Full text: Responsibility of states for damage caused in their territory to the person or property of foreigners

from a wrongful act or omission of the revolutionists committed at any 
time after the inception of the revolution.’’! 
(d) If the damages have not been caused by the insurgents, but by 
government officers or agents in their efforts to quell the insurrection, the 
general rule is that the State is not responsible, although this is subject to 
certain conditions and exceptions. The havoc of war is considered to be an 
inexorable calamity. It is in this case that the doctrine of zis major is 
fully applicable. Among the opinions stated in the replies of the govern- 
ments to the inquiry of the Preparatory Committee, one of them is unique, 
and that is the view of the Government of Switzerland to the effect 
that damage caused by the armed forces of the Government in the suppres- 
sion of revolts are the consequence of measures adopted by the authorities 
for the public welfare, but that it would be only the just duty of the com- 
munity to indemnify private persons for the actual damage sustained by 
them in the course of the operations. This duty would not cover indirect 
damage, because this would be impractical. This view is worthy of careful 
consideration as regards the duty of the community towards all of its mem- 
bers irrespective of their nationality. This could be further amplified to 
cover all damages resulting from war, within a reasonable limit acceptable to 
the States, and provided that this would cover the enforcement of a principle 
of social welfare for the benefit of all inhabitants without discrimination. 
However, the difficulties of a provision of this nature in an international 
convention, could not very well be disregarded. The fact remains that, with 
the exception of destruction and injuries caused to persons or property 
in the course of military operations and especially in battle, all the acts that 
imply an enrichment of the State, such as requisitions, among others, are of 
course subject to the obligation to allow due compensation. 
(e) Upon drafting a formula to cover responsibility in respect of 
damage caused under these circumstances, the danger and inconvenience en- 
tailed by the use of misleading terms should be constantly borne in mind. 
The reply of the Government of Great Britain to the inquiry in question sets 
forth that the State is not responsible for damage unintentionally inflicted 
by the authorities or the armed forces during the course of the suppression: 
“Compensation must be paid for the property of a foreigner appropriated 
or intentionally destroyed in the course of such operations, but not for 
property destroyed or injured unintentionally.” This formula could not be 
more misleading. The elements of will or intention as regards the causing 
of the damage have no application in this case. The commander of an army 
may have a manufacturing plant in which the rebels are barricaded in- 
tentionally destroyed. The act, however, would be a genuine military opera- 
* Harvard Law School--Research in International Law.

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