Compensating Victims of the Crimes of War

We are reminded by a distinguished former judge of the High Court of Calcutta, that it is a timeless axiom of justice without which social life is unthinkable, that a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed. [1]

There can be no doubt that wrongs on a massive scale have been committed in Southeast Asia and that as a general rule large numbers of innocent persons have been the victims. As a result of the exigencies created by modern warfare, the United Nations has recently been exploring the measure of compensation which should be paid to victims of “war crimes” and “crimes against humanity.” [2] At present some human rights conventions include provisions which call for compensation for such lesser violations as unlawful arrest and detention [3] or miscarriage of justice. [4] Under ordinary principles of tort law those who engage in illegal or wrongful conduct must compensate the injured parties. Yet, as far as the victims of war crimes of crimes against humanity are concerned, “the timeless axiom of justice” that the individuals who have been wronged are entitled to an appropriate form and measure of redress has been largely ignored.

Present practice permits considerable public attention to be attracted to all charges of violent crime and to the drama involved in the trial and punishment of the accused. But the needs of the victim are frequently ignored. Experience has shown that criminal sanctions, particularly if deemed inadequate, offer little solace and no assistance to the survivors. If justice is to be done a more constructive alternative must be found. The payment of pecuniary damages by the offender is possible but not practicable. If the offender acted as the apparent agent of his government and with no malice of his own, it ought to be the duty of the State to redress the injury inflicted. It is suggested, therefore, that an organized program to compensate those who have been the victims of war crimes or crimes against humanity is worthy of serious consideration.

I. The Inadequacy Of Penal Sanctions

Ever since the Nuremberg trials it has been widely accepted as a principle of international law that the individual committing crimes against peace, war crimes, or crimes against humanity should be held criminally responsible, even if he acted under superior orders or was a Head of State. The crime against peace, which was an innovative codification of principles embodied in the Kellogg-Briand Pact and other international agreements, was defined as that

Preparation, initiation, or waging of a war of aggression, of a war in violation of international treaties, agreements or assurances. . . .

War crimes are generally held to be violations of the laws or customs of war. Such violations shall include but not be limited to murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder or public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. [5]

There was nothing novel about the prohibition of certain enumerated acts which had been declared unlawful in Red Cross and Hague Conventions and which had been proscribed by the national law of most civilized states.

Although the underlying concept was old, the title of “crimes against humanity” was something new, for “Laws of Humanity” and “dictates of the public conscience” had long been the subject of international consideration. Acts which ordinarily would have been considered war crimes acquired a new characterization if they were inhumane acts committed against a civilian population for political, racial or religious reasons and if they constituted large and systematic actions which were cloaked with official authority. By their dimension and brutality the collective conscience of mankind was shocked and such acts became international offenses which were now codified under a new caption. [6] Thus, the Nuremberg proceedings set down the three categories and the broad headings under which an individual might be prosecuted—at least in legal theory—for offenses committed in Southeast Asia.

Viewed realistically, these penal principles so firmly enunciated at Nuremberg and ratified in the halls of the United Nations have had very limited application since. It has become almost the anticipated allegation made by combatants that only their opponents are guilty of aggression and crimes against humanity. Not surprisingly, no one has been charged in a court of law with the commission of such offenses since 1945.

It is the unfortunate, if not absurd, truth that for nearly half a century nations have been unable to agree on what they mean by aggression, [7] and even if it could be defined, no court exists to try “the gravest of all crimes throughout the world.” [8] It is the latest consensus view of the Special United Nations Committee to Define Aggression that only the Security Council should have authority to decide who is the aggressor. In a political arena with veto powers a judicial determination is, under present circumstances, hardly to be expected. It appears most unlikely in the foreseeable future that States will voluntarily accept the jurisdiction of any international court over problems affecting major national interests. [9] Moreover, the United States Supreme Court, as presently constituted, will not even listen to arguments that the United States is embarked on a war of aggression, since the conduct of foreign affairs is viewed as a non-justiciable Presidential or Congressional prerogative. [10]

As far as war crimes are concerned, the situation is a little, but not much, better. In 1955, the Supreme Court held that those who had left the military service could not be charged with crimes committee while in uniform. [11] Under the Geneva Conventions of 1949 our government was legally obliged to enact legislation to bring to trial all persons who had committed “grave breaches” of the Convention, including willful killing or inhuman treatment of prisoners of war and civilians and the wanton destruction of property not justified by military necessity. Yet for over 17 years no step was taken to close the ex-serviceman’s escape-hatch to immunity. [12]

In the face of such publicly disclosed tragedies as the My Lai massacre, a certain number of trials by courts-martial against those soldiers or officers directly responsible for shooting helpless and innocent civilians was un avoidable. The military accusing one of its own of dereliction is surely a painful process. When the offense may have been stimulated by the Army’s own failure to stress adequately humanitarian considerations, it is particularly embarrassing.

Where the crimes are committed during a counter-insurgency action in which non-combatants and the enemy are often indistinguishable, the dilemmas facing the combat soldier evoke the sympathy not only of large segments of the public but also of the Commander in Chief. A comprehensive program of war crimes trials by an impartial court or by victors over vanquished is obviously is obviously not on the horizon.

The mere fact that some war crimes trials were conducted by the United States against American soldiers during a period of “war” is a rare phenomenon in a world which periodically seethes with armed conflict. However, the manner in which the trials were conducted, as well as their outcome, demonstrates that the military may not be relied upon to accuse and try itself. [13] Only a dozen men were ever charged with responsibility for the My Lai massacre, and all save one, Lt. William Calley, were found to have done no wrong.

Surely no one will pretend that no other war crimes have been committed in Southeast Asia. Yet apparently no further criminal trials are contemplated. We have forgotten what was learned at Leipzig after World War I when the Germans in trying their own war criminals produced only six convictions out of 896 accused. [14] We have forgotten that after World War II we espoused the theory that the principles of international penal law apply to foe and friend alike. In the final analysis, we are reminded of the last words of Justice Robert H. Jackson as he closed the Nuremberg prosecution in the name of the United States:

If you were to say of these men that they are not guilty, it would be as true to say there has been no war, there are no slain, there has been no crime. [15]

The military conviction of a single officer in a single case can only dramatize how ineffective has been the attempt to impart a feeling of vindication or justice through the conduct of military trials. In the absence of any effective criminal sanctions it is all the more important that a meaningful civil remedy be sought. Let us examine the rights of the victims as we consider the obligations of the perpetrators of the crimes.

II. Civil Responsibility For Compensation

A. Responsibility of the Individual Offender

Where a soldier has been convicted by a military court of having committed war crimes and that conviction is no longer subject to review, he will have been found guilty beyond a reasonable doubt of having deliberately committed the wrongful acts. The conviction will have established that his deeds were not acts of legitimate military necessity but were in fact illegal and contrary to the established rules of war. Under ordinary principles of civil law he should be obliged to make compensation for property losses, personal injuries and loss of life.

The case would be the same if a superior officer were found to have failed negligently to exercise sufficient control over his troops to have prevented the occurrence of the offense, [16] or to have been negligent in the indoctrination and training of troops which were placed in a position where the commission of crimes reasonable could have been foreseen. It is the business and function of commanding officers to maintain a level of discipline and control over their armed forces adequate to restrain the power, the propensity, and the opportunity to commit unlawful acts. If the superior’s neglect gave rise to the injury, there would be no substantial distinction between his negligence and the deliberate commission of the wrongful act in imposing civil liability for damages.

The matter would be more difficult where there was no prior conviction by a military court, for in those cases the plaintiff would have to prove in the civil action that the defendant was personally responsible for the commission of the illegal act of the omission on individual soldier committing illegal acts under battlefield conditions has proved overwhelming when attempted by the Army itself. For the victim to obtain such evidence would almost certainly prove impossible. The unfortunate victims are often too terrorized, too uninformed or too powerless to even consider requesting the reparations to which they would be both legally and mortally entitled.

Even if the facts of unlawful or negligent conduct could be established, the plaintiff would still face a host of problems. He would have to obtain jurisdiction over the defendant, [17] set forth specifically the alleged wrongful conduct, prove the extent of damages, [18] and be able to collect on whatever judgment might be issued. There would surely be a public outcry against holding a solider financially responsible for action taken in the belief, however badly mistaken, that he was serving his country. This public sentiment would be reinforced by the feeling that he had already paid his debt if there had been a conviction and sentence. It could be anticipated that in most cases of war crimes the offender would be financially unable to satisfy the judgments rendered against him to compensate the victims. [19] Most often, the injured party would be left between the difficult predicament either of not being able to prove his case or of not being able to collect his award.

An action for $400 million brought against Lt. Calley, Secretary of Defense Laird, and Secretary of the Army Resor on behalf of the Unified Buddhist Congregation of Vietnam, purporting to represent the My Lai massacre survivors, was promptly dismissed by the United States District Court in Georgia. The decision was based on the plaintiff’s lack of capacity to sue, failure to state a complaint and expiration of the two-year statute of limitations. [20] If justice is not to be defeated by the denial of real redress to the wronged individual who has a justified claim, an alternate basis of liability must be sought.

B. Responsibility of the State for Acts of Its Officers

The responsibility of States for damages caused to aliens has been the subject of intensive study by the International Law Commission [21] and was dealt with extensively in a Draft Convention prepared at Harvard University under the direction of Professors Sohn and Baxter. [22] There is a long tradition in the US of insisting, as a matter of law as well as equity, that a State is responsible for the acts of its officer done within the apparent scope of their authority. [23]

The theories under which the State is held responsible have varied. [24] In some cases the officer is viewed as the agent of his government, and liability attaches under ordinary principles of agency law. In other cases liability is based on the State’s negligence in either failing to prevent the offense or in a denial of justice by failing to find, try, and adequately punish the parties directly culpable. The dereliction is viewed as an omission for which the State is itself responsible. Therefore, the State would be deemed to have transgressed a provision of international law as the State’s duties, and the government’s negligence in not punishing the criminal has denied the offended party the opportunity of subjecting the wrongdoer to a civil suit.

The Geneva Conventions of 1949 require the US to enact any legislation necessary to provide effective penal sanctions against persons committing any grave breaches of the Convention, and to bring such persons, regardless of their nationality, before its own courts or to hand them over to trial by another High Contracting Party. It has been pointed out by Alfred P. Rubin that we have failed to live up to this international penal obligation. [25] If we also fail to live up to our civil obligations to indemnify the victim, we should not be surprised if our government is viewed as having condoned the offense or as having exercised actual or tacit complicity in the crimes.

The Hague Convention IV of 1907 provided that a belligerent who violated the regulations would be liable to make compensation. Article 3 prescribed responsibility “for all acts committed by persons forming part of its armed forces.” [26] The US has regularly confirmed the principles of State liability and demanded compensation from foreign governments for wrongs committed by their officers against US nationals. [27] The US has also paid compensation when the wrongdoer was an officer of the US. A particularly apposite case involved a 2nd lieutenant Gulley, and American officer who in 1919 was on guard at the Mexican Border. He shot at a raft in the Rio Grande intending only to frighten the occupants whom he believed to be engaged in illegal activities. One of the shots killed a Mexican girl. The action of the Lieutenant was an error of judgment for which he was convicted by courts martial and discharged. He was restored to duty by the President of the US. The Mexican-American Claims Commission required the US to pay compensation to the parents of the slain girl. [28] If the US had to pay for the unintentional killing by Lt. Gulley, should it not also be responsible for the intentional killing by Lt. Calley?

Many years ago M. Henry Frimageot, the distinguished French member of the Permanent Court of International Justice, enunciated the general rule that a Government is responsible for errors in judgment of its officials purporting to act within the scope of their duties. [29] No one has claimed that Lt. Calley, or his like, as callous as may have been their deeds, were acting with a malice of their own. American servicemen, who may have committed war crimes, whether recklessly, carelessly, or in direct contravention of their orders, were nevertheless purporting to act within the scope of their duties as soldiers. It is the legal and moral obligation of the government in whose name and on whose behalf the deeds were committed to see to it that the victims of the crimes receive just compensation for the injuries unlawfully inflicted upon them.

III. A Suggested Program Of Constructive Action

The extent of US involvement in “war crimes” or “crimes against humanity” is a hotly debated subject, often influenced by the participants’ emotional reaction to the war itself. Although it is certain that war crimes have also been committed by the other combatants, it is only the US which has sought to restrain such illegal deeds by the trial and public condemnation of at least a few of the offenders. The US Government should, therefore, continues to assert its moral leadership by not making its adherence to international law and precedent dependent or conditional on the similar action by any other State.

A. Defining the Perimeter of Criminal or Civil Liability

There has been considerable debate and disagreement about what actions in Southeast Asia might be considered sufficiently criminal to give rise to an obligation to indemnify the civilian victims. The range of possible offenses covers a wide spectrum. At one end there are such clear war crime as the deliberate killing of helpless civilians at My Lai and similar atrocities. Here both the criminal and the civil and liabilities are beyond dispute. At the other extreme, however, are such difficult questions as the legality of the war itself, and whether the intervention in North Vietnam, Laos and Cambodia were aggressive acts constituting “crimes against peace,” or whether they were lawful acts of legitimate self-defense and retaliation. In the absence of all of the records on all sides it is not likely that these questions will be authoritatively resolved in the near future. It is more productive therefore to deal with the areas where some agreement may be possible.

The problems which have evoked the most heated public debate among qualified observers have related to the legality of “free-fire zones”, “search and destroy” operations, destruction of undefended areas by artillery or bombing, the use of chemical defoliants, the resettlement of villages, and the detention of civilians as well as the methods of interrogating prisoners. [30] The UN has long been concerned with increasing respect for human rights during periods of armed conflict. [31] The International Committee of the Red Cross has convened an inter-governmental conference to improve the rules of warfare in an attempt to make them more reflective of the needs of our times. [32] But since States continue to be concerned primarily with protecting their own legal and political positions it is not likely that there will be any early clarification which will end the debate about the legality of various actions in Vietnam.

The Bar Association of the City of New York, assisted by a panel of very distinguished American jurists, recently proposed that a commission, including leaders of the Bar, the Congress, the public and the armed forces, be appointed to investigate and report on the observance of the laws of war in Indochina. [33] Particular attention would be paid to the type of problems indicated above. If our government would agree to the establishment of such a commission it could also have as one of its responsibilities the obligation to set forth those areas in which the United States would be willing to assume financial responsibility for war-related damages. This could be done without necessarily acknowledging any criminal responsibility for violating any of the present laws of war. The commission could define the parameters within which the US would be prepared to make compensation on either legal or humanitarian grounds.

B. Legislation for Individual Compensation

Once the principles of liability have been accepted, it will be necessary to draw up the precise statute or rules and regulations which will govern the payment of compensation. These would set forth the classes of persons which would be eligible for payment, the categories of damage for which compensation would be paid—personal, property or economic losses, the elements of proof required—after taking into account what may reasonably be demanded. The measure of compensation for the different types of loss, and the procedure for disposing of the claims as well as for the review of decisions reached.

What can be done to help is not as difficult as it may seem. History has never recorded crimes of the magnitude committed by the Hitler regime of Nazi Germany. [34] Yet after World War II, an enormous program was instituted for providing restitution and indemnification to surviving victims of that holocaust. [35] In addition to the return of hundreds of thousands of properties and businesses, [36] the Federal Republic of Germany provided individual compensation to over three million victims of persecution. Over $10 billion have been paid in indemnities for loss of life, loss of profession, false imprisonment, permanent damage to health and various economic deprivations. [37] ruin, the payment of compensation to millions of victims of that war was accompanied without any noticeable hardship to the average German citizen. The wise German leaders, such as Chancellor Konrad Adenauer, considered restitution to Nazi victims to be an essential moral prerequisite for Germany’s readmission to the family of civilized nations. The US assisted, encouraged and applauded the German action. Is it not time for the US to begin to follow its example?

C. The Administrative Machinery to Settle the Claims

Where claims are asserted against the Government itself it would be preferable to have the adjudication done by some impartial body. A neutral international court, such as the International Court of Justice, would be the ideal body to supervise the disposition of the claims. To comply with the Statute of the Court [38] the case for the claimant could, as is customary I international law, be presented by his own government acting on his behalf. It would enhance the image of international law if the US would accept the jurisdiction of the under-utilized [39] World Court in the matter.

If the US should be reluctant to surrender its sovereignty to the Court in connection with war claims, perhaps it might consider allowing the International Committee of the Red Cross to deal with such claims on humanitarian grounds. This is what was done by the Federal Republic of Germany in connection with the claims of Nazi medical experiments who resided in countries with which Germany had no diplomatic relations and which were, therefore, denied compensation under the general German indemnification laws. [40] The German action was largely in response to American public pressure. [41]

Resort can always be had to Mixed Claims Commissions, which have frequently been employed to settle claims of foreign nationals. Presumably these would be composed of all, or at least some, of the States parties to the conflict and claims could be adjudicated by nationals of all participants or neutral States. Such Commissions and arbitral tribunals have worked effectively in the past without any major problems. [42] There is also the precedent of the Philippine War Damage Commission, concerned primarily with rehabilitation, [43] and of the existing Foreign Claims Settlement Commission of the US, which adjudicates claims of American nationals for various types of war losses. [44] Probably the easiest way to handle the claims would be accomplished through bilateral agreements with the other States involved. The US would pay a fixed sum of money which the receiving State would then distribute among its nationals pursuant to agreed criteria and possibly under the supervision or control of the US. [45] Payment would be either by a lump sum or in installments. A wide variety of precedents and patterns are available. The administrative machinery to do the job can readily be created. All that is needed is the will to act.

D. Reparations to Supplement Individual Indemnification

Compensation on the basis of individual claims may be replaced or preferably supplemented by other forms of reparation. In many cases it may be impossible to identify the individual victims of conduct which the US is prepared to indemnify. [46] Where whole areas have been defoliated or destroyed, where the ecology of a region has been seriously disrupted, or where all the inhabitants of villages have been dislocated by flight or relocation, it may be possible to provide funds to help rebuild or replace what was destroyed. The construction of hospitals, homes, schools, orphanages, or the provision of food, supplies, or technical assistance may all be suitable forms of reparation. The local government can undertake the reconstruction or distribution subject to sufficient controls to assure that the objectives of the rehabilitation are achieved. President Nixon recently indicated that the US would be prepared to consider substantial grants to the countries in Southeast Asia as part of a reconstruction program. [47] His proposal was consistent not only with the traditional post-war reconstruction practice of the US but also with our apparent legal obligations. Whatever else, it tended to re-emphasize the feasibility of the concept of compensating the victims or armed conflicts as proposed in this article.

IV. Conclusion

Professor Hyde once wrote: Control breeds responsibility. A State must be deemed to be internationally responsible for the consequences of internationally illegal conduct within any area over which it in fact asserts control in time of peace of war. [48]

The US should acknowledge its responsibility for wrongful conduct of its officers and start to plan and prepare the measures which will be required to compensate the victims of war crimes in Southeast Asia. Voluntary committees of American have already begun to take humanitarian action to aid the war-injured Vietnamese children and others. [49] Where our government cannot accept legal responsibility it should act on the basis of humanitarian commitment. The American government has an opportunity and an obligation which will help bind up the wounds both here and abroad. It should begin to act now.