similar opportunity is to be afforded the allies of Germany, when the Commission considers that their interests are in question.

Paragraph 11 of the Annex declares that the Commission shall not be bound by any particular code or rules of law or by any particular rule of evidence or of procedure, but shall be guided by justice, equity and good faith. It is said that its decisions must follow the same principles and rules in all cases where they are applicable. It is, moreover, to establish rules relating to methods of proof of claims. It is empowered to act on any trustworthy modes of computation.

2 Arts. 233 and 234.

3 Art. 232.

4 See Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace (accompanying letter of M. Clemenceau, President of the Peace Conference, to Count Brockdorff-Rantzau, President of the German Delegation, June 16, 1919), Misc. No. 4, 1919 [Cmd. 258], pp. 32-36, 47-49.