# Amicus Curiae Brief — Lindo & Maduro, S. A. v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 973

## Text

BEST AVAILAI

No. 92-399 ok

IN THE
Supreme Court of the United States

OCTOBER TERM, 1992

Linpo & Mapwuro, S.A. et al.,
Petitions T'S:
ee
UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari
To the United States Court of Appeals
for the District of Columbia Circuit

SOS, rane

BRIEF OF THE GOVERNMENT OF PANAMA
AS AMICUS CURIAE IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI

ANDREAS F. LOWENFELD
(Counsel of Record)

THEODOR MERON

40 Washington Square South

New York, New York 10012

(212) 998-6208

Counsel for the

Republic of Panama
Amicus Curiae

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

RA OF BUTE re csnssescencssosessensecesincasaceracin il

THE INTEREST OF THE AMICUS CURIAE ........... ]
(a) Statement of the Isswes .......ccccccccccccceees a 1

(b) The Interest of the Government of
PI Satria ehetsencr eee

CO ww

SUMMARY OF ARGUMENT ................ccccccsssssesseeseess

PAPIEEEITE Sguivsinids iin sbuanssntnovenvarniaiisiennskotcdmiasesenias

I. THIS COURT SHOULD CONFIRM THAT AS
THE ARMED FORCES OF THE UNITED
STATES TOOK OVER CONTROL OF THE
TERRITORY OF PANAMA, THE UNITED
STATES BECAME AN OCCUPYING POWER
WITHIN THE MEANING OF THE HAGUE
GME W MUTE MUDUE sth Giidieaceiiuiigh digintesweensalavcuan cde 5)

or

A. Occupation is a Question of Fact. The
Fact is that the U.S. Forces Destroyed
the Panamanian Security Forces and
Took Control of Large Sections of Pan-
ama, including its Capital City. ....000.00.. 5

B. Intent, and Particularly Post Hoc State-
ments Cannot Change the Objective Facts
Giving Rise to an Occupation. ................

~]

Il. THE PROVISION OF THE HAGUE CONVEN-
TION WHOSE BREACH GIVES RISE TO THE
PRESENT ACTION IS MANDATORY, AND
FAILURE TO CARRY OUT ITS TERMS CAN-
NOT FAIRLY BE CHARACTERIZED AS A
DISCRETIONARY ACT. ............ccccccscccscsseeseees 10

A. The Complaint in this Action Alleges
Breach of a Mandatory Obligation, not
Failure to Exercise a Discretionary
PINNING Seri dicectnannscudaieenabataecctaatee,: 10

B. Domestic Law Cannot Shield the United
States from its International Obligations;
that Law Should be So Construed as to
Avoid any Conflict with the Applicable
STOREY. osccccccacsaccaceusesas eee

THIS COURT SHOULD UPHOLD THE RIGHT
OF PRIVATE CITIZENS TO BRING PRIVATE
ACTIONS FOR BREACH OF THE HAGUE
CONVENTION AS CONTEMPLATED IN AR-
TICLE III OF THE CONVENTION. ................

noe
nd
—

CONCLIUISIIDIN <<nicsxseasokusipteyenennes einen ann

14

iil

TABLE OF AUTHORITIES

U.S. Cases Page
Berkovitz v. United States, 486 U.S. 531 (1988) ... 11
Goldstar (Panama) v. United States, 967 F.2d 965
eA LE aR Raat a 19
In re Yamashita, 327 U.S. 1 at 16 (1946) ............ 20
Murray v. Schooner Charming Betsy 6 U.S. (2
NR tO is sce cincuesuanscesanvensies 14

United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797
eae areas shade Pua cestajnaccasbavednstetenssctei 1]

International and Foreign Cases

Advisory Opinion on Treatment of Polish Nationals
in Danzig,, P.C.I.J., ser. A/B, No. 44 at 22
tt abe Deus kde uainnaucinshiunsnakvceadaekaansubsedacceee 13

Bilotte v. Groos and the State of the Netherlands,
_. Dist. Ct. Arnhem, the Netherlands, June 24,
1948, [1951] Nederlandse Jurisprudentie No.
261, [1949] Ann’! Digest and Reports of Int’l
IE IE rhech curs timlachniiusshakhacnaesaGaesininsesiss 18

Dawson Bank Ltd. v. Ko Sin Sein Burma, High
Court Burma, Sept. 15, 1960, Chief Court May
G3000, 26 Inti L. Rep. 497 .c.ccsccscscccssccccss 18

Héve v. State of France, [1935] 1 Sirey 249 (Cour
de Cassation, Ch. civ., 6 Feb. 1934), summa-
rized in [1933-34] Ann’l Digest & Reports of

PUBGC Unt’ Law Capes 611 ........cccssesvccssssssseess 18
Johansen v. Gross, [1950] Norsk Rettstidende p. 326

(Norway), [1949] Ann’l Digest 481 ..........0..... 18
P. v. A.G. K. and P., (Fed’] (Supreme) Ct. Switz-

erland) [1948] Ann’] Digest 594 ................0.. 18
Statutes

Federal Tort Claims Act, 28 U.S.C. §2680(a) ....... passim

iv

Table of Authorities Continued
Page
Treaties and International Agreements

3114, 3217, 3316, and 3516; T.I.A.S. 3362,

3363, 3364 and 3365; 75 U.N.T.S. 31, 85, 135,

I FN - sascitenreccans eccentrics cians steecateaens 5
Hague Convention of 1907 Respecting the Laws

and Customs of War on Land, 36 Stat. 2277;

Wee Fe BIN NE eednccsneeseneecicccnchorvatace passim

Miscellaneous

Richard R. Baxter, “Some Existing Problems of
Humanitarian Law,” in The Concept of Inter-
national Armed Conflict: Further Outlook, p.

B. OED Cm BOD vvnvcccenciees. Socerenceoncdececcka: 20

Deuxiéme Conférence International de la Paix, La
Haye 15 June - 18 Octobre 1907, Actes et Doc-

uments, Vol. III, p. 144-145 (1909)... 16-17
International Committee of the Red Cross, 1989 An-
SORE Be WA HEE -ctnecccnes Atuastanrarenecasesaeees 9

Frits Kalshoven, ‘‘State Responsibility Warlike Acts
of the Armed Forces: From Article 3 of Hague
Convention IV of 1907 to Article 91 of Addi-
tional Protocol of 1977 and Beyond,”’ 40 Int’l
& Comp. L.Q. 827, 835-36 (1991) ...... 17-18

Harold J. Krent, ‘Preserving Discretion Without
Sacrificing Deterrence: Federal Government
Liability in Tort,’”’ 39 UCLA L. Rev. 871
GRE cabniccsc ibdecicatcuaniaseitteneoecamecionniatsedteae acids 11

Albert Mechelynck, La Convention de la Haye con-
cernant les lois et coutumes de la querre sur
a) | 17

Parkerson, J.E. Jr., “United States Compliance with
Humanitarian Law Respecting Civilians During
Operation Just Cause,” 133 Military L. Rev.

hp: Ge I, sicchncaenaccsiascetinsenenncgateieneaceeacaneie g
Public Papers of the Presidents, George Bush 1989-
iS P'S). Sl, eee ;

Table of Authorities Continued

Public Papers of the Presidents, George Bush 1990-
E, DR BL 26 ircsnivscencesncsnteaennens

Report of Delegates to Second International Peace
Conference, [1907] Papers Relating to Foreign
Relations of the United States, Vol. 2, p.
BI cnsecanesannsancencicraseieuaninanss eskanentenaereaian

Restatement (Third) of the Foreign Relations Law
of the United States §111, Comment a; §115,
Commibet 6 (00ST) ciccitetsccicssscnnueeertteees

Restatement (Third) of the Foreign Relations Law
OF the Uribe TtRtOe GARG sissincvcccssentiveccsescces

Yves Sandoz, Unlawful Damages in Armed Con-
flicts and Redress under International Human-
itarian Law, Int’] Rev. Red Cross, No. 228,
ASI, 197 Cay SRIe AGGE) cecsisensiictrciiincen

U.S. Department of the Army Field Manual, The
Law of Land Warfare, FM27-10 (1956) .........

Donald N. Zillman, ‘“‘Congress, Courts and Govern-
ment Tort Liability: Reflections on the Discre-
tionary Function Exception to the Federal Tort
Claims Act,’”’ 1989 Utah L. Rev. 687 .............

Page

_

~

IN THE
Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-399

LINDO & MApDuRO, S.A. et al.

Petitioners
¥,
UNITED STATES OF AMERICA
Respondent

On Petition for a Writ of Certiorari
To the United States Court of Appeals
for the District of Columbia Circuit

BRIEF OF THE GOVERNMENT OF PANAMA
AS AMICUS CURIAE IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI"

THE INTEREST OF THE AMICUS CURIAE
(a) Statement of the Issues

The petition for certiorari in this case presents two re-
lated questions for review. First, does the doctrine of sov-

* Both Petitioner and Respondent have consented to the appear-
ance of the Government of Panama as an amicus curiae, and the written
consents are on file with the Clerk. The Government of Panama has
previously submitted two Diplomatic Notes to the Government of the
United States in connection with this litigation, but these Notes were
not accepted by the Court of Appeals on motion of Petitioners. The

Diplomatic Notes are reproduced (in Spanish and English) in the Ap-
pendix to the Petition.

to

ereign immunity as practiced in the United States shield
the United States government from its obligations under
the Hague Convention of 1907 (IV) Respecting the Laws
and Customs of War on Land; and second, do the obli-
gations under the Hague Convention include responsibility
to civilians who suffer damage as a result of a govern-
ment’s failure to comply with the commands of the Con-
vention. The Court of Appeals, in a bref per curiam
decision in a companion case (Pet. App. 3a), answered the
first question in the affirmative, and did not reach the
second question. An underlying question, not addressed
either by the Court of Appeals or by the District Court
(Pet. App. 20a), and but casually referred to in an “Even
if ...’’ subordinate clause in the opinion of the Court of
Appeals (Pet. App. 4a), concerns the applicability to the
events of Operation Just Cause of the Hague Convention
Respecting the Laws and Customs of War on Land of
1907.

Panama, like the United States, is an original party to
the Hague Convention and has a strong interest in its
correct interpretation and application. In its submission to
the Court of Appeals in one of the related cases, the U.S.
Department of Justice asserted that the Convention was
not applicable, Other statements of United States officials,
in connection with the operation in Panama (1989) as well
as analogous instances (Grenada 19838, Iraq 1991), have
indicated that the United States does regard the Hague
Convention (as well as the 1949 Geneva Convention) ap-
plicable in defining the obligations of United States forces
in such situations. The Government of Panama sets forth
hereafter its own position on the applicability of the Hague
Convention. It urges the U.S. Supreme Court to use the
opportunity presented by the instant case to clarify the
position of the United States on this important issue.**

** The complete text of the Hague Convention No. IV of 1907 is”
annexed to this Brief.

(b) The Interest of the Government of Panama

The Government of Panama submits this brief because
the decision below dismissed with only cursory attention
a series of claims by Panamanian citizens and companies
gravely damaged as a consequence of actions (and inaction)
by the forces of the United States on Panamanian territory
in December 1989. When these forces arrived on the ter-
ritory of Panama, the government assumed that they would
comport themselves in full compliance with the require-
ments of international law. The present action (and com-
panion actions) assert that in fact the armed forces of the
United States did not live up to these requirements, and
that as a result plaintiffs were seriously damaged.

The government of Panama is not prejudging the factual
assertions on which the present action is based. It has a
strong interest, however, in having the claims heard on
the merits, and in the opportunity of its citizens to obtain
justice if it is shown that their injuries were attributable
to the failure of the United States armed forces to carry
out their obligations under international law. The Govern-
ment of Panama was confident that its citizens could se-
cure redress in the courts of the United States for their
injuries. Thus far, that confidence has not been justified.
The Government of Panama therefore looks to the Supreme
Court of the United States for the opportunity to have
the interests of its citizens vindicated in the courts of the
United States.

SUMMARY OF ARGUMENT

1. The invasion of Panama by the armed forces of the
United States in December 1989 had as one of its objects
the displacement of the de facto government of Panama.
The invasion gave rise to armed conflict, as defined in
international law, and in particular in the Hague Conven-
tion of 1907 Respecting the Laws and Customs of War
on Land. In light of the contradictory statements in the
record of this case and elsewhere, this Court should con-
firm that as the armed forces of the United States secured

%

control of Panamanian territory and displaced the Pana-
manian Defense Forces, the United States took on the
status, and assumed the obligations, of an occupant, as
defined in Articles 42 and 43 of the Regulations annexed
to the Hague Convention.

2. Article 43 of the Regulations annexed to the Hague
Convention provides that ‘‘the occupant [i.e., here the
United States] ... shall take all the measures in [its] power
to restore, and ensure, as far as possible, public order and

safety. ...’’ Article 3 of the Convention provides that a
state party which violates the provisions of the Convention
‘shall ... be liable to pay compensation.” As Petitioners

have urged, neither of these provisions leaves room for
discretion. A state may avoid liability if it proves to a
court that it was not “‘possible,”” or was not ‘‘in its power,”
to take the measures that would restore or ensure public
order and safety. A state cannot avoid liability under the
Convention, however, by the assertion that securing of
public order was merely one of several items on its agenda,
and that the order of priority in addressing these items
was a matter of discretion not reviewable by a court, or
by denying that it was an occupant.

3. The records of the Second Hague Peace Conference
of 1907 reveal that a major motivation in the Hague Con-
vention of 1907 was the adoption of Article III, providing
for compensation (indemnisatien in the French originai)
by states for violation by their armed forces of the Reg-
ulations incorporated into the Convention. Whether the
obligation to pay compensation can be vindicated in na-
tional courts, as advocated by leading jurists, is not yet
firmly established by case law. This Court should make
clear that no state is immune from the obligations laid
down by the Hague Convention, and that these obligations
may be vindicated in the courts of state parties to the
Convention.

ARGUMENT

I. THIS COURT SHOULD CONFIRM THAT AS THE
ARMED FORCES OF THE UNITED STATES TOOK
OVER CONTROL OF THE TERRITORY OF PANAMA,
THE UNITED STATES BECAME AN OCCUPYING
POWER WITHIN THE MEANING OF THE HAGUE CON-
VENTION

A. Occupation is a Question of Fact. The Fact is that
the U.S. Forces Destroyed the Panamanian Se-
curity Forces and Took Control of Large Sections
of Panama, Including its Capital City.

Article 42 of the Regulations Annexed to the Hague
Convention of 1907 Respecting the Laws and Customs of
War on Land, 36 Stat. 2277; T.S. 539: 1 Bevans 631.
provides that ‘‘Territory is considered occupied when it Is
actually placed under the control of the hostile army.
Article 42 goes on to state: “The occupation extends only
to the territory where such authority has been established
and can be exercised.’"! Thus, for instance, the United
States became an occupant in Panama City and surround-
ing areas when its armed forces took contro! of those
areas, but not in those areas of Panama where the U.S
forces made no attempt to establish their authority.

It is clear that occupation is a question of fact. There
can be no doubt that as of December 21, 1989, the armed
forces of the United States took control of Panama City.*

‘ Note that common Article 2 of the Geneva Red Cross Conventions
of 1949, 6 U.S.T. 3114, 3217, 3316, and 3516: T.1.A.S. 3362, 3363,
3364 and 3365. 75 U.N.T.S. 31, 85, 185, and 287, contains a similar
provision,

‘See, e.g., Defense Department briefing by Lt. Gen. Thomas W.
Kelly, Dec. 22, 1989:
The city is our primary concern right now. ... Our strat-
egy was to take on the P.D.F. units first and to take them
down. We've pretty much done that. We have turned our
attention to the city. We are conducting mopping up op-
erations there, but they are not easy.

New York Times Dec. 23, 1989 p. 13 col. 1.

President Bush himself confirmed this, in his Press Con-
ference of December 21, 1989:°

Opening Statement

This operation is not over, but it’s pretty
well wrapped up. And we've moved aggressively
to neutralize the PDF [Panamian Defense Forces]
to provide a stable environment for the freely
elected Endara Government. .. . General Noriega
is no longer in power. ...

QUESTIONS AND ANSWERS

Q. Mr. President, in light of what you've said
about the Endara Government getting started—
the need for stability, the need for some kind of
police action down there—we really are in a kind
of an open-ended military occupation there, aren't
we, sir?

The President. Well, I wouldn’t say it’s open-
ended. ...

Q. Mr. President, just to follow up, if I could,
sir. In the planning of this operation, surely you
must have recognized that these actions would
be needed and some force would have to be on
the ground there for a while. What estimate did
you have as you undertook this operation as to
how long it would take?

The President. Brit, no number-of-day estimate
was given to me. I think everyone recognized
‘some of that would depend on when Noriega was
brought to justice, some of that depended on how
a restructured P.D.F. behaved.

There is no need here to spell out the events of De-
cember 1989. In brief, the facts were that under the re-

‘New York Times, Dec. 22, 1989, p. Al6, col. 1-6; Public Papers of
the Presidents, George Bush 1989-II, p. 1728 at 1729, 1730.

gime of General Noriega, the P.D.F. acted both as a
military force and as a police force maintaining order in
Panama City, Colon, and other cities of the Republic of
Panama. The United States acted to destroy the P.D.F..
and assumed responsibility for security in Panama on a
provisional basis within the meaning of the Hague Con-
vention. The United States did not, of course, act as a
conquering power; no such condition is stated in the Hague
Convention. But the United States did seek to exercise
control in the territory of Panama, and it exercised that
control during the period relevant to the present law suit.

B. Intent, and Particularly Post Hoe Statements Can-
not Change the Objective Facts Giving Rise to an
Occupation. ¥

In its bref to the District Court in this case. the U.S.
Department of Justice argued that the United States did

‘Two weeks later, President Bush held another Press Conference

Q. Mr. President, with General Noriega out of Panama and
safely in custody in this country, it seems like you may have
a difficult choice in deciding how to maintain order in Pan-
ama. Do you envision keeping a U.S. military peacekeeping
force there beyond the usual contingent of 12,000 troops,
or would you like to see the Panamanian Forces reconsti
tuted?

The President: One, I'd like to see their police forces, what
ever emerges, reconstituted. Two, we will get our forces
that went in out as soon as possible.

Q. Mr. President, do you anticipate that the bulk of the
additional combat troops sent into Panama will indeed be
out by the end of this month [January 1990] ?

The President. ... : As soon as possible Some U.S. forces
that went in are already out. So I would look for an early
return.

Q. General time frame?
The President. Can't help you.

N.Y. Times, Jan. 6, 1990, p. Al10, col. 1-6; Public Papers of the
Presidents, George Bush 1990-I, pp. 14, 16.

not assume the status of an occupant within the meaning
of the Hague Convention because it did not have the in-
tention to become an occupying power.’ The Department
of Justice relied for this assertion on an affidavit of an
Assistant Secretary of State who identifies himself as ‘‘di-
rectly involved in the formulation of United States policy
regarding U.S. political-military relations in Panama.’’* The
affidavit states that “the territory of Panama was not
placed under the authority of U.S. military forces,’’ and
concludes that therefore ‘‘the United States did not be-
come an occupying power within the meaning of the Hague
Convention No. IV. ...’’ The facts, however, were oth-
erwise, and the law is otherwise.

The drafters of the Hague Convention wanted to make
sure that states did not say ‘‘We didn’t mean it,”’ or ‘‘some
of our soldiers were acting beyond their orders.’’ Even if
the intention were as the Assistant Secretary stated,’ that
could not, in the submission of Panama, overcome objective
facts.

Formal statements in United States documents not made
in connection with this litigation, as well as statements of
leading scholars in the United States and abroad, support

‘Memorandum of Points and Authorities on behalf of the United
States in Support of Motion to Dismiss pp. 9-10, Lindo & Maduro.
S.A. v. United States of America, Civ. Action No. 90-2589 LFO.

* Affidavit of Richard A. Clarke dated Jan. 10, 1991 (i.e., more than
two years after the event), attached as Exhibit 3 to Memorandum of
Points and Authorities, note 5 supra.

* Compare the briefing of General Kelly on Dec. 21, 1989, while the
operation was under way:

The Days Objectives

Our objectives for today are primarily threefold. One is
to continue to support the establishment of a democratic
government in Panama. Second, to move into Panama City
and restore order there, where most of the disorder appears
to be. And the third one is to continue to track Mr. Noriega
in an effort to capture him.

New York Times, Dec. 22, 1989, P. Al6, col. 2.

a

this position. The official U.S. Department of the Army
Field Manual entitled The Law of Land Warfare, FM27-
10 (1956) states:

Military occupation is a question of fact. It pre-
supposes a hostile invasion, resisted or unres-
isted, as a result of which the invader has
rendered the invaded government incapable of
publicly exercising its authority, and that the in-
vader has successfully substituted its own au-
thority for that of the legitimate government in
the territory invaded. (para. 355).

The exercise of these rights [of the occupying
power] results from the established power of the
occupant and from the necessity of maintaining
law and order, indispensable both to the inhab-
itants and to the occupying force. (para. 358).

A leading article by a member of the U.S. Army Judge
Advocate General’s Corps, though recognizing the unusual
circumstances of the invasion, concluded ‘‘. . . United States
conduct in Operation Just Cause was regulated by the full
body of international humanitarian law.”’ John Embey Par-
kerson, Jr., ‘United States Compliance with Humanitarian
Law Respecting Civilians During Operation Just Cause,”’
133 Military L. Rev. 31, 43 (1991). Major Parkerson makes
clear that by Humanitarian Law he means both the 1949
Geneva Conventions and Hague Convention IV. Id. at 44.

The Government of Panama confirms that, step by step,
U.S. forces turned over control of the territory of the
Republic to the present government. These good inten-
tions, however, do not change ‘‘the facts,” as Major Par-
kerson put it, ‘‘that United States forces exerted some
degree of control over portions of Panamanian territory
for periods of time. ...” Id. at 81.8

* Accord: 1989 Annual Report of the International Committee of the
Red Cross, p. 47:

(continued)

It is not clear that the position on the applicability of
the Hague Convention taken by the U.S. Department of
Justice and the Assistant Secretary of State actually rep-
resents the official position of the United States. The Gov-
ernment of Panama, in fulfilment of its constitutional duty
to support the just claims of its citizens, joins petitioners
in urging the U.S. Suprerme Court to accept the present
case for review, in order to clarify the position of the
United States on the issue, and to provide unequivocal
guidance to its forces, and to the forces of other states,
in carrying out their many responsibilities around the
world.

II. THE PROVISION OF THE HAGUE CONVENTION
WHOSE BREACH GIVES RISE TO THE PRESENT AC-
TION IS MANDATORY, AND FAILURE TO CARRY OUT
ITS TERMS CANNOT FAIRLY BE CHARACTERIZED
AS A DISCRETIONARY ACT.

A. The Complaint in this Action Alleges Breach of a
Mandatory Obligation, not Failure to Exercise a
Discretionary Function

Assuming, then, that the Hague Convention of 1907 was
applicable to define the obligations of the United States
armed forces present in Panama in December 1989-Jan-
uary 1990, it is necessary to explore what those obligations
entailed. The District Court dismissed the complaint in the
related case (Pet. App. 20a at 22a-27a), on the basis of
the discretionary function exception to the Federal Tort
Claims Act, 28 U.S.C. §2680(a), and the Court of Appeals
held that this conclusion was correct. (Pet. App. at 4a).

On December 20, following the United States armed in-
tervention, the ICRC reminded both parties of the applic-
ability of international humanitarian law and offered them
its services. The regional delegate arrived in Panama the
following day to assess the situation and contact the rele-
vant authorities, in conformity with the provisions of the
Third and Fourth Geneva Conventions. The US military
authorities allowed the ICRC to visit prisoners of war and
detained Panamanian civilians in two internment camps in
the Canal zone from 30 December ...

-

The Government of Panama does not, of course, claim_any
special expertise in interpreting the United States Federal
Tort Claims Act, the construction of which has not always
been wholly uniform.’ It does, however, understand the
principle that courts should not substitute their judgment
for policy-making decisions of the executive branch of a
state, and that even if a decision of policy proves in ret-
rospect to have been mistaken and to have injured some-
one, such a mistake should not give rise to civil liability
against the state. See United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797 (1984). But if the governing law or regulation is such
as to leave no room for discretion, then failure to follow
the law or regulation cannot be regarded as covered by
an exception for discretionary action. See Berkovitz v.
United States, 486 U.S. 531 (1988).

In the Berkovitz case, involving a claim that plaintiffs
had contracted poliomyelitis from defective vaccines, this
Court explained that the decision by the relevant govern-
ment agencies on how to regulate the release of vaccine
lots was a discretionary function. If the Bureau of Biol-
ogics had decided to conduct spot checks of vaccine lots,
and the lot that injured the plaintiff had slipped through,
there would have been no liability. Berkowitz, 486 U.S. at
536-38; Varig, 467 U.S. at 819-20. But if, as in the actual
situation in Berkovitz, the Bureau had decided to test all
vaccine lots, and plaintiff credibly asserted that a given
lot was not tested at all or that the test was carelessly
performed, then the Bureau (and by extension the United
States) would be potentially liable for failing to carry out
a duty, and therefore the United States would not be
shielded from suit.

On the basis of this distinction, the decisions of the
lower courts in the present case seem to have misconceived

*See, e.g. Donald N. Zillman, “Congress, Courts and Government
Tort Liability: Reflections on the Discretionary Function Exception to
the Federal Tort Claims Act,”’ 1989 Utah L. Rev. 687; Harold J. Krent.
‘Preserving Discretion Without Sacrificing Deterrence: Federal Gov-
ernment Liability in Tort,’”” 39 UCLA L. Rev. 871 (1991).

iz

the relation between the Hague Convention and the U.S.
Tort Claims Act. The Court of Appeals held that the dis-
cretionary function exception applied both to the “‘plan-
ning’’ and to the “‘operational’’ level of the conduct of the
U.S. armed forces, and that “even if’ the Convention
applied, the discretionary function exception would bar re-
covery. (Pet. App. at 4a). With respect, the Court of
Appeals, like the District Court, appears to have conducted
the analysis backwards. The proper approach, as called for
by international law, would seem to be to ask first whether
the applicable convention leaves the question of public or-
der and safety to the discretion of the Occupant. If so,
then how the Occupant deals with that issue is a matter
of discretion or priorities or political choice, not reviewable
by a court. If not, then the existence of discretion cannot
arise, because the relevant provisions of the Convention
contain obligations, not suggestions or options.

The present action alleges violation of Article 43 by the
United States, and in particular of the obligation contained
in that article that the occupant ‘‘shall take all the meas-
ures in [its] power to restore, and ensure, as far as pos-
sible, public order and safety. ...’’ To be sure, the words
‘‘all the measures in [its] power,’’ and ‘‘as far as possible’”’
call for some type of evaluation. But the Convention does
not say “‘the occupant ... may take such measures as it
deems appropriate. ...”; it says ‘“‘the occupant shall take
all the measures in its power. ...”’ and the allegation in
the complaint is that the United States forces did not do
so, indeed did not during several days of looting make
any attem,. to do so.”

The District Court was not asked whether it was proper

for Major Smith or Sergeant Jones to lead his troops down

Avenida A rather than Avenida B. That decision would

| clearly have been a matter of on-site discretion, and under
| the law of Panama as wel! as the law of the United States
such a decision is and ought to be unreviewable in court.

See, e.g.. New York Times, Dec. 23, 1989, p. A 1 col. 2-3, “CITIES
ARE LOOTERS’ JUNGLES AS CHAOS CONSUMES PANAMA.”

——————————

13

The assertion in the complaint is that no instructions or
orders were given to the U.S. forces in Panama to carry
out the obligation of Article 43, so that even if Major
Smith or Sergeant Jones wished to intercede to stop the
looting and wanton destruction in Panama City, they would
have lacked the authority to do so."

If the assertion made in the complaint is true, the action
(or inaction) cannot be regarded as a matter of discretion
under international law as set out in the Hague Conven-
tion. Surely if United States troops had themselves en-
gaged in pillage, notwithstanding Articles 28 and 47 of
the Regulations Annexed to the Convention, which provide
that pillage is forbidden, or if the United States had taken
plaintiffs’ property, notwithstanding Article 46, which pro-
vides ‘‘Private property cannot be confiscated,” it could
not be said that claims arising out of such acts would be
dismissable on the basis that they arose out of exercise
of a discretionary function. A fair reading of the Hague
Convention leads to the conclusion that Article 43 here
invoked, like Articles 28, 46, and 47 (as well as numerous
others) states an obligation, not an option subject to po-
litical judgment or discretion.

B. Domestic Law Cannot Shield the United States
from its International Obligations; that Law
Should be So Construed as to Avoid any Conflict
with the Applicable Treaty.

It is a fundamental principle of international law that
a state may not invoke a domestic law to avoid an obli-
gation under international law. See, e.g., Advisory Opinion
on Treatment of Polish Nationals in Danzig, P.C.I.J., ser.
AJB, No. 44 at 22 (1932); Restatement (Third) of the For--
eign Relations Law of the United States §111, Comment

‘Note that Article I of the Hague Convention provides:

The Contracting Powers shall issue instructions to their
armed land forces which shall be in conformity with the
Regulations respecting the Laws and Customs of War on
Land, annexed to the present Convention.

- 14

a; §115, Comment 6 (1987). The corollary was stated by
Chief Justice Marshall about 200 years ago:

[A]n Act of Congress ought never to be construed
to violate the law of nations if any other possible
construction remains.

Murray v. Schooner Charming Betsy
6 U.S. (2 Cranch) 74, 118 (1804).

The American Law Institute, linking this statement di-
rectly to international conventions, confirms that the prin-
ciple of the Charming Betsy remains the governing
principle. Section 114 of the Restatement of Foreign Re-
lations Law (supra) provides:

Where fairly possible, a United States statute is
to be construed so as not to conflict with inter-
national law or with an international agreement
of the United States.

Thus to the extent the contours of the discretionary ex-
emption to the Federal Tort Claims remain undefined,’
the-courts of the United States should so construe that
domestic law as to assure compliance with the treaty ob-
ligations of the United States, not only to Panama, but
to the more than 40 other state parties to the Convention.

It follows that this Court should not let stand, without
the most careful consideration, a characterization of action
(or inaction) by the United States as discretionary under
United States law, when it is clearly non-discretionary un-
der a treaty binding on the United States.

IIIl. THIS COURT SHOULD UPHOLD THE RIGHT OF PRI-
VATE CITIZENS TO BRING PRIVATE ACTIONS FOR
BREACH OF THE HAGUE CONVENTION AS CON-
TEMPLATED IN ARTICLE III OF THE CONVENTION.

It mignt be thought that the commands of the Hague
Convention, including Article 43 here invoked, Article 46,
prohibiting confiscation, Articles 28 and 47 prohibiting pil-

* See, e.g., the Zillman and Krent articles, note 9, supra.

EES

15

lage, and comparable provisions are addressed only to
states, without affording rights to individual claimants.
Such an interpretation of the Hague Convention, however,
would be contrary to the plain meaning of Article III of
the Convention as well as to the holdings of most courts
that have had to deal with suits involving the Convention.

Article III of the Hague Convention provides:

A belligerent party which violates the provi-
sions of said Regulations shall, if the case de-
mands, be liable to pay compensation
(indemnisation). It shall be responsible for all acts
committed by persons forming part of its armed
forces.

Joseph Choate, the eminent lawyer who was selected by
President Theodore Roosevelt to be chairman of the Amer-
ican delegation to the Second Hague Peace Conference,
reported to Secretary of State Elihu Root that the addition
of Article III was the major contribution of the conference
to the laws of war on land, correcting the gap left by the
1899 Hague Peace Conference, which had laid down ap-
propriate rules for the conduct of armed forces but had
failed to clearly establish a requirement of compensation
for breach of those rules. See Report of Delegates to Second
International Peace Conference, [1907] Papers Relating to
Foreign Relations of the United States, Vol. 2, p. 1157."

‘'s Ambassador Choate wrote:

The recent conference revised the convention of 1899, mod-
ified it in parts, and added various provisions in order to
render the codification as complete and thorough, as ac-
curate and scientific, as the changeable nature of the subject
will permit.

In one respect, however, the revised convention clearly sur-
passes its predecessor, for article 3 of the introduction sup-
plies a sanction for the violation of its provisions.

Id. at 1155, 1157.

16

Article 3 had two purposes: First, Article 3 made clear
that states could not hide behind the argument that their
forces had disobeyed orders. Liability was to be based on
the principle of respondeat superior, and without need to
prove either negligence or intent on the part of the state
itself. Second, Article 3 sought to provide individual victims
of violation of the Regulations with a cause of action
against the responsible state party to the Convention. The
sponsor of the amendment that became Article 3 explained
the intent of the article as follows:

It is a principle of private law that whoever, by
an act contrary to law, willfully or by negligence,
interferes with the rights of others, shall indem-
nify them for damage caused. This principle is
equally applicable in the law of nations and cer-
tainly in the cases involved here. However, we
cannot limit ourselves to acceptance of the theory
of “‘subjective fault’’, according to which the State
can be liable only if it is established that it was
negligent or failed to exercise control. The most
frequent case will be one in which negligence
cannot be attributed to the government itself. If,
in that case, the persons injured as a result of
an infringement of the Regulations could not de-
mand reparation from the government and were
compelled to take proceedings against the guilty
officer or soldier, they would more often than
not be deprived of the right to obtain the in-
demnity owing to them. We believe, therefore,
that, for an unlawful act by members of the
armed forces contravening the Regulations re-
sponsibility lies with their government."

Deuxiéme Conférence Internationale de la Paix, La Haye
15 Juin - 18 Octobre 1907, Actes et Documents, Vol. III,
p. 144-145 (1909). The proposal was unanimously adopted,

‘Translation from French in Yves Sandoz, Unlawful Damages in
Armed Conflicts and Redress under International Humanitanan Law,
Int'l Rev. Red Cross, No. 228, 131, 137 (May-June 1982).

17

with both the United States and Panama in the affirma-
tive. Id. Vol. I, p. 87, vol III, p. 627."

Both contemporaneous and current commentators on the
Hague Convention confirm that the drafters contemplated
direct action by injured persons against the government
of a state whose personnel acted contrary to the commands
of the Convention. Nowhere in the records of the Second
Hague Conference pertaining to Article 3 or in reports of
the delegates is there any mention of state espousal of
claims of injured private parties. A Belgian scholar whose
work on the Hague Convention was published in 1910
explained that

(Article 3] is justified in law, by the general prin-
ciples of responsibility, applicable in the law of
nations as in private law; and is justified in fact
... [because] relief would be illusory if it could
not be had against the government of the persons
[violating the Hague Regulations].

Albert Mechelynck, La Convention de la Haye concernant
les lois et coutumes de la guerre sur terre d’aprés les Actes
et documents des Conférences de Bruxelles de 1874 et de la
Haye de 1899 et 1907 p. 99 (Ghent 1915).

A recent study by an eminent Dutch scholar reached
the same conclusion:

[Article 3] is unmistakably designed to enable
these people [private claimants] to present their
bills directly to the State, i.e. to its competent
(military or other) authorities either during or
after the war.

Frits Kalshoven, ‘‘State Responsibility for Warlike Acts of
the Armed Forces: From Article 3 of Hague Convention

* A number of states voted yes with reservations; neither the United
States nor Panama made any reservation to its support for Article 3.

Si |

18

IV of 1907 to Article 91 of Additional Protocol of 1977
and Beyond,” 40 Int'l & Comp. L.Q. 827, 835-36 (1991)."°

While no case has been reported exactly on all fours
with the present action, a number of cases in other coun-
tries have upheld private claims depending on the Hague
Convention No. IV and breach of the annexed Regulation.
See, e.g., Bilotte v. Groos and the State of the Netherlands,
Dist. Ct. Arnhem, the Netherlands, June 24, 1948, [1951]
Nederlandse Jurisprudentie No. 261, [1949] Ann’l Digest
and Reports of Int'l Law Cases 493; Johansen v. Gross,
[1950] Norsk Rettstidende p. 326 (Norway), [1949] Ann’
Digest 481; P. v. A.G. K. and P., (Fed’] (Supreme) Ct.
Switzerland), [1948] Ann’] Digest 594; Dawson Bank Ltd.
v. Ko Sin Sein Burma, High Court Burma, Sept. 15, 1960,
Chief Court May 8, 1963, 36 Int’l L. Rep. 497. Perhaps
the closest case to the present one came before the
Supreme Court of France in 1934, arising out of the oc-
cupation by France of territory then under German sov-
ereignty, and requisition there of a saw mill belonging to
plaintiff. Havé v. State of France, [1935] 1 Sirey 249 (Cour
de Cassation, Ch. civ., 6 Feb. 1934), summarized in [1933-
34] Ann’l Digest & Reports of Public Int’] Law Cases 511.
France, the occupying power, had tendered compensation
to plaintiff for the property seized by its military forces,
but plaintiff considered the compensation inadequate within
the meaning of the Regulations annexed to the Hague
Convention. The former owner brought suit against the
State of France in an ordinary civil court; plaintiff did not
prevail on the merits, but no chailenge was raised or even
doubt expressed as to his standing to assert his claim for
violation of the Hague Convention directly against the oc-

‘* Professor Kalshoven, Professor of International Humanitarian Law
in Leiden University, goes on to contrast the intent of the drafters
with state practice under Article 3, and concludes that state practice
has proved disappointing, resulting ‘‘in its original meaning and purpose
receding into the background.” Id. at 836-37. The present case offers
an opportunity to restore Article 3 to its omginal meaning and purpose

19

cupying power.'* No case in any country has come to the
attention of the Government of Panama or its counsel
(other than the decisions in the present and related actions)
rejecting a private claim involving the protection of the
Hague Convention on the ground that the Convention does
not create a cause of action.'*

Of course not every state has provision in its domestic
law for suits against the government. When a state has
such a law, as the United States does, it would seem
entirely appropriate for its courts to entertain claims under
such a law, to demonstrate to the world community that
the United States continues in the forefront of respect for
international law.

This Court wrote about the Hague Convention 46 years
ago:

We do not make the laws of war, but we respect
them so far as they do not conflict with the com-
mands of Congress or the Constitution.

‘7 In a comment to the published report of the case, Professor Charles
Rousseau emphasized that the fundamental principle, upheld in the case,
was the principle of compensation (‘‘indemnisation’’) as set down in the
Convention. Id. at 251.

* The only court to so hold was the Court of Appeals for the Fourth
Circuit in one of the cases related to the present case, Goldstar (Pan-
ama) v. United States, 967 F.2d 965, 968 (4th Cir. 1992). The court
there stated:

International treaties are not presumed to create rights that
are privately enforceable. ... 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 rea-
sonable reading of the treaty as a whole does not lead to
the conclusion that the signatories intended to provide such
a mght.

As demonstrated by the sources cited above, this conclusion reflects a
misreading or misunderstanding of the Hague Convention, and should
not be permitted to stand unreviewed by this Court.

20

In re Yamashita, 327 US 1, 16 (1946). There is surely no
conflict between any command of Congress or the United
States Constitution and assertion in U.S. courts of claims
by citizens of Panama under the Hague Convention. At
minimum, this Court should grant review of the summary
disposition of this and companion cases by the lower U.S.
courts, so that the issues here only touched upon may
receive thorough exploration.

CONCLUSION

The late Judge Richard R. Baxter, the United States
member of the International Court of Justice, wrote that
“(t]he first line of defense against international humani-
tarian law is to deny that it applies at all.’’'* The effect
of the dismissal of the present cases on the basis of the
discretionary function exception to the Federal Tort Claims
Act or a misreading of the Hague Convention is a denial
that the obligation to secure public order and safety exists
at all. This Court should not permit such denial to stand
unreviewed and unexamined.

For the reasons stated, the petition for certiorari should
be granted.

Respectfully submitted

ANDREAS F. LOWENFELD
Counsel of Record

Theodor Meron

40 Washington Square South

New York, New York 10012
Counsel for the
Government of Panama
Amicus Curiae

October 1992
‘Richard R. Baxter, ‘‘Some Existing Problems of Humanitarian

Law,”’ in The Concept of International Armed Conflict: Further Out-
look, p. 1 at 2 ((Brussels 1974).

APPENDIX

——

la

APPENDIX

Hague Convention No. IV
Respecting the Laws and Customs of War on Land

18 October 1907
(36 Stat. 2277; Treaty Series No. 539: 1 Bevans 631.

[Here follows the list of Sovereigns and Heads of State
who sent Plenipotentiaries to the Conference. ]

Considering that, while seeking means to preserve peace
and prevent armed conflicts between nations, it is likewise
necessary to bear in mind the case where an appeal to
arms may be brought about by events which their solici-
tude could not avert:

Animated by the desire to serve, even in this extreme
case, the interests of humanity and the ever progressive
needs of civilization;

Thinking it important, with this object, to revise the
general laws and customs of war, either with a view to
defining them with greater precision or to confining them
within such limits as would mitigate their severity as far
as possible;

Have deemed it necessary to complete and render more
precise in certain particulars the work of the First Peace
Conference, which, following on the Brussels Conference
of 1874, and inspired by the ideas dictated by a wise and
generous forethought, adopted provisions intended to de-
fine and govern the usages of war on land.

According to the views of the High Contracting Parties,
these provisions, the wording of which has been inspired
by the desire to diminish the evils of war. so far as military
requirements permit, are intended to serve as a genera]
rule of conduct for the belligerents in their mutual rela-
tions and in their relations with the inhabitants.

2a

It has not, however, been found possible at present to
concert Regulations covering all the circumstances which
arise in practice;

On the other hand, the High Contracting Parties clearly
do not intend that unforeseen cases should, in the absence
of a written undertaking, be left to the arbitrary judgment
of military commanders.

Until a more complete code of the laws of war has been
issued, the High Contracting Parties deem it expedient to
declare that, in cases not included in the Regulations
adopted by them the inhabitants and the belligerents re-
main under the protection and the rule of the principles
of the law of nations, as they result from the usages es-
tablished among civilized peoples, from the laws of hu-
manity, and from the dictates of the public conscience.

They declare that it is in this sense especially that Ar-
ticles 1 and 2 of the regulations adopted must be under-
stood.

The High Contracting Parties, wishing to conclude a
fresh Convention to this effect, have appointed the follow-
ing as their Plenipotentiaries:

{Here follow the names of the Plenipotentiaries. ]
Who, after having deposited their full powers, found in
good and due form, have agreed upon the following:

ARTICLE 1.

The Contracting Powers shall issue instructions to their
armed land forces which shall be in conformity with the
Regulations respecting the Laws and Customs of War on
Land, annexed to the present Convention.

ARTICLE 2.

The provisions contained in the Regulations referred to
in Article 1, as well as in the present Convention, do not

3a

apply except between Contracting Powers, and then only
if all the belligerents are parties to the Convention.

ARTICLE 3.

A belligerent party which violates the provisions of the
said Regulations shall, if the case demands, be liable to
pay compensation. It shall be responsible for all acts com-
mitted by persons forming part of its armed forces.

ARTICLE 4.

The present Convention, duly ratified, shall replace as
between the Contracting Powers, the Convention of the
29th July, 1899, respecting the Laws and Customs of War
on Land.

The Convention of 1899 remains in force as between
the Powers which signed it, and which do not also ratify
the present Convention.

ARTICLE 5.

The present Convention shall be ratified as soon as pos-
sible.

The ratifications shall be deposited at The Hague.

The first deposit of ratifications shall be recorded in a
proces-verbal signed by the Representatives of the Powers
which take part therein and by the Netherland Minister
for Foreign Affairs.

The subsequent deposits of ratifications shall be made
by means of a written notification, addressed to the Neth-
erland Government and accompanied by the instrument of
ratification.

A duly certified copy of the procés-verbal relative to the
first deposit of ratifications, of the notifications mentioned
in the preceding paragraph, as well as of the instruments

————————

4a

of ratification, shall be immediately sent by the Netherland
Government, through the diplomatic channel, to the Pow-
ers invited to the Second Peace Conference, as well as to
the other Powers which have adhered to the Convention.
In the cases contemplated in the preceding paragraph the
said Government shall at the same time inform them of
the date on which it received the notification.

ARTICLE 6.

Non-Signatory Powers may adhere to the present Con-
vention.

The Power which desires to adhere notifies in writing
its intention to the Netherland Government, forwarding to
it the act of adhesion, which shall be deposited in the
archives of the said Government.

This Government shall at once transmit to all the other
Powers a duly certified copy of the notification as well as
of the act of adhesion, mentioning the date on which it
received the notification.

ARTICLE 7.

The present Convention shall come into force, in the
case of the Powers which were parties to the first deposit
of ratifications, sixty days after the date of the procés-
verbal of this deposit, and, in the case of the Powers which
ratify subsequently or which adhere, sixty days after the
notification of their ratification or of their adhesion has
been received by the Netherland Government.

ARTICLE 8.

In the event of one of the Contracting Powers wishing
to denounce the present Convention, the denunciation shall
be notified in writing to the Netherland Government, which
shall at once communicate a duly certified copy of the
notification to all the other Powers, informing them of the
date on which it was received.

The denunciation shall only have effect in regard to the
notifying power, and one year after the notification has
reached the Netherland Government.

ARTICLE 9.

A register kept by the Netherland Ministry for Foreign
Affairs shall give the date of the deposit of ratifications
made in virtue of Article 5, paragraphs 3 an 4, as well
as the date on which the notifications of adhesion (Article
6, paragraph 2) or of denunciation (Article 8, paragraph
1) were received.

Each Contracting Power is entitled to have access to
this register and to be supplied with duly certified extracts.

In faith of which the Plenipotentiaries have appended
their signatures to the present Convention.

Done at The Hague, the 18th October, 1907. in a single
original, which shall remain deposited in the archives of
the Netherland Government, and duly certified copies of
which shall be sent, through the diplomatic channel. to the
Powers which have been invited to the Second Peace Con-
ference.

(Here follow signatures. ]

ANNEX TO THE CONVENTION.
REGULATIONS RESPECTING THE LAWS AND
CUSTOMS OF WAR ON LAND

SECTION I. ON BELLIGERENTS.
CHAPTER I. The Qualifications of Belligerents.

ARTICLE 1.

The laws, rights, and duties of war apply not only to
armies, but also to militia and volunteer corps fulfilling
the following conditions:

1. To be commanded by a person responsible for his
subordinates;

6a

2. To have a fixed distinctive emblem recognizable at a
distance;

3. To carry arms openly; and

4. To conduct their operations in accordance with the
laws anc customs of war.

In countries where militia or volunteer corps constitute
the army, or form part of it, they are included under the
denomination ‘‘army.”’

ARTICLE 2.

The inhabitants of a territory which has not been oc-
cupied, who, on the approach of the enemy, spontaneously
take up arms to resist the invading troops without having
had time to organize themselves in accordance with Article
1, shall be regarded as belligerents if they carry arms
openly and if they respect the laws and customs of war

ed

ARTICLE 3.

The armed forces of the belligerent parties may consist
of combatants and noncombatants. In the case of capture
by the enemy, both have a right to be treated as prisoners
of war.

CHAPTER II. Prisoners of War.

ARTICLE 4.

Prisoners of war are in the power of the hostile Gov-
ernment, but not of the individuals or corps who capture
them.

They must be humanely treated.

All their personal belongings, except arms, horses, and
military papers, remain their property.

ARTICLE 5.

Prisoners of war may be interned in a town, fortress,
camp, or other place, under obligation not to go beyond
certain fixed limits; but they can only be placed in con-
finement as an indispensable measure of safety and only
while the circumstances which necessitate the measure
continue to exist.

ARTICLE 6.

The State may utilize the labour of prisoners of war
according to their rank and aptitude, officers excepted.
The tasks shall not be excessive and shall have no con-
nection with the operations of the war.

Prisoners may be authorized to work for the public ser-
vice, for private persons, or on their own account.

Work done for the State is paid at the rates in force
for work of a similar kind done by soldiers of the national
army, or, if there are none in force, at a rate according
to the work executed.

When the work is for other branches of the public ser-
vice or for private persons the conditions are settled in
agreement with the military authorities.

The wages of the prisoners shal! go towards improving
their position, and the balance shail be paid them at the
time of their release, after deducting the cost of their
maintenance.

ARTICLE 7.

The Government into whose hands prisoners of war have
fallen is charged with their maintenance.

In the absence of a special agreement between the bel-
ligerents, prisoners of war shall be treated as regards food,
quarters, and clothing on the same footing as the troops
of the Government who captured them.

8a

ARTICLE 8.

Prisoners of war shall be subject to the laws, regula-
tions, and orders in force in the army of the State in
whose power they are. Any act of insubordination justifies
the adoption towards them of such measures of severity
as may be considered necessary.

Escaped prisoners who are retaken before being able to
rejoin their own army or before leaving the territory oc-
cupied by the army which captured them are liable to
disciplinary punishment.

Prisoners who, after succeeding in escaping, are again
taken prisoners, are not liable to any punishment on ac-
count of the previous flight.

ARTICLE 9.

Every prisoner of war is bound to give, if he is ques-
tioned on the subject, his true name and rank, and if he
infringes this rule. he is iiable to have curtailment of the
advantages accorded to prisoners of his class.

ARTICLE 10.

Prisoners of war may be set at liberty on parole if the
laws of their country allow, and, in such cases, they are
bound, on their personal honour, scrupulously to fulfil, both
towards their own Government and the Government by
whom they were made prisoners, the engagements they
have contracted.

In such cases their own Government is bound neither
to require of nor accept from them any service incom-
patible with the parole given.

ARTICLE 11.

A prisoner of war can not be compelled to accept his
liberty on parole; similarly the hostile Government is not

|

9a

obliged to accede to the request of the prisoner to be set
at liberty on parole.

ARTICLE 12.

Prisoners of war liberated on parole and recaptured
bearing arms against the Government to whom they had
pledged their honour, or against the allies of that Gov-
ernment, forfeit their right to be treated as prisoners of
war, and can be brought before the Courts.

ARTICLE 13.

Individuals who follow an army without directly belong-
ing to it, such as newspaper correspondents and reporters,
sutlers and contractors, who fall into the enemy’s hands
and whom the latter thinks fit to detain, are entitled to
be treated as prisoners of war, provided they are in pos-
session of a certificate from the military authorities of the
army which they were accompanying.

ARTICLE 14.

An information bureau for prisoners of war is instituted
on the commencement of hostilities in each of the bellig-
erent States, and, when necessary, in neutral countries
which have received belligerents in their territory. The
function of this bureau is to reply to all inquiries about
the prisoners, to receive from the various services con-
cerned all the information respecting internments and
transfers, releases on parole, exchanges, escapes, admis-
sions into hospital, deaths, as well as other information
necessary to enable it to make out and keep up to date
an individual return for each prisoner of war. The bureau
must state in this return the regimental number, name
and surname, age, place of origin, rank, unit, wounds, date
and place of capture, internment, wounding, and death, as
well as any observations of a special charter. The individ-
ual return shall be sent to the Government of the other
belligerent after the conclusion of peace.

‘i

10a

It is likewise the function of the information bureau to
receive and collect all objects of personal use, valuables,
letters, etc., found on the field of battle or left by prisoners
who have been released on parole, or exchanged, or who
have escaped, or died in hospitals or ambulances, and to
forward them to those concerned.

ARTICLE 15.

Relief societies for prisoners of war, which are properly
constituted in accordance with the laws of their country
and with the object of serving as the channel for charitable
effort shall receive from the belligerents, for themselves
and their duly accredited agents every facility for the ef-
ficient performance of their humane task within the bounds
imposed by military necessities and administrative regu-
lations. Agents of these societies may be admitted to the
places of internment for the purpose of distributing relief,
as also to the halting places of repatriated prisoners, if
furnished with a personal permit by the military
authorities, and on giving an undertaking in writing to
comply with all measures of order and police which the
latter may issue.

ARTICLE 16.

Information bureaus enjoy the privilege of free postage.
Letters, money orders, and valuables, as well as parcels
by post, intended for prisoners of war, or dispatched by
them, shall be exempt from all postal duties in the coun-
tries of origin and destination, as well as in the countries
they pass through.

Presents and relief in kind for prisoners of war shall
be admitted free of all import or other duties, as well as
of payments for carriage by the State railways.

ARTICLE 17.

Officers taken prisoners~shall receive the same rate of
pay as officers of corresponding rank in the country where

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they are detained, the amount to be ultimately refunded
by their own Government.

ARTICLE 18.

Prisoners of war shall enjoy complete liberty in the ex-
ercise of their religion, including attendance at the services
of whatever Church they may belong to, on the sole con-
dition that they comply with the measures of order and
police issued by the military authorities.

ARTICLE 19.

The wills of prisoners of war are received or drawn up
in the same way as for soldiers of the national army.

The same rules shall be observed regarding death cer-
tificates as well as for the burial of prisoners of war; due
regard being paid to their grade and rank.

ARTICLE 20.

After the conclusion of peace, the repatriation of pris-
oners of war shall be carried out as quickly as possible.
CHAPTER III. The Sick and Wounded.

ARTICLE 21.

The obligations of belligerents with regard to the sick
and wounded are governed by the Geneva Convention.
SECTION II. HOSTILITIES.

CHAPTER I. Means of Injuring the Enemy, Sieges, and
Bombardments.

ARTICLE 22.

The right of belligerents to adopt means of injuring the
enemy is not unlimited.

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ARTICLE 23.

In addition to the prohibitions provided by special Con-
ventions, it is especially forbidden—

a. To employ poison or poisoned weapons;

6. To kill or wound treacherously individuals belonging
to the hostile nation or army.

c. To kill or wound an enemy who, having laid down
his arms, or having no longer means of defence, has sur-
rendered at discretion;

d. To declare that no quarter will be given;

e. To employ arms, projectiles, or material calculated to
cause unnecessary suffering;

J. To make improper use of a flag of truce, of the na-
tional flag, or of the military insignia and uniform of the
enemy, as well as the distinctive badges of the Geneva
Convention;

g. To destroy or seize the enemy’s property, unless such
destruction or seizure be imperatively cemanded by the
necessities of war;

h. To declare abolished, suspended, or :nadmissible in a
Court of law the rights and actions of the nationals of the
hostile party.

A belligerent is likewise forbidden to compel the na-
tionals of the hostile party to take part in the operations
of war directed against their own country, even if they
were in the belligerent’s service before the commencement
of the war.

ARTICLE 24.

Ruses of war and the employme.:t of measures neces-
sary for obtaining information about the enemy and the
country are considered permissible.

ieee meneame

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ARTICLE 25.

The attack or bombardment, by whatever means, of
towns, villages, dwellings, or buildings which are unde-
fended is prohibited.

ARTICLE 26.

The officer in command of an attacking force must,
before commencing a bombardment, except in cases of
assault, do all in his power to warn the authorities.

ARTICLE 27.

In sieges and bombardments all necessary measures must
be taken to spare, as far as possible, buildings dedicated
to religion, art, science, or charitable purposes, historic
monuments, hospitals, and places where the sick and
wounded are collected, provided they are not being used
at the time for military purposes.

It is the duty of the besieged to indicate the presence
of such buildings or places by distinctive and visible signs,
which shall be notified to the enemy beforehand.

ARTICLE 28.

The pillage of a town or place, even when taken by
assault, is prohibited.

CHAPTER II. Spies.
ARTICLE 29.

A person can only be considered a spy when, acting
clandestinely or on false pretences, he obtains or endea-
vours to obtain information in the zone of operations of
a belligerent, with the intention of communicating it to
the hostile party.

Thus, soldiers not wearing a disguise who have pene-
trated into the zone of operations of the hostile army, for

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the purpose of obtaining information, are not considered
spies. Similarly, the following are not considered spies:
Soldiers and civilians, carrying out their mission openly,
intrusted with the delivery of despatches intended either
for their own army or for the enemy’s army. To this class
belong likewise persons sent in balloons for the purpose
of carrying despatches and, generally, of maintaining com-
munications between the different parts of an army or a
territory.

ARTICLE 30.

A spy taken in the act shall not be punished without
previous trial.

ARTICLE 31.

A spy who, after rejoining the army to which he belongs,
is subsequently captured by the enemy, is treated as a
prisoner of war, and incurs no respensibility for his pre-
vious acts of espionage.

CHAPTER III. Parlementaires.
ARTICLE 32.

A person is regarded as a parlementaire who has been
authorized by one of the belligerents to enter into com-
munication with the other, and who advances bearing a
white flag. He has a right to inviolability, as well as the
trumpeter, bugler or-drummer, the flag-bearer and inter-
preter who may accompany him.

ARTICLE 33.

The commander to whom a parlementaire is sent is not
in all cases obliged to receive him.

He may take all the necessary steps to prevent the
parlementaire taking advantage of his mission to obtain
information.

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In case of abuse, he has the right to detain the parle-
mentaire temporarily.

ARTICLE 34.

The parlementaire loses his rights of inviolability if it
is proved in a clear and incontestable manner that he has
taken advantage of his privileged position to provoke or
commit an act of treachery.

CHAPTER IV. Capitulations.
ARTICLE 35.

Capitulations agreed upon between the contracting par-
ties must take into account the rules of military honour.

Once settled, they must be scrupulously observed by
both parties.

CHAPTER V. Armistices.
ARTICLE 36.

An armistice suspends military operations by mutual
agreement between the belligerent parties. If its duration
is not defined, the belligerent parties may resume oper-
ations at any time, provided always that the enemy is
warned within the time agreed upon, in accordance with
the terms of the armistice.

ARTICLE 37.

An armistice may be general or local. The first suspends
the military operations of the belligerent States every-
where; the second only between certain fractions of the
belligerent armies and within a fixed radius.

ARTICLE 38.

An armistice must be notified officially and in good time
to the competent authorities and to the troops. Hostilities

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are suspended immediately after the notification, or on the
date fixed.

ARTICLE 39.

[t rests with the contracting parties to settle, in the
terms of the armistice, what communications may be held
in the theatre of war with the inhabitants and between
the inhabitants of one belligerent State and those of the
other.

ARTICLE 40.

Any serious violation of the armistice by one of the
parties gives the other party the right of denouncing it,
and even, in cases of urgency, of recommencing hostilities
immediately.

ARTICLE 41.

A violation of the terms of the armistice by private
persons acting on their own initiative only entitles the
injured party to demand the punishment of the offenders
or, if necessary; compensation for the losses sustained.

SEcTION III MILITARY AUTHORITY OVER THE TERRITORY
OF THE HOSTILE STATE.

ARTICLE 42.

Territory is considered occupied when it is actually
placed under the authority of the hostile army.

The occupation extends only to the territory where such
authority has been established and can be exercised.

ARTICLE 43.

The authority of the legitimate power having in fact
passed into the hands of the occupant, the latter shall take
all the measures in his power to restore, and ensure, as

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far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the coun-
try.

ARTICLE 44.

A belligerent is forbidden to force the inhabitants of
occupied territory to furnish information about the army
of the other belligerent, or about its means of defence.

ARTICLE 45.

It is forbidden to compel the inhabitants of occupied
territory to swear allegiance to the hostile Power.

ARTICLE 46.

Family honour and rights, the lives of persons, and pri-
vate property, as well as religious convictions and practice,
must be respected.

Private property cannot be confiscated.

ARTICLE 47.

Pillage is formally forbidden.

ARTICLE 48.

If, in the territory occupied, the occupant collects the
taxes, dues, and tolls imposed for the benefit of the State,
he shall do so, as far as is possible in accordance with the
rules of assessment and incidence in force, and shall in
consequence be bound to defray the expenses of the admin-
istration of the occupied territory to the same extent as
the legitimate Government was so bound.

ARTICLE 49.

If, in addition to the taxes mentioned in the above Ar-
ticle, the occupant levies other money contributions in the

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occupied territory, this shall only be for the needs of the
army or of the administration of the territory in question.

ARTICLE 50.

No general penalty, pecuniary or otherwise, shall be
inflicted upon the population on account of the acts of
individuals for which they cannot be regarded as jointly
and severally responsible.

ARTICLE 51. ;

No contribution shall be collected except under a written
order, and on the responsibility cf a Commander-in-chief.

The collection of the said contribution shall only be ef-
fected as far as possible in accordance with the rules of
assessment and incidence of the taxes in force.

For every contribution a receipt shall be given to the
contributors.

ARTICLE 52.

Requisitions in kind and services shall not be demanded
from municipalities or inhabitants except for the needs of
the army of occupation. They shall be in proportion to the
resources of the country, and of such a nature as not to
involve the population in the obligation of taking part in
operations of the war against their country.

Such requisitions and services shall only be demanded
on the authority of the commander in the locality occupied.

Contributions in kind shall as far as possible be paid
for in cash; if not, a receipt shall be given and the payment
of the amount due shall be made as soon as possible.

ARTICLE 53.

An army of occupation can only take possession of cash,
funds, and realizable securities which are strictly the prop-

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erty of the State, depéts of arms, means of transport,
stores and supplies, and, generally, all movable property
belonging to the State which may be used for operations
of the war.

All appliances, whether on land, at sea, or in the air,
adapted for the transmission of news, or for the transport
of persons or things, exclusive of cases governed by naval
law, depots of arms, and, generally, all kinds of ammu-
nition of war, may be seized, even if they belong to private
individuals, but must be restored and compensation fixed
when peace is made. -

ARTICLE 54.

Submarine cables connecting an occupied territory with
a neutral territory shall not be seized or destroyed except
in the case of absolute necessity. They must likewise be
- restored and compensation fixed when peace is made.

ARTICLE 55.

The occupying State shall be regarded only as admin-
istrator and usufructuary of public buildings, real estate,
forests, and agricultural estates belonging to the hostile
State, and situated in the occupied country. It must safe-
guard the capital of these properties, and administer them
in accordance with the rules of usufruct.

ARTICLE 56.

The property of municipalities, that of institutions ded-
icated to religion, charity and education, the arts and sci-
ences, even when State property, shall be treated as
private property.

All seizure or destruction of, or wilful damage to, in-
stitutions of this character, historic monuments, works of
art and science, is forbidden, and should be made the
subject of legal proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1242%3A2. Public record. Not legal advice.