United States of America
Practice Relating to Rule 150. Reparation
The US Field Manual (1956), quoting Article 3 of the 1907 Hague Convention (IV), states:
In the event of violation of the law of war, the injured party may legally resort to remedial action of the following types: … Protest or demand for compensation … Such communications may be sent through the protecting power, a humanitarian organization performing the duties of a protecting power, or a neutral state, or by parlementaire direct to the commander of the offending forces.
The US Air Force Pamphlet (1976), quoting Article 3 of the 1907 Hague Convention (IV) and Article 29 of the 1949 Geneva Convention I and Article 12 of the 1949 Geneva Convention III, states:
Under international law, states which violate their obligations are responsible, in appropriate cases, for payment of monetary damages to compensate states for injuries suffered. This principle applies to law of armed conflict violations. State responsibility to compensate victims of violations is an important feature in enforcement measures. Claims for compensation are frequently combined with protests about violations … Thus, the violater state’s obligation to compensate for violations of the Hague Regulations applies regardless of whether the acts constituting violations were authorized by competent authorities of the violator state … However, as a general rule, in the absence of some cause for the fault such as inadequate supervision or training, no obligation for compensation arises on the part of the state for other violations of the law of armed conflict committed by individual members outside of their general area of responsibility.
The Pamphlet further states: “Article 3 [of the 1907 Hague Convention (IV)] concerns a state’s obligation to pay compensation for acts committed by its Armed Forces which violate the Hague Regulations. The 1949 Geneva Conventions contain a variety of such obligations.”
The US Naval Handbook (1995), under a provision dealing with “Enforcement of the law of armed conflict”, states: “In the event of a clearly established violation
of the law of armed conflict, the aggrieved nation may: … 2. Protest to the offending nation and demand that those responsible be punished and/or that compensation be paid.”
(emphasis in original)
The Annotated Supplement to the US Naval Handbook (1997), which contains a list of cases of demands for compensation involving US forces, states:
It is now generally established that the principle laid down in art. 3 [of the 1907 Hague Convention (IV)] is applicable to the violation of any rule regulating the conduct of hostilities and not merely to violations of the  Hague Regulations.
The US Naval Handbook (2007), under a provision dealing with “Enforcement of the law of armed conflict”, states: “In the event of a clearly established violation
of the law of armed conflict, the aggrieved nation may: … 2. Protest to the offending nation and demand that those responsible be punished and/or that compensation be paid.”
(emphasis in original)
In 1988, the US passed the Law on Restitution for WWII Internment of Japanese-Americans and Aleuts (1988) (as amended) containing a Statement of Congress to the effect that:
(a) With regard to individuals of Japanese ancestry
The Congress recognizes that, as described by the Commission on Wartime Relocation and Internment of Civilians, a grave injustice was done to both citizens and permanent resident aliens of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II … The excluded individuals of Japanese ancestry suffered enormous damages, both material and intangible, and there were incalculable losses in education and job training, all of which resulted in significant human suffering for which appropriate compensation has not been made …
(b) With respect to the Aleuts
The Congress recognizes that, as described by the Commission on Wartime Relocation and Internment of Civilians, the Aleut civilian residents of the Pribilof Islands and the Aleutian Islands west of Unimak Island were relocated during World War II to temporary camps in isolated regions of southeast Alaska where they remained, under United States control and in the care of the United States, until long after any potential danger to their home villages had passed. The United States failed to provide reasonable care for the Aleuts, and this resulted in widespread illness, disease, and death among the residents of the camps; and the United States further failed to protect Aleut personal and community property while such property was in its possession or under its control. The United States has not compensated the Aleuts adequately for the conversion or destruction of personal property, and the conversion or destruction of community property caused by the United States military occupation of Aleut villages during World War II. There is no remedy for injustices suffered by the Aleuts during World War II except an Act of Congress providing appropriate compensation for those losses which are attributable to the conduct of United States forces and other officials and employees of the United States.
Title I (“United States Citizens of Japanese Ancestry and Resident Japanese Aliens”, also known as “Civil Liberties Act”) of the Law establishes the Civil Liberties Public Education Fund and, under a provision entitled “Restitution”, provides:
The Attorney General shall, subject to the availability of funds appropriated to the Fund for such purpose, pay out of the Fund to each eligible individual the sum of $20,000, unless such individual refuses … to accept the payment.
Title II (“Aleutian and Pribilof Islands Restitution”) establishes the Aleutian and Pribilof Islands Restitution Fund and, under a provision entitled “Compensation for community losses”, provides: “Subject to the availability of funds appropriated to the Fund, the Secretary shall make payments from the Fund, in accordance with this section, as restitution for certain Aleut losses sustained in World War II.”
Under a provision entitled “Individual compensation of eligible Aleuts”, Title II further provides:
The Secretary shall, in accordance with this section, make per capita payments out of the Fund to eligible Aleuts. The Secretary shall pay, subject to the availability of funds appropriated to the Fund for such payments, to each eligible Aleut the sum of $12,000.
With respect to Attu Island, Title II also provides:
The public lands on Attu Island, Alaska, within the National Wildlife Refuge System have been designated as wilderness … In order to make restitution for the loss of traditional Aleut lands and village properties on Attu Island, while preserving the present designation of Attu Island lands as part of the National Wilderness Preservation System, compensation to the Aleut people, in lieu of the conveyance of Attu Island, shall be provided.
A provision of the California Code of Civil Procedure (1873), as amended, dealing with compensation for slave and forced labour states:
Any Second World War slave labor victim, or heir of a Second World War slave labor victim, Second World War forced labor victim, or heir of a Second World War forced labor victim, may bring an action to recover compensation for labor performed as a Second World War slave labor victim or Second World War forced labor victim from any entity or successor in interest thereof, for whom that labor was performed, either directly or through a subsidiary or affiliate.
In the Goldstar case in 1992, a US Court of Appeals rejected a claim brought against the US Government by Panamanian nationals whose business establishments had been looted during the US intervention in Panama. The plaintiffs argued, inter alia, that Article 3 of 1907 Hague Convention (IV) provided them with a remedy which could be enforced before the US courts and that the United States had waived its sovereign immunity under this self-executing provision. The Court rejected this argument, holding that the Hague Convention was not self-executing and stating:
International treaties are not presumed to be self-executing … Courts will only find a treaty to be self-executing if the document, as a whole, evidences an intent to provide a private right of action … The Hague Convention does not explicitly provide for a privately enforceable cause of action. Moreover, we find that a reasonable reading as a whole does not lead to the conclusion that the signatories intended to provide such a right.
In the Princz case in 1992 in which the plaintiff had brought an action for damages against Germany based on his internment by the Nazi regime during the Second World War, a US District Court affirmed its subject matter jurisdiction and rejected the claim of sovereign immunity by Germany. It held that Germany was stopped from relying on State immunity and that:
Under the circumstances of this case, a nation that does not respect the civil and human rights of an American citizen is barred from invoking United States law [i.e. immunity under the Foreign Sovereign Immunities Act of 1976] to block the citizen in his effort to vindicate his rights. In such a case, Plaintiff has a right to have his claim heard by a U.S. court.
However, in 1994, the decision of the District Court was overruled by the Court of Appeals which held: “None of the exceptions to sovereign immunity provided in the [Foreign States Immunity Act of 1976] applies to the facts alleged by [the plaintiff].” It therefore dismissed the claim for lack of jurisdiction.
In his dissenting opinion, one of the judges stated that he believed that “Germany’s treatment of [the plaintiff] violated jus cogens
norms of the law of nations, and that by engaging in such conduct, Germany implicitly waived its immunity from suit”.
In the Mochizuki case
in 1998, a class action brought by Latin American nationals of Japanese ancestry who had been arrested in various Latin American countries during the Second World War and who had been brought to the United States and interned, and who were not entitled to benefit from the terms of the 1988 Law on Restitution for WWII Internment of Japanese-Americans and Aleuts (as amended) because they were not US nationals, the US Court of Federal Claims preliminarily approved the settlement agreement entered into by the parties shortly before, which grants each member of the group of plaintiffs US$ 5,000 in compensation to be paid by the United States.
In its final order of 1999, the same Court stated: “The Settlement Agreement executed by the parties on June 10, 1998, is adjudged to be fair, reasonable, and adequate, and its terms are hereby approved.”
In July 1999, Barclays Bank, having been sued before a US District Court along with various other banks with branches, operations or predecessors in France during the Second World War by families of Jewish customers in France who had lost their assets during the German occupation, agreed to the so-called Barclays French Bank Settlement which provided for the establishment of a US$ 3,612,500 fund to compensate the victims.
The US District Court approved the Settlement Agreement.
In 2000, J.P. Morgan agreed to settle compensation claims by the so-called J.P. Morgan Settlement Agreement which provided for the establishment of a settlement fund of US$ 2,750,000 to compensate Jewish victims of the Holocaust who had seen their bank accounts seized during the Second World War in France.
The Settlement Agreement was approved by the US District Court.
In the Holocaust Victims Assets case
in 2000, a US District Court approved a class-action Settlement Agreement between Holocaust victims and Swiss banks agreed in August 1998, finding it fair, reasonable and adequate. The Agreement set up a US $1.25 billion fund to be created in four annual instalments over three years. In addition, it released, with few exceptions, “the Swiss Confederation, the Swiss National Bank, all other Swiss banks, and other members of Swiss industry”.
In its final order and judgment of 2000, the District Court approved the Settlement Agreement.
In the Comfort Women case
in 2001 dealing with the claim of 15 Asian women seeking compensation from Japan for having been used, during the Second World War, by Japanese military as so-called “comfort women”, a US District Court dismissed the complaint for lack of subject matter jurisdiction and, additionally, nonjusticiability on the ground of the political question doctrine. It stated, however, that “for [these] reasons, this court is unable to provide plaintiffs the redress they seek and surely deserve”.
In May 2004, the US Secretary of Defense appeared before The House Armed Services Committee, following the public revelations of detainee abuse by US service personnel at Abu Ghraib prison in Iraq. In his testimony, the Secretary of Defense stated that “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military.”
In the Hwang Geum Joo (Comfort Women) case in 2005, 15 women from China, Taiwan, the Republic of Korea and the Philippines sued Japan under the Alien Tort Statute “seeking money damages for [allegedly] having been subjected to sexual slavery and torture before and during World War II”, in violation of “both positive and customary international law”. The Court of Appeals for the District of Columbia Circuit affirmed the judgment of the District Court (which had found that, as the alleged activities did not fall within the commercial activity exception in the Foreign Sovereign Immunities Act, Japan had sovereign immunity), on the ground that the case presented a nonjusticiable political question, namely, whether the governments of the appellants’ countries foreclosed the appellants’ claims in the peace treaties they had signed with Japan:
Even if we assume, however, as the appellants contend, that the 1951 Treaty [1951 Treaty of Peace between Japan and the Allied Powers, 3 U.S.T. 3169] does not of its own force deprive the courts of the United States of jurisdiction over their claims, it is pellucidly clear the Allied Powers intended that all war-related claims against Japan be resolved through government-to-government negotiations rather than through private tort suits. Indeed, Article 26 of the Treaty obligated Japan to enter “bilateral” peace treaties with non-Allied states “on the same or substantially the same terms as are provided for in the present treaty,” which indicates the Allied Powers expected Japan to resolve other states’ claims, like their own, through government-to-government agreement.
The governments of the appellants’ countries apparently had the authority – at least the appellants do not contest the point to bargain away their private claims in negotiating a peace with Japan and, as we noted previously, it appears “in fact [they] did.” 332 F.3d at 685.
The question whether the war-related claims of foreign nationals were extinguished when the governments of their countries entered into peace treaties with Japan is one that concerns the United States only with respect to her foreign relations, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches, with “the President [having] the ‘lead role.’” Garamendi, 539 U.S. at 423 n.12. And with respect to that question, the history of management by the political branches, Baker, 369 U.S. at 211, is clear and consistent: Since the conclusion of World War II, it has been the foreign policy of the United States “to effect as complete and lasting a peace with Japan as possible by closing the door on the litigation of war-related claims, and instead effecting the resolution of those claims through political means.”
Here, however, the United States is not a party to the treaties the meaning of which is in dispute, and the Executive does not urge us to adopt a particular interpretation of those treaties. Rather, the Executive has persuasively demonstrated that adjudication by a domestic court not only “would undo” a settled foreign policy of state-to-state negotiation with Japan, but also could disrupt Japan’s “delicate” relations with China and Korea, thereby creating “serious implications for stability in the region.”
Is it the province of a court in the United States to decide whether Korea’s or Japan’s reading of the treaty between them is correct, when the Executive has determined that choosing between the interests of two foreign states in order to adjudicate a private claim against one of them would adversely affect the foreign relations of the United States? Decidedly not. The Executive’s judgment that adjudication by a domestic court would be inimical to the foreign policy interests of the United States is compelling and renders this case nonjusticiable under the political question doctrine.
In 2007, in the In re Iraq and Afghanistan Detainees Litigation cases, in which nine plaintiff detainees sought monetary damages and declaratory relief against the defendants, who they claimed were liable for torture and abuse inflicted on them while detained by the United States military during hostilities in Iraq and Afghanistan, the Court granted the defendant’s motion to dismiss. The Court stated:
The Court cautions against the myopic approach advocated by the plaintiffs and amici, which essentially frames the issue as whether torture is universally prohibited and thereby warrants a judicially-created remedy under the circumstances. There is no getting around the fact that authorizing monetary damages remedies against military officials engaged in an active war would invite enemies to use our own federal courts to obstruct the Armed Forces’ ability to act decisively and without hesitation in defense of our liberty and national interests, a prospect the Supreme Court found intolerable in Eisentrager:
Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.
Although the Supreme Court’s concern was voiced in the context of granting writs of habeas corpus to enemy aliens, the same reasoning is equally applicable here. The discovery process alone risks aiding our enemies by affording them a mechanism to obtain what information they could about military affairs and disrupt command missions by wresting officials from the battlefield to answer compelled deposition and other discovery inquiries about the military’s interrogation and detention policies, practices, and procedures. Military discipline and morale surely would be eroded by the spectacle of high-ranking military officials being ha[u]led into our own courts to defend against our enemies’ legal challenges, which might leave subordinate personnel questioning the authority by which they are being commanded and further encumber the military’s ability to act decisively. Commanders likely would hesitate to act for fear of being held personally liable for any injuries resulting from their conduct. These are only some of the many reasons why “[e]xecutive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security.”
It is established beyond peradventure that military affairs, foreign relations, and national security are constitutionally committed to the political branches of our government and “the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S. Ct. 309, 62 L. Ed. 726 (1918); Schneider v. Kissinger, 366 U.S. App. D.C. 408, 412 F.3d 190, 194 (D.C. Cir. 2005) (“Absent precedent, there could still be no doubt that decision-making in the fields of foreign policy and national security is textually committed to the political branches of government.”). Although it may be the case that standards appropriate for judicial application are available to resolve whether certain acts constitute torture, in the unique factual circumstances presented here that legal determination invariably would place the Court in the position of inquiring into the propriety of specific interrogation techniques and detention practices employed by the military while prosecuting wars. Some methods undoubtedly might be deemed improper and unlawful, but others might not – and still others might occupy a place on the periphery between the two. Military, executive, and congressional officials might arrive at a different conclusion from the judiciary about where on the spectrum a particular interrogation technique falls and whether it was, or is, properly used to obtain information about our enemies while conducting a war. It is at this point of divergence that the judiciary most risks intruding into military and foreign affairs. The hazard of such multifarious pronouncements – combined with the constitutional commitment of military and foreign affairs to the political branches and the Court’s previously expressed concerns about hindering our military’s ability to act unhesitatingly and decisively – warrant leaving to Congress the determination whether a damages remedy should be available under the circumstances presented here.
In addition to invoking the Alien Tort Statue as authority for a cause of action for money damages to remedy alleged violations of Geneva Convention IV, the plaintiffs also assert that the treaty itself provides a private right to sue … The plaintiffs point to Articles 3, 27, 31, 32, 118 and 119 of Geneva Convention IV as self-executing provisions …
The Court is not convinced that Geneva Convention IV is self-executing and establishes individual rights that may be judicially enforced via private lawsuits in federal courts. “Absent authorizing legislation, an individual has access to courts for enforcement of a treaty’s provisions only when the treaty is self-executing, that is, when it expressly or impliedly provides a private right of action.” Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 808 (D.C. Cir. 1984).
[I]t is the law of this circuit that a treaty is not self-executing when the rights of individuals are intended to be vindicated through diplomatic recourse. Holmes v. Laird, 148 U.S. App. D.C. 187, 459 F.2d 1211, 1222 (D.C. Cir. 1972). Article 149 provides that any alleged violation of the treaty shall be subject to an “enquiry” at the request of a party to the conflict, which enquiry shall be undertaken according to procedures negotiated by the parties or determined by an agreed-upon umpire. Id. at art. 149. If a violation of the treaty is established, “the Parties to the conflict shall put an end to it and shall repress it with the least possible delay.” Id. When considered as a whole, it is apparent from these provisions – which make clear that enforcement of Geneva Convention IV is to be left to the legislation and laws of the parties or to diplomatic enquiry – that the treaty is not intended to be self-executing, in which case the plaintiffs are not entitled to pursue private lawsuits against the defendants for alleged violations.
[T]he recently-enacted Military Commissions Act of 2006, 109 P.L. 366, 120 Stat. 2600, confirms the Court’s view that Geneva Convention IV is not self-executing. Section 5 of the Act states that “[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.” However, given that the other stated grounds support the Court’s conclusion that Geneva Convention IV is not self-executing, it is not necessary to address at this time whether the Military Commissions Act of 2006 has retroactive application to the plaintiffs’ lawsuit.
Because Geneva Convention IV manifests an intent to be enforced through legislation or diplomacy, it is not a self-executing treaty that provides a private right for the plaintiffs to sue the defendants for money damages. The plaintiffs’ cause of action for violations of Geneva Convention IV therefore fails to state a claim for relief and will be dismissed.
In 1996, the United States, with regard to funding provided by the US Agency for International Development (USAID) for the construction of a new hospital and satisfactory compensation in favour of petitioners before the Inter-American Commission on Human Rights who had allegedly suffered a US military aircraft attack on an asylum in Grenada, formally noted
its long-standing position that its actions were entirely in conformance with the law of armed conflict, and that therefore the US had no legal liability for any damages claimed. For these reasons, the US categorically rejects as inaccurate and misleading the petitioners’ statement as an alleged settlement of this case and compensation paid in this matter.
In a concurrent resolution adopted in 2000 concerning the war crimes committed by the Japanese military during the Second World War, the US Congress expressed its sense that:
the Government of Japan should –
(2) immediately pay reparations to the victims of those crimes, including United States military and civilian prisoners of war, survivors of the “Rape of Nanjing” from December, 1937, until February, 1938, and the women who were forced into sexual slavery and known by the Japanese military as “comfort women”.
In 2005, in its second periodic report to the Committee Against Torture, the United States stated:
120. The United States is committed to adequately compensating the victims of abuse and mistreatment by U.S. military personnel in Iraq. The U.S. Army is responsible for handling all claims in Iraq. Several claims statutes allow the United States to compensate victims of misconduct by U.S. military personnel. The primary mechanism for paying claims for allegations of abuse and mistreatment by U.S. personnel in Iraq is through the Foreign Claims Act (FCA), 10 U.S.C. § 2734. Under the FCA, Foreign Claims Commissions are tasked with investigating, adjudicating, and settling meritorious claims arising out of an individual’s detention. …
121. In addition, the Secretary of Defense has directed the Secretary of the Army to review all claims for compensation based on allegations of abuse in Iraq and to act on them in his discretion. In instances where meritorious claims are not payable under the FCA or the MCA [Military Claims Act], the Secretary of the Army is responsible for identifying alternative authorities to provide compensation and either to take such action or forward the claim to the Deputy Secretary of Defense with a recommendation for action.
In May 2006, in his opening remarks to the Committee against Torture prior to its consideration of the United States’ second periodic report, the head of the US delegation stated:
Our focus on eradicating torture and punishing its perpetrators would be incomplete without a parallel effort to help its victims recover from abuses. The United States has comprehensive legislation that enables citizens and non-citizens of the United States who are victims of torture to bring claims for damages against foreign government officials in U.S. federal courts.