58
RESPONSIBILITY OF STATES
maintains that the success of the insurgent party and its assumption of the
government, do not affect the responsibility of the State. Czechoslovakia
states:
“The State is not responsible for damages caused by insurrection,
however, if the claimant State and the State against which the claim
is brought both recognize the insurgents as belligerents.
“The question whether a revolutionary Government is responsible
for damage caused during a civil war to the person or property of
foreigners where the insurgents gain power is not yet ripe for settlement,
and it seems unlikely that any general formula found for it would secure
unanimous acceptance. The reply to this question, above all, would de-
pend on the circumstances of the case, more particularly on whether the
acts which caused the damage could be attributed to the new Government
or to its agents.”’?
These are neither isolated opinions nor do they lack proper grounds.
The opinion based upon the success of the insurgents could be termed the
doctrine of success. Victory, which has become a fact, would control the
juridical relations. The fiction of the national will, which is presumed to
lie with the successful side, may be used to explain the advantage of hold-
ing responsible the new revolutionary government that comes into power;
but it does not attribute any juridical character to such advantage.2 The
acts involving responsibility and committed during the revolution are due
to the fault of those who committed them. If fault exists, responsibility
follows. It would not then seem correct to state that the Government is
responsible for damage caused by the insurgents “if the insurrection is suc-
cessful and the insurgent party has assumed power”. The formula of the
Harvard Research Committee is preferable:
“In the event of a successful revolution, the state whose government
is established thereby is responsible if an injury to an alien has resulted
1 Ibid.
® Professor Podesta Costa, of the Argentine, maintains this view in his work
entitled “Ensayo sobre las Luchas Civiles y el Derecho International” (Essay on Civil
Wars and International Law). The following is quoted therefrom: “As regards
specific injurious acts, there is no foundation for the view that the accidental and
extraneous fact of final victory of the insurgent party should alter the juridical ques-
tion arising between the State and the injured alien on account of the commission of
such acts by members of the insurgent party . .. if the hypothesis should be accepted
a posteriors that the national will is with the successful party from the inception of
the revolution, it should also be concluded that, at the beginning of every civil war, the
responsibility of the State for injurious acts will be involved, either in connection with
the acts attributable to the constituted Government, or in connection with those at-
tributable to the insurgent party, depending upon which of the two should
be finally victorious; and if this conclusion is established, when the insurgent party is
finally successful, the State would have to be relieved from all responsibility for the
acts attributable to the former constituted Government”