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Commentary of 1987 
[p.1053] Article 91 -- Responsibility

3645 Article 91 literally reproduces Article 3 of the Hague Convention Concerning the Laws and Customs of War on Land of 1907, and does not abrogate it in any way, which means that it continues to be customary law for all nations. It was the result of a proposal presented at the fourth session of the Conference, (1) and was accepted by consensus both in the Committee and in plenary meeting. (2)

3646 When this article was adopted in The Hague it was presented there as constituting a necessary sanction to the Regulations Concerning the Laws and Customs of War on Land. It was felt that governments would undoubtedly give their armed forces the necessary instructions, as they are obliged to, but that this would not be sufficient to avoid all violations. Such a provision, which is indeed justified, corresponded to the general principles of law on international [p.1054] responsibility. Moreover, any recourse by wronged persons to the law was considered illusory if this could not be exercised against the government of the perpetrators of these violations, through their own government. (3)

3647 The practice of States has fallen far short of these laudable intentions. In fact, there has always been a tendency for the victors to demand compensation from the vanquished, without reciprocity and without making any distinction between the damages and losses resulting from lawful or unlawful acts of war. (4)

3648 It was undoubtedly for this reason that the Diplomatic Conference of 1949 inserted an article common to the four Conventions (First Convention, Article 51 ; Second Convention, Article 52 ; Third Convention, Article 131 ; fourth Convention, Article 148 ) entitled "Responsibilities of the Contracting Parties", which reads as follows:

"No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article."

3649 In fact this is the same principle as that contained in the present Article 91 and in Article 3 of Hague Convention IV of 1907. The purpose of this provision is specifically to prevent the vanquished from being compelled in an armistice agreement or peace treaty to renounce all compensation due for breaches committed by persons in the service of the victor. (5)

3650 However, it is true that these days the problem of the responsibility of States for acts of war does not only arise on the basis of respect for ' jus in bello. ' It also arises on the basis of ' jus ad bellum, ' which was not yet the case in practical terms at the time of the first World War. A State which resorts to war in violation of the principle of Article 2, paragraph 4, of the United Nations Charter may be held responsible for all damages caused by such a war, (6) and not only for those resulting from unlawful acts committed in the sense of ' jus in bello. ' The International Law Commission has stated that "every internationally wrong act of a State entails that State's international responsibility". (7) In this context it is therefore not the [p.1055] vanquished Party which is bound to make reparation for war damage, but the Party which resorted to force unlawfully, to the exclusion of the Party which merely exercised its right of self-defence. However, this aspect of the problem should remain separate from that of violations committed during the course of the conflict itself, which may have been committed by any one of the Parties involved. The main merit of the present Article 91 is to affirm this, as the above-mentioned article common to the four Conventions had also done.

3651 On the conclusion of a peace treaty, the Parties can in principle deal with the problems relating to war damage in general and those relating to the responsibility for starting the war, as they see fit. (8) On the other hand, they are not free to forego the prosecution of war criminals, nor to deny compensation to which the victims of violations of the rules of the Conventions and the Protocol are entitled.

First sentence -- The obligation to compensate

3652 The obligation applies to all Parties to the conflict, but obviously only if violations have been committed. Thus no distinction is made between the victor and the vanquished, nor between a Party which is presumed to have resorted to force unlawfully and a Party which is believed only to have exercised its right of self-defence. Anyway, the Preamble confirms this interpretation when it affirms that the provisions of the Conventions and the Protocol must be fully applied in all circumstances to all persons who are protected by those instruments (i.e., also to the possible victims of violations) without any adverse distinction based on the nature or origin of the armed conflict, or on the causes espoused by or attributed to the Parties to the conflict. Thus there is an obligation which belongs exclusively to ' jus in bello. '

3653 What is meant by compensation? The normal usage of the term refers to the award made to make reparation for a wrong. The French version uses the word "indemnité". (9) In fact the treaties concluded at the end of the first and Second World Wars used the term "reparations". These took many different forms, but their purpose was different from that of Article 91 , as we have seen.

3654 This obligation corresponds to an uncontested principle of international law which has been reaffirmed by the Permanent Court of International Justice many times:

[p.1056] "It is a principle of international law and even a general conception of law, that any breach of an engagement involves an obligation to make reparation [...] Reparation is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself." (10)

3655 The text declares that such compensation is due only "if the case demands". It is not sufficient for a violation simply to have been committed. For the obligation to make reparation to exist, there must also be a loss or damage (11) which in most cases will be of a material or personal nature. Moreover, compensation will be due only if restitution in kind (12) or the restoration of the situation existing before the violation, are not possible. Such compensation is usually expressed in the form of a sum of money which must correspond either to the value of the object for which restitution is not possible, (13) or to an indemnification which is proportional to the loss suffered. (14) If the compensation is assessed in terms of material goods and not in money, it may never consist of cultural property. (15) Compensation may also be awarded in the form of services, but it is absolutely clear that retaining prisoners of war after active hostilities have ceased, for the purpose of contributing to reconstruction work in the country of the Detaining Power as war reparations, would violate the Third Convention (Article 118 ). (16) No agreement between the Parties to the conflict permits any derogation on this point from the right of prisoners of war to be repatriated without delay after the cessation of active hostilities.

3656 Those entitled to compensation will normally be Parties to the conflict or their nationals, though in exceptional cases they may also be neutral countries, in the case of violation of the rules on neutrality or of unlawful conduct with respect to neutral nationals in the territory of a Party to the conflict. (17)

3657 Apart from exceptional cases, (18) persons with a foreign nationality who have been wronged by the unlawful conduct of a Party to the conflict should address [p.1057] themselves to their own government, which will submit their complaints to the Party or Parties which committed the violation. However, since 1945 a tendency has emerged to recognize the exercise of rights by individuals.

3658 Joint or collective responsibility, for example, in cases of coalition, cannot be excluded.

3659 The scope of this provision is limited to violations of the Conventions and the Protocol, but the principle on which it is based has a general application for any violation of international commitments, as we saw above. This provision is without prejudice to questions which might arise with regard to compensation for damage inflicted when there has not been any violation in the strict sense of the word, for example, caused by an external or unforeseen event, unrelated to the conduct of hostilities (' force majeure ' or fortuitous event). (19)

Second sentence -- Responsibility (20)

3660 In international law the conduct of any organ of the State, whether military or civilian, constitutes an act of State, provided that it acted in its official capacity, regardless of its position, whether superior or subordinate. (21) Thus the same applies to any member of the armed forces, without prejudice to the personal responsibility which he may incur, since a member of the armed forces is an agent of the State or of the Party to the conflict to which he belongs. (22) Such responsibility even continues to exist when he has exceeded his competence or contravened his instructions. (23) It can be imputed not only for acts committed by a person or persons who form part of the armed forces, as this provision lays down, but also for possible omissions. (24) As regards damages which may be caused by private individuals, i.e., by persons who are not members of the armed forces (nor of any other organ of the State), legal writings and case-law show that the responsibility of the State is involved if it has not taken such preventive or [p.1058] repressive measures as could reasonably be expected to have been taken in the circumstances. In other words, responsibility is incurred if the Party to the conflict has not acted with due diligence to prevent such acts from taking place, or to ensure their repression once they have taken place. (25)

3661 This responsibility covers "all" acts committed by members of the armed forces of a Party to the conflict, and not only unlawful acts (or omissions conflicting with a duty to act) in the sense of the Conventions and the Protocol. We saw above that only acts which constitute violations (except for any case of ' force majeure ' or fortuitous event that may occur) can give rise to compensation. However, it cannot be ruled out that the principle known as no-fault or strict liability would be taken into account, i.e., a concept of objective responsibility or liability which enters into play simply on the ground that the act or omission took place in the territory or under the jurisdiction of the State. This principle is recognized today in the field of environmental damage (irrespective even of the question whether there has been a breach of Article 35 -- ' Basic rules, ' paragraph 3), in nuclear matters, and in case of damage caused by spacecraft. (26) In this sense it therefore seems possible that a Party to the conflict could be liable to pay compensation even in a case where no particular violation of the rules of the Conventions and the Protocol, or of another rule of the law of armed conflict, can be imputed to it. However, such liability could not be based on the present article. (27)

' J. de P. '

NOTES(1) [(1) p.1053] See O.R. III, p. 347, CDDH/I/335, and Add. 1. The original text contained two paragraphs, the second of which was devoted to reproducing the article common to the four Conventions concerning the liability of Contracting Parties (First Convention, Art. 51; Second Convention, Art. 52; Third Convention, Art. 131; Fourth Convention, Art. 148). In the end such repetition was considered superfluous;

(2) [(2) p.1053] See O.R. IX, p. 397, CDDH/I/SR.70, and O.R. VI, pp. 344-345, CDDH/SR.46, para. 322;

(3) [(3) p.1054] See A. Mechelynck, op. cit., p. 99;

(4) [(4) p.1054] For the First World War, see in this respect, F. Berber, op. cit., pp. 238-240, and I. Seidl-Hohenveldern, "Reparations", in Bernhardt (ed.), op. cit., Instalment 4, 1982, pp. 178-180 and, for the Second World War, "Reparations after World War II", by the same author, ibid., pp. 180-184; see also A.A. Steinkamm, "war Damages", ibid., pp. 298-303;

(5) [(5) p.1054] See also ' Commentary III ', pp. 629-630. Moreover, the obligation to prosecute and provide effective penal sanctions for the perpetrators of grave breaches is absolute under the terms of the corresponding articles of the Conventions (First Convention, Art. 49; Second Convention, Art. 50; Third Convention, Art. 129; Fourth Convention, Art. 146);

(6) [(6) p.1054] In this respect, see Art. 231 of the Treaty of Versailles, even though at that time resort to force had not yet been declared illegal, and that without prejudice to the right of individual or collective self-fence (Art. 51 of the United Nations Charter). The three situations which are an exception to Art. 2(4) of the United Nations Charter remain legal: individual or collective self-defence, the measures provided for in Art. 42 of the Charter, and the exercise of the right of self-determination (see also supra, commentary Preamble, p. 23, and Art. 1, para. 4, p. 41);

(7) [(7) p.1054] Art. 1 of the Draft Articles on State responsibility, ' Yearbook of the International Law Commission ', 1980, vol. II, part 2, p. 30;

(8) [(8) p.1055] Cf. Art. 29 of the above-mentioned Draft Articles of the International Law Commission, to the effect that consent precludes the wrongfulness of an act, except when the obligation arises from a peremptory norm of international law. The prohibition of resorting to force certainly falls under this category, but it may be assumed that in many cases responsibility will be difficult to establish with certainty, or the wrongs will be committed by more than one Party. When depositing its instrument of ratification on 15 January 1982, the Republic of Korea made the following declaration: "In relation to Article 91 of Protocol I, a Party to the conflict which violates the provisions of the Conventions or of this Protocol shall take the responsibility for paying compensation to the party damaged from the acts of violation, whether the damaged party is a legal Party to the conflict or not.";

(9) [(9) p.1055] The French text uses the term "indemnité" "Indemnity" was probably not used in the English text deliberately, even as early as 1907 in the Hague Convention, as it refers particularly to a sum of money demanded by the victor: "sum exacted by victorious belligerent" (Oxford Dictionary);

(10) [(10) p.1056] Permanent Court of International Justice, Chorzow Factory Case, 13 September 1928, (Series A, No. 17, p. 29);

(11) [(11) p.1056] Cf. E. Jiménez de Aréchaga, "International Responsibility", in M. Sorensen (ed.), ' Manual of Public International Law ', New York, 1968, p. 534;

(12) [(12) p.1056] In this respect, see, for example, some of the Peace Treaties concluded after the Second World War with Hungary, Art. 24; Romania, Art. 23; Italy, Art. 75. Nevertheless, ' restitutio in integrum ' is only possible for damage resulting from armed conflict in exceptional cases;

(13) [(13) p.1056] Cf. Permanent Court of International Justice (Series A, No. 17, p. 47), quoted by M. Sibert, ' Traité de droit international public ', vol. 1, Paris, 1951, p. 324;

(14) [(14) p.1056] Cf. ' Yearbook of the International Law Commission ', 1980, vol. 1, p. 88, para. 17;

(15) [(15) p.1056] See the Protocol of The Hague for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, Part I, para. 3, which states that such property "shall never be retained as war reparations";

(16) [(16) p.1056] In this respect, see the ICRC protests after the end of the Second World War, ' Report of the ICRC on its activities during the Second World War (1 September 1939-30 June 1947) ', vol. 1, Geneva, 1948, pp. 394-403;

(17) [(17) p.1056] Such situations will in most cases be subject to the general rules on international responsibility. Acts causing damage and entailing responsibility based on application of Art. 91, actually remain exceptional;

(18) [(18) p.1056] See, for example, "Bundesversorgungsgesetz" of the Federal Republic of Germany, of 12 December 1950, 1 ' Bundesgesetzblatt ' 791, 1950;

(19) [(19) p.1057] Cf. Arts. 31 and 35 of the above-mentioned draft of the International Law Commission;

(20) [(20) p.1057] Apart from the above-mentioned article common to the four Conventions (see supra, p. 1053, note 1), the responsibility of the State and of its agents is specifically referred to in the Third Convention in Arts. 12, 39, 56, 57 and 66, and in the Fourth Convention in Arts. 29, 45, 60 and 96. See in particular, ' Commentary III ', pp. 128-139, and ' Commentary IV ', pp. 209-213;

(21) [(21) p.1057] Cf. Art. 5 of the above-mentioned draft of the International Law Commission;

(22) [(22) p.1057] It automatically follows that a person who has no discernment, whether because of his age or for any other reason, should not be enlisted in the armed forces. In addition, see Art. 77, para. 2, Protocol I;

(23) [(23) p.1057] Cf. Art. 10 of the above-mentioned draft of the International Law Commission;

(24) [(24) p.1057] Cf. Art. 3 ibid.; see also O.R. VI, p. 344, CDDH/SR.46, para. 23. In its judgment in the Corfu Channel case, the International Court of Justice confirmed the obligation of providing information on the existence of a minefield in territorial waters and warning ships when they approach. The Court based its judgment on general and well-recognized principles such as elementary considerations of humanity which are even more exacting in time of peace than in time of war ("Corfu Channel Case", ' ICJ Reports ' 1949, p. 22). The Convention on Prohibitions or Restrictions of the Use of Certain conventional Weapons extends the obligation so that it also includes minefields on land (Art. 7, Protocol 11). In this respect, see in particular, ' The material remains of war ', United Nations Institute for Training and Research (UNITAR), and Libyan Institute for InternationalRelations, UNITAR/CR/26, 1983, in particular, pp. 39-42 and 58-67;

(25) [(25) p.1058] See M. Sibert, op. cit., p. 317;

(26) [(26) p.1058] See C.W. Jenks, "Liability for Ultra-Hazardous Activities in International Law", 117 ' Hague Recueil ', 1966/I, pp. 90-200;

(27) [(27) p.1058] Responsibility would then rest on non-compliance with a duty to prevent (see "International liability for injurious consequences arising out of acts not prohibited by international law", Report of the International Law Commission on the work of its thirty-fourth session, General Assembly Official Records, Supplement No. 10 (A/37/10), pp. 190-192, paras. 122-128);