Professional Documents
Culture Documents
Erik V. Koppe
1. Introduction
2. The Relationship between Jus ad Bellum and Jus in Bello
3. Compensation for War Damages under Jus ad Bellum
4. The Findings of the Eritrea Ethiopia Claims Commission
5. Conclusion
1. Introduction
Between 1998 and 2000 Eritrea and Ethiopia fought a bloody war over a territorial
dispute killing tens of thousands of people and causing millions of dollars of dam-
ages. After the cessation of the hostilities parties agreed to settle their differences
by means of arbitration and signed a treaty in Algiers on 12 December 2000.1
Pursuant to this agreement, parties established a Boundary Commission ‘to delimit
and demarcate the colonial treaty border based on pertinent colonial treaties (1900,
1902 and 1908) and applicable international law’ (Art. 4) as well as, in Article 5, a
Claims Commission
‘... to decide through binding arbitration all claims for loss, damage or injury by one
Government against the other, and by nationals (including both natural and juridical
persons) of one party against the Government of the other party or entities owned or
controlled by the other party that are (a) related to the conflict that was the subject of
the Framework Agreement, the Modalities for its Implementation and the Cessation of
Hostilities Agreement, and (b) result from violations of international humanitarian law,
including the 1949 Geneva Conventions, or other violations of international law’.
After dealing with the damages for violations of jus in bello first, the Eritrea Ethio-
pia Claims Commission established on 17th December 2005 that Eritrea had started
the hostilities on 12th May 1998 and held that Eritrea had therefore violated Article
2(4) of the Charter of the United Nations. The scope of damages for which Eritrea
would be liable because of its violation of jus ad bellum would be determined in
1 Agreement between the Governments of the State of Eritrea and the Federal Democratic Repub-
A. de Guttry, H.H.G. Post and G. Venturini (eds.), The 1998-2000 War between Eritrea and Ethiopia
© 2009, T.M.C.ASSER PRESS, The Hague, The Netherlands and the Authors
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418 erik v. koppe
2
Eritrea Ethiopia Claims Commission, Partial Award; Jus ad Bellum – Ethiopia’s Claims 1-8
(December 19, 2005) p. 7. At <www.pca-cpa.org>.
3
Eritrea Ethiopia Claims Commission, Decision No. 7: Guidance Regarding Jus ad Bellum
Liability (July 27, 2007). At <www.pca-cpa.org>.
4 L. Doswald-Beck, ‘International Humanitarian Law and the Advisory Opinion of the Interna-
tional Court of Justice on the Legality of the Threat or Use of Nuclear Weapons’, 79 IRRC 316 (1997)
p. 53.
5
T. Gill, ‘The Nuclear Weapons Advisory Opinion of the International Court of Justice and the
Fundamental Distinction between the Jus ad Bellum and the Jus in Bello’, 12 LJIL (1999) p. 614.
6 Cf., H. Grotius, De Iure Belli ac Pacis, The Classics of International Law (Oxford, Clarendon
Press 1925) Book II, which focuses on the reasons for waging war.
7
R. Kolb, ‘Origin of the twin terms jus ad bellum/jus in bello’, 79 IRRC 320 (1997) p. 553.
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compensation for war damages under JUS AD BELLUM 419
After the renunciation of war in 1928,12 and the prohibition of the use of force13
and the criminalization of wars of aggression in 1945,14 equal application of jus in
8 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, signed on 12 August 1949, entered into force on 21 October 1950, 75
UNTS, No. 970; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, signed on 12 August 1949, entered into force on 21
October 1950, Ibid., No. 971; Geneva Convention (III) relative to the Treatment of Prisoners of War,
signed on 12 August 1949, entered into force on 21 October 1950, Ibid., No. 972; Geneva Convention
(IV) relative to the Protection of Civilian Persons in Time of War, signed on 12 August 1949, entered
into force on 21 October 1950, Ibid., No. 973.
9 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec-
tion of Victims of International Armed Conflicts, opened for signature on 12 December 1977, entered
into force on 7 December 1978, 1125 UNTS No. 17512.
10 Emphasis added.
11 Emphasis added. See also paragraph 6 of the non-binding, yet authoritative 1994 San Remo
Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge, Cambridge Universi-
ty Press 1995), which provides: ‘The rules set out in this document and any other rules of international
humanitarian law shall apply equally to all parties to the conflict. The equal application of these rules
to all parties to the conflict shall not be affected by the international responsibility that may have been
incurred by any of them for the outbreak of the conflict.’
12 Art. I of the Pact of Paris, or Kellogg-Briand Pact; Treaty between the United States and Other
Powers Providing for the Renunciation of War as an Instrument of National Policy, signed on 27
August 1928, entered into force on 24 July 1929, 22 AJIL (1928) No. 4, Supplement: Official Docu-
ments, p. 171.
13 Art. 2(4) Charter of the United Nations, United Nations Charter, signed on 26 June 1945, en-
tered into force on 24 October 1945, 39 AJIL (1945) No. 3, Supplement: Official Documents, p. 190.
See for extensive recent studies on Art. 2(4): N. Schrijver, ‘Article 2; Paragraphe 4’, in: J.-P. Cot and
A. Pellet, eds., La Charte des Nations Unies; Commentaire article par article, Vol. I (Paris, Econom-
ica 2005) and A. Randelzhofer, ‘Article 2 (4)’, in B. Simma, ed., The Charter of the United Nations;
A Commentary (Oxford, Oxford University Press 2002.
14 Art. 6(a) of the Charter of the International Military Tribunal at Nuremberg, Agreement be-
tween the Government of the United States of America, the Provisional Government of the French
Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Gov-
ernment of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major
War Criminals of the European Axis, with annexed Charter of the International Military Tribunal,
signed on 8 August 1945, entered into force on 8 August 1945, 39 AJIL (1945) No. 4, Supplement:
Official Documents, p. 257. See also Arts. 5(1)(d) and 5(2) of the Rome Statute. Rome Statute of the
International Criminal Court, opened for signature on 17 July 1998, entered into force 1 July 2002,
2187 UNTS No. 38544.
bello has come under pressure, however. Dinstein refers to two general arguments
used against equal application. The first argument was taken up by the prosecution
in the Nuremberg trial and rested on the contention that every military activity
that was criminal in nature, such as killing of people and destruction of property,
was only justified by the fact that they are fighting a lawful war for legitimate rea-
sons. The second argument is related to the maxim ex iniuria jus non oritur, which
means that you cannot benefit from rights that result from illegal activities.15 Both
arguments were rejected by the United States Military Tribunal at Nuremberg, by
the Dutch post-World War II Special Court and Court of Cassation, and by the
international community of states, as apparent from the 1949 Geneva Conventions
and Protocol, both for practical and theoretical reasons.16
Despite general acceptance of the principle of equal application of jus in bello
to all belligerents, both in treaty and in case-law, it has often been subject of re-
search and a number of attempts have been made to limit its scope and to deviate
from this standard. In 1939, the Harvard Research in International Law suggested,
for example, with respect to equal application, to distinguish between rules on
the conduct of hostilities and other rules of jus in bello.17 In 1953, Lauterpacht
proposed to let go of equal application after the end of hostilities with respect to
title over property.18 And in 1963, the Institut de Droit International or Institute
of International Law decided to accept the principle of unequal treatment of bel-
ligerents in case the Security Council has labeled one of the parties as ‘aggressor’
or in case of collective action by United Nations forces based on a decision of the
Security Council.19
15
Y. Dinstein, War, Aggression and Self-Defence (Cambridge, Cambridge University Press 2005)
pp. 156-157. See Greenwood’s rebuttal of this argument by nuancing the concept of ‘belligerent
rights.’ Although it is true that certain rules of jus in bello can be analyzed that way, ‘[t]he purpose of
the humanitarian rules which comprise the bulk of jus in bello is not to confer benefits upon the par-
ties to a conflict but to protect individuals and to give expression to concepts of international public
policy.’ Only property rights by a belligerent occupant and the law of neutrality confer legal rights, and
must therefore be regarded as exceptions, according to Greenwood. C. Greenwood, ‘The relationship
between jus ad bellum and jus in bello’, 9 Review of International Studies (1983) pp. 227-230.
16 Dinstein, op. cit. n. 15, at pp. 157-159; H. Lauterpacht, ‘The Limits of the Operation of the Law
of War’, 30 BYIL (1953) pp. 211-224. Similarly, Greenwood, loc. cit. n. 15, at p. 226; C. Greenwood,
‘International Humanitarian Law (Laws of War)’, Revised Report for the Centennial Commemoration
of the First Hague Peace Conference 1899 (London, School of Economics and Political Science 1999)
pp. 16-18.
17
Arts. 2-4 and 14 of the Draft Convention on Rights and Duties of States in Case of Aggression,
33 AJIL (1939) Supplement: Research in International Law, p. 828. Dinstein, op. cit. n. 15, at p. 158.
18
Lauterpacht, loc. cit. n. 16, at pp. 24-233, 239; Dinstein, op. cit. n. 15, at p. 158. See also
Greenwood’s discussion of the arguments against equal application: Greenwood, op. cit. n. 15, at pp.
226-230.
19 Résolution I reads: ‘L’inégalité de traitement des parties durante bello est justifiée si le Conseil
de Sécurité de l’O.N.U. a désigné l’une des parties comme agresseur et pourvu que cette inégalité de
traitement ne dépasse pas les limites indiquées par les Résolutions suivantes.’ And Résolution II reads:
‘Sous réserve des stipulations des Résolutions qui suivent, l’inégalité de traitement est également
justifiée quand il s’agit d’une action militaire des forces de l’O.N.U. opérant en vertu d’une décision
du Conseil de Sécurité.’ J.P.A. François, ‘L’égalité d’application des règles du droit de la guerre aux
parties à un conflit armé (Quatrième Commission) 2. Rapport définitif’, 50-I Annuaire de l’Institut de
Despite strong opposition, this conclusion was repeated in dictum 2E, which was
adopted only by the President’s casting vote.21
If the Court’s judgment is to be understood as implying that any use of force,
including the use of nuclear weapons, needs to comply with both jus ad bellum and
jus in bello in order to be legal under public international law, then its statement
is only comprehensive and in conformity with pre-existing doctrine.22 The Court
does seem to point into that direction within the framework of its discussion of the
Droit International (1963) pp. 111-127. Dinstein, op. cit. n. 15, at pp. 158-159. Similarly, Lauterpacht,
op. cit. n. 16, at pp. 242-243.
20 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8th July 1996, ICJ Rep.
of nuclear weapons would generally be contrary to the rules of international law applicable in armed
conflict, and in particular the principles and rules of humanitarian law; However, in view of the cur-
rent state of international law, and of the elements of fact at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme
circumstance of self-defence, in which the very survival of the State would be at stake.’ Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, loc. cit. n. 20, at p. 44.
22 Similarly: C. Greenwood, ‘Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory
Opinion’, in L. Boisson de Chazournes and P. Sands, eds., International Law, the International Court
of Justice and Nuclear Weapons (Cambridge, Cambridge University Press 1999) p. 263. See also
Greenwood, loc. cit. n. 15, at pp. 229, 232-233. Greenwood refers, among other things, to the United
States Military Tribunal in The United States v. List which held that ‘the entire German occupation of
the Balkans was a violation of the jus ad bellum, so that everything which the occupying authorities
did was contrary to international law, but when they exceeded the limits of an occupant’s authority un-
der the jus in bello they committed a double illegality.’ United States Military Tribunal (Nuremberg),
Case No. 47; The Hostages Trial; Trial of Wilhelm List and Others; 8th July, 1947-19th February,
1948, in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals; Vol.
VIII, (London, His Majesty’s Stationery Office 1949). According to Müllerson, the word ‘generally’
may indeed be understood as implying that the only exception possible for the use of nuclear weapons
is in case of self-defense, but ‘[s]uch an interpretation (…) raises questions and it is not clear at all
that the Court had this in mind’. R. Müllerson, ‘On the Relationship between Jus ad Bellum and Jus
threat or use of nuclear weapons in the light of the Charter of the United Nations.23
The Court indicates that although the provisions on the use of force are applicable
irrespective of the weapons used,24 ‘a use of force that is proportionate under the
law of self-defence, must, in order to be lawful also meet the requirements of the
law applicable in armed conflict which comprise in particular the principles and
rules of humanitarian law’.25
Although it is possible that the customary requirement of proportionality under
the law of self-defense makes it highly unlikely that nuclear weapons could be used
under other than extreme circumstances, i.e., when the survival of the state is not at
stake,26 the Court’s references to jus ad bellum in this context is certainly confus-
ing and unfortunate, and has therefore been severely criticized in literature.27 After
all, the question as to the legality or illegality of the use of a particular weapon is
preeminently a question of jus in bello, and has in principle nothing to do with the
law on the use of force.
However, the Court does seem to suggest that an ‘extreme circumstance of self-
defence, in which the very survival of a State would be at stake’ is an important and
even determinative factor on whether or not the use of nuclear weapons is lawful
or not.28 This interpretation is furthermore confirmed by Judge Fleischhauer, who
writes in his Separate Opinion:
‘To end the matter with the simple statement that recourse to nuclear weapons would
be contrary to international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law, would have meant that the law applicable
in armed conflict, and in particular the humanitarian law, was given precedence over
the inherent right of individual or collective self-defence which every State possesses
as a matter of sovereign equality and which is expressly preserved in Article 51 of
the Charter. That would be so because if a State is the victim of an all out attack by
another State, which threatens the very existence of the victimized State, recourse to
the threat or use of nuclear weapons in individual (…) or collective (…) self-defence
could be for the victimized State the last and only alternative to giving itself up and
surrender. That situation would in particular exist if the attack is made by nuclear, bac-
teriological or chemical weapons. It is true that the right of self-defence as protected
by Article 51 of the Charter is not weapon-specific (…). Nevertheless, the denial of the
recourse to the threat or use of nuclear weapons as a legal option in any circumstance
in Bello in the General Assembly Advisory Opinion’, in Boisson de Chazournes and Sands, op. cit.,
at p. 269.
23
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, loc. cit. n. 20, paras.
37-49 at pp. 244-247.
24 Ibid., para. 39, at p. 244.
25 Ibid., para. 42, at p. 245.
26 According to Müllerson, an aggressor state ‘has limited its right to survival’, because it has
could amount to a denial of self-defence itself if such recourse was the last available
means by way of which the victimized State could exercise its right under Article 51 of
the Charter. A finding that amounted to such a denial therefore would not, in my view,
have been a correct statement of the law; there is no rule in international law according
to which one of the conflicting principles would prevail over the other. The fact that
the attacking State itself would act in contravention of international law, would not
alter the situation.’29
29 Separate Opinion of Judge Fleischhauer, Legality of the Threat or Use of Nuclear Weapons,
necessities of self-defence to override the principles of humanitarian law would put at risk all the prog-
ress in that law which has been made in the last hundred years or so and raise the spectre of a return to
theories of the “just war” and the maxim embodied in the German proverb that Kriegsraison geht vor
Kriegsmanier (“necessity in war overrules the manner of warfare”).’
32 Although, it is unlikely that in view of the status of jus in bello nowadays the reasons for going
to war will ever determine the scope of a state’s responsibilities under the rules of combat as was the
case under the bellum justum doctrine, but it cannot be excluded. Gill, for example, finds it ‘perhaps
most disturbing, (…) the way the Court introduces the notion that an extra-legal concept like ‘the sur-
vival of the state’ could override the rules and principles of the jus in bello.’ Gill, loc. cit. n. 5, at p. 623.
33 An aggressor state would lose all interest in complying with the laws of war if it were held
Despite the distinct and separate responsibilities under jus ad bellum and jus in
bello, Greenwood wrote in 1983 that both sets of rules are ‘closer today than they
have been for over two centuries’ and while they operated ‘at different stages’ in
the past, ‘they now apply simultaneously’. Still
‘... they remain distinct branches of international law, not merely for historical reasons,
but because they are logically independent of each other, operate in different ways,
with different degrees of precision and different sanctions. They are separate but com-
plementary systems of rules, which are capable of being studied and applied separately
but which must both be considered in evaluating the legality of a state’s use of force.’36
It is even arguable that the responsibilities under both sets of rules overlap or con-
verge under certain circumstances. This is certainly arguable with respect to the
application of the principles of necessity and proportionality under the law self-
defense; and this is possible with respect to the compensation for war damages.
Firstly, it has generally been established that states need to observe the princi-
ples of necessity and proportionality in their overall conduct of hostilities under
the law of self-defense.37 These principles are obviously related but certainly not
identical to the principles of necessity and proportionality under jus in bello. Under
jus in bello, the principle of (military) necessity reflects the notion that the ‘only
legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy’ and for that purpose it is ‘sufficient to
disable the greatest possible number of men’. The principle of proportionality fol-
lows directly from the principle of necessity and reflects the idea that the civilian
population must be spared the consequences of warfare as much as possible.38
Under jus ad bellum, the obligation to observe the principles of necessity and
proportionality means that they can only use force to the extent necessary and
proportionate to repel an armed attack.39 If the measures taken by the state using
36 Greenwood, loc. cit. n. 15, at pp. 232-233. See Boelaert-Suominen’s discussion on the relation-
ship between jus ad bellum and jus in bello. She distinguishes between two schools of thought. The
first school claims that both sets of rules apply simultaneously under the UN Charter. The second
school believes that ‘punishment for the use of force in contravention of jus ad bellum, regardless of
its legality under the jus in bello, inevitably leads to an erosion of the jus in bello’. S.A.J. Boelaert-
Suominen, ‘Iraqi War Reparations and the Laws of War: A Discussion of the Current Work of the
United Nations Compensation Commission with Specific Reference to Environmental Damage Dur-
ing Warfare’, 50 Zeitschrift für öffentliches Recht (1996) pp. 298-302.
37
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, 27th June 1986, ICJ Rep. (1986) p. 14, para. 194, p. 103; Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, loc. cit. n. 20, p. 226, para. 41, p. 240; Case
Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment,
6th November 2003, ICJ Rep. (2003) para. 43, 74, 76, pp. 24, 35, 37; Case Concerning Armed Activi-
ties on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Merits, Judgment,
19th December 2005, ICJ Rep. 2005, para. 147, p. 53.
38
St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under
400 Grammes Weight., entered into force on 11th December 1868. At <www.icrc.org/ihl.nsf>.
39 Cf., paragraph 4 of the 1994 San Remo Manual which reads: ‘The principles of necessity and
proportionality apply equally to armed conflict at sea and require that the conduct of hostilities by a
State should not exceed the degree and kind of force, not otherwise prohibited by the law of armed
conflict, required to repel an armed attack against it and to restore its security.’ See Doswald-Beck,
loc. cit. n. 4; Greenwood, loc. cit. n. 15, at pp. 223-224; and loc. cit. n. 22, at pp. 258-259; and loc. cit.
n. 16, at pp. 23-25.
40 According to Gardam, ‘[c]urrent international law represents the view of states that the overall
evil of war always outbalances the good except in cases of self-defence. This process of balance is
continued in the legal requirements of necessity and of proportionality for a legitimate exercise of the
right of self-defence’. J. Gardam, ‘Necessity and Proportionality in Jus ad Bellum and Jus in Bello’,
in Boisson de Chazournes and Sands, eds., op. cit. n. 22, at p. 277. See also Greenwood, loc. cit.
n. 22, at pp. 258-259. In case of a declaration of war, ‘the range of measures which may be employed
in self-defence becomes more extensive’. ‘[A] declaration of war will usually suggest that the conflict
is on a more extensive scale since, in modern times, a declaration of war has come to be regarded as
a statement of an intention to fight a total rather than a limited conflict.’ Greenwood, ibid., at p. 224.
41 Hague Convention (IV) Respecting the Laws and Customs of War on Land, with annexed
Regulations, signed on 18 October 1907, entered into force on 26 January 1910, 2 AJIL (1908) No.
1/2, Supplement: Official Documents, p. 90.
42
F. Kalshoven and L. Zegveld, Constraints on the Waging of War; An Introduction to Interna-
tional Humanitarian Law, 3rd edn. (Geneva, ICRC 2001) p. 147.
43 Cf., J.-M. Henckaerts and L. Doswald-Beck, eds., Customary International Humanitarian Law,
Vol. I, Rules, (International Committee of the Red Cross, Cambridge University Press 2005) Rule 150,
pp. 537-550.
44
Article 34 of the Articles on State Responsibility. See, Draft Articles on Responsibility of States
for Internationally Wrongful Acts, with commentaries, ILC Yearbook (2001) Vol. II, Part Two. At
<http://www.un.org/law/ilc/>. See also J. Crawford, The International Law Commission’s Articles on
State Responsibility; Introduction, Text and Commentaries (Cambridge, Cambridge University Press
2002).
45 Covenant of the League of Nations or Peace Treaty of Versailles, signed on 28th June 1919, en-
tered into force on 10th January 1920, 13 AJIL (1919) No. 2, Supplement: Official Documents, p. 128.
46 S/RES/687 (1991), adopted on 3rd April 1991, by 12 votes to 1, with 2 abstentions, on the situ-
tion between Iraq and Kuwait, paragraph 8; S/RES/686 (1991), adopted on 2nd March 1991, by 11 to
1, with 3 abstentions, on the situation between Iraq and Kuwait, paragraph 2(b).
And in accordance with paragraph 18 of the same resolution, the Security Council
established the United Nations Compensation Commission (UNCC) by Security
Council Resolution 692,50 in order to administer the fund from which damages
would have to be paid and to process the claims.
Now, the fact that the Axis Powers and Iraq were held responsible for their bel-
ligerence against their neighboring states is not extraordinary under international
law. After all, the responsibility of states for breaches of international law and the
corresponding duty to make reparation is considered a fundamental principle of
international law51 and has long been recognized in international practice.52 Note-
worthy, however, is the scope of their responsibility which verges on strict liability.
In the literature, this far-reaching liability finds authoritative support. According
to Lauterpacht for example, the maxim ex iniuria jus non oritur may have rele-
vance as to the financial settlement of war damage, despite the fact that this maxim
has been rejected with respect to the scope of responsibilities of states under jus in
bello. In the British Year Book of International Law of 1953, he wrote:
‘There is room in other spheres, not directly connected with the conduct of war, for
giving effect to the principle that a State cannot acquire rights from its wrongful
acts.’53
‘[W]hile international law sets no limit to the conditions of peace which the victor may
exact from a defeated enemy, it has been customary not to compel the latter to pay
compensation for damage arising out of operations connected with the lawful conduct
of the war. That custom must henceforth be deemed to lack a juridical basis in the case
of a war undertaken unlawfully.’54
49 S/RES/687 (1991), adopted on 3rd April 1991, by 12 votes to 1, with 2 abstentions, on the situ-
lishment of a United Nations Compensation Fund and a United Nations Compensation Commis-
sion.
51 According to Shaw, the responsibility of states flows from ‘the nature of the international legal
system’, the concept of sovereignty and the corresponding legal equality of states. M. Shaw, Interna-
tional Law, 5th edn. (Cambridge, Cambridge University Press 2003) p. 694.
52
In 1928, the Permanent Court of International Justice stated in the Chorzów Factory Case that
‘it is a principle of international law, and even a general conception of law, that any breach of an en-
gagement involves an obligation to make reparation.’ Case Concerning the Factory at Chorzów (Claim
for Indemnity), 13th September 1928, Publications of the Permanent Court of International Justice,
Collection of Judgments, Series A – No. 17 (Leiden, A.W. Sijthoff’s Publishing Company 1928) p. 29.
And in 2001, after a laborious process, the International Law Commission laid down 59 draft Articles
on State Responsibility. Art. 1 provides ‘Every internationally wrongful act of a State entails the in-
ternational responsibility of that State’; and Draft Art. 31(1) provides: ‘The responsible State is under
an obligation to make full reparation for the injury caused by the internationally wrongful act.’ Draft
Articles on Responsibility of States for Internationally Wrongful Acts, and Crawford, op. cit. n. 44.
53 Lauterpacht, loc. cit. n. 16, at p. 239.
54
Ibid., at p. 234.
Lauterpacht was apparently inspired by Fitzmaurice, who had made a similar, but
more careful proposition in 1948. Fitzmaurice wrote that
‘[i]n the ordinary way, a State is not responsible for damage legitimately caused in the
ordinary conduct of the war, but if a State is in the position of a wrongdoer in being at
war at all, if it has gone to war in a manner involving a breach of international law and
constituting an international crime, it might well be argued that it has legal responsibil-
ity for all the ensuing damage even if it would otherwise rank as damage legitimately
caused in the normal conduct of operations. Of course, no State could in practice make
good all such damage, and it is now well understood that the capacity of defeated
belligerents to pay, or to make good damage is very limited. This, however, does not
affect the question of responsibility; and the principle that States in the position of
wrongdoers as a result of their aggression, are responsible for the ensuing damage, ir-
respective of any treaty provision, may well be a useful one to establish. The question
of reparation will, however, always remain one which will have to be regulated by
treaty, if only because it is necessary to provide specifically what payments are to be
made, and what the method of payment is to be.’55
Although the idea sounds appealing and has found more adherents in literature,56
it is unfortunate that none of the authors provide substantial evidence for the exist-
55 G.G. Fitzmaurice, The Juridical Clauses of the Peace Treaties, 73 Hague Recueil (1948) Vol.
wood and Gattini. Schwarzenberger wrote in 1968: ‘However harsh – and, possibly, ill-advised – any
particular solution may be, it derives its legal justification not only from the consent of the defeated
State, but also from the victor’s right, irrespective of any consent, to demand full reparation for the
illegal resort of the defeated State to armed force. The victor need not even distinguish between legal
and illegal acts of war of the vanquished. If the defeated State has broken its obligations under jus
ad bellum, it cannot hide behind observance of jus in bello. Breaches of the laws and customs of war
provide merely additional grounds for reparation.’ G. Schwarzenberger, International Law As Ap-
plied by International Courts and Tribunals, Vol. II: The Law of Armed Conflict (London, Stevens &
Sons 1968) p. 767. Referring to Schwarzenberger, Low and Hodgkinson wrote in 1995: ‘Violations
of jus ad bellum should be distinguished from violations of jus in bello because a party that violates
jus ad bellum may be held responsible for all damages caused by such a war regardless of whether it
acted lawfully in the context of jus in bello.’ L. Low and D. Hodgkinson, ‘Compensation for Wartime
Environmental Damage: Challenges to International Law After the Gulf War’, 35 Virginia Journal of
International Law (1995) pp. 412-413, 456. In 1996, Boelaert-Suominen concluded that ‘general in-
ternational law on compensation for war damage clearly establishes the principle that aggressor States
are liable to pay reparation for damages resulting from breaches of the jus ad bellum. Reparations may
cover damage to public and private property, loss of life and injuries to civilians and generally at least
part of the war costs of the victorious State(s). However, the exact range of claims to be covered by
the reparations regime, the amount of reparations and the modalities of implementation depend on the
particular terms of the peace treaties.’ Boelaert-Suominen, loc. cit. n. 36, at p. 308. In 1996, Green-
wood wrote that although international claims on this basis had been rare ‘a State is liable, in principle,
to pay compensation for damage, including environmental damage, caused by an unlawful resort to
force. That is so even if the act which was the immediate cause of the damage was not itself a violation
of the laws of armed conflict. (…) State responsibility here flows from a breach not of the jus in bello
but of the jus ad bellum.’ C. Greenwood, ‘State Responsibility and Civil Liability for Environmental
Damage Caused by Military Operations’, in R.J. Grunawalt, et al., eds., Protection of the Environment
during Armed Conflict, 69 International Law Studies (Naval War College, Newport, RI 1996) p. 403
and similarly, pp. 406-407. Three year later, he wrote: ‘Since the aggressor’s resort to force is unlaw-
ful, it incurs international responsibility for all the consequences of its use of force. It therefore has a
duty to compensate not only those who have suffered loss as a result of the violations of the laws of
war committed by its forces but also those injured by acts of the same forces which were not contrary
to that law. In the latter case, the illegality which gives rise to the responsibility lies in the original
wrongful resort to force. Moreover, since opposition to an illegal resort to force is an entirely foresee-
able consequence of that unlawful act, the aggressor can also be held responsible for damage caused
by lawful acts of war on the part of its opponents. This was the approach adopted in the aftermath of
the Gulf conflict, when the Security Council reaffirmed, in resolution 687 (1991) that Iraq was ‘liable
under international law for any direct loss, damage … or injury to foreign Governments, nationals or
corporations as a result of its unlawful invasion and occupation of Kuwait’(loc. cit. n. 16, at p. 19).
And Gattini, finally, stated in 2002 that the starting point for the scope of Iraq’s liability under Resolu-
tion 687 is ‘the existence in contemporary international law of a norm which post bellum permits or
even demands the liability of the aggressor state, charging it with an obligation to make good not only
the entire amount of damage caused by itself, but also damage arising from the legitimate exercise of
self-defence by the state that is the victim of the aggression’. A. Gattini, ‘The UN Compensation Com-
mission: Old Rules, New Procedures on War Reparations’, 13 EJIL (2002) p. 173.
57 See also Boelaert-Suominen: ‘However, the exact range of claims to be covered by the repara-
tions regime, the amount of reparations and the modalities of implementation depend on the particular
terms of the peace treaties’ (loc. cit. n. 36, at p. 308).
58
In translation: an equal does not have power over an equal.
59 Boelaert-Suominen, loc. cit. n. 36, at p. 309. S/22456, 6th April 1991, Identical letters dated 6th
April 1991 from the Permanent Representative of Iraq to the United Nations addressed respectively to
the Secretary-General and the President of the Security Council.
60
Eritrea Ethiopia Claims Commission, Partial Award, Jus ad Bellum, supra n. 2, p. 7
responsibility for its use of force against and occupation of parts of Ethiopia and
presented a number of claims for injury that the Commission had earlier found to
constitute violations of jus in bello. Adopting a standard of legal causation based
on reasonableness or reasonable connection, a standard which has been adopted by
some legal systems, and referring to reparations programs following World War I,
World War II, and the 1990-1991 Gulf War, Ethiopia claimed for extensive dam-
ages all of which bore reasonable connection to Eritrea’s breach of jus ad bellum.
According to Ethiopia, these damages were not limited to the places and times
mentioned in its 2005 Partial Award, but to the wider condition of wide scale hos-
tilities that inescapably resulted from Eritrea’s wrongful act.61
Eritrea argued that it bore no financial responsibility at all for a number of
reasons. Adopting a legal causation standard based on ‘proximate cause’, it ac-
knowledged that it had to provide reparation to Ethiopia for its wrongful act, but it
believed that Ethiopia’s claims far exceeded the scope of liability following from
the Commission’s Partial Award. Ethiopia’s claim for financial compensation was
to be rejected and reparation should be limited to satisfaction in the form of a dec-
laration by the Commission. Eritrea contended that the three precedents referred to
by Ethiopia were not comparable to the war between Eritrea and Ethiopia since the
establishment of Eritrea’s breach of jus ad bellum and subsequent liability was not
established ‘through a multilateral process enjoying broad international approval’.
According to Eritrea, the Security Council had always taken a measured approach
towards the war and had never assigned responsibility to Eritrea as in the case of
Iraq.62
After this first round of hearings, the Commission had an informal meeting with
the Parties and informed them that it rejected both points of view.
‘The Commission does not regard its jus ad bellum findings as a finding that Eritrea
initiated an aggressive war for which it bears the extensive financial responsibility
claimed by Ethiopia. At the same time, it does not accept Eritrea’s argument that there
is no financial responsibility. (…)’63
61
Eritrea Ethiopia Claims Commission, Decision Number 7: Guidance Regarding Jus ad Bellum
Liability, supra n. 3, paras. 8, 15-16.
62 Loc. cit. n. 61, paras. 9, 17-18.
63 Ibid., para. 5.
64
Loc. cit. n. 61.
‘that the necessary connection is best characterized through the commonly used no-
menclature of “proximate cause”. In assessing whether this test is met, and whether the
chain of causation is sufficiently close in a particular situation, the Commission will
give weight to whether particular damage reasonably should have been foreseeable to
an actor committing the international delict in question.’65
Subsequently, the Commission observes that there have been few instances in the
recent past in which states have been held liable for damages under public interna-
tional law from a war they started. The three examples that both states referred to
in their arguments, namely World War I and II and the 1990-1991 Gulf War do not
provide clear guidance in this regard. The settlement for war damages after World
War I and II were both shaped by motives of policy and even revenge, and during
the 1990-1991 Gulf War, the Security Council played a central role unequivocally
condemning Iraq’s invasion of Kuwait as from the very beginning. During the
Eritrea – Ethiopia war, the Security Council adopted a more balanced approach,
usually addressing both parties and urging them to find a peaceful solution.66 The
Commission therefore invites Parties ‘to address in a more considered and precise
manner the scope of damages (…) taking full account of this Decision.’67
5. Conclusion
It will be very interesting to see how the Commission will eventually decide upon
the scope of Eritrea’s responsibility and the scope of the damages that it will even-
tually award to Ethiopia. In Decision No. 7, the Commission provides general
guidelines to the Parties, in particular with respect to the standard of legal cau-
sation and the relevance of the various precedents. Unfortunately, however, the
Commission did not comment on the relationship between a state’s responsibilities
under jus ad bellum and under jus in bello, especially it did not indicate to what
extent damage resulting from hostilities can be linked with jus ad bellum. The
standard of proximate cause may not be sufficient in this regard.
Based on the discussion above, it may be possible to distinguish two views
relating to the scope of an aggressor state’s obligation to pay compensation under
jus ad bellum. On the one hand, it is arguable that an aggressor state should pay
compensation for all material damage inflicted upon another state, even if its acts
are in conformity with jus in bello. If not, it could get away with a violation of jus
ad bellum without paying compensation for damage resulting from hostilities. This
would be another indication that the distinction between jus ad bellum and jus in
bello is becoming blurred or in any case less strict than always assumed.
On the other hand, it is arguable that an aggressor state should not have to
pay compensation for material damage committed within the framework of lawful
operations under the laws of war. This would be in conformity with the historical
dichotomy between both sets of rules and the object and purpose of jus in bello,
which assumes the existence of an armed conflict, irrespective of its cause, as well
as with the general principle of law that the loss rests where it falls.68 If an aggres-
sor state would still have to pay compensation for material damage even when it
has observed the law of armed conflict, it might lose all economic incentives to ob-
serve the laws of war.69 Reparation for its wrongful act could then consist of mere
satisfaction as the most appropriate form of reparation, similar to the International
Court of Justice’s decision in the Genocide Case.70
Neither view was accepted by the Claims Commission in its Decision No. 7 and
it is therefore likely that the Commission will try find an intermediate approach
in this regard. It could, for example, choose to relate the scope of an aggressor
state’s responsibility under jus ad bellum for damage resulting from hostilities to
the scope and magnitude of that state’s violation of the prohibition to use force.
For example, a single armed incident resulting in damage to another state could
be dealt with in a different way than damage resulting from hostilities within the
framework of a full scale war or protracted armed conflict. The former may be set-
tled within the framework of jus ad bellum whereas the latter may be settled within
the framework of the laws of war.
Furthermore, finding that an aggressor state not having to pay compensation for
damage resulting from hostilities under jus ad bellum, does not mean that an ag-
gressor state would not have to pay any compensation at all. It could, for example,
be held liable for other forms of damage not related to hostilities, such as economi-
cal damage resulting from the probable collapse of a victim state’s economy. The
extent of Eritrea’s responsibility for economic damage will be decided separately,
namely with respect to Ethiopia Claim No. 7. In another Partial Award of 19th De-
68 See, for example, the relationship between jus in bello and jus pacis. In an outline paper for a
Study Group of the International Law Commission on the Fragmentation of International Law, Ko-
skenniemi concluded that ‘[a] general type of lex specialis, constituting an exception to legal normal-
ity are the laws of war. It seems that, at least in the absence of evidence to the contrary, the laws of war
must be regarded as leges speciales in relation to – and thus override – rules laying out the peace-time
norms relating to the same subjects.’ In the 1996 Nuclear Weapons Opinion (GA) and the 2004 Wall
Opinion, the International Court of Justice stated that in case of simultaneous application of both hu-
man rights law and international humanitarian law, the former must be interpreted as lex generalis,
in the light of the latter. Koskenniemi’s outline paper as well as the two advisory opinions have been
referred to above, and will be discussed more elaborately in Chapter V.M. Koskenniemi, ‘Fragmenta-
tion of International Law’, Outline for Study Group, International Law Commission, 55th session,
2003, p. 6. At <www.un.org/law/ilc/sessions/55/55sess.htm>. Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, loc. cit. n. 20, para. 25, p. 240; Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9th July 2004, ICJ Rep. (2004) pp.
41-42. According to Koskenniemi, the European Court of Human Rights adopted a similar approach
in the 1974 Neumann case. Koskenniemi, loc. cit., at p. 4.
69
Other incentives arguably include humanitarian concerns, fear of reprisals, and fear of indi-
vidual criminal responsibility.
70 Case Concerning the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26th February
2007, paras. 463-468, 469. At <www.icj-cij.org/>.
cember 2005, the Commission decided that Ethiopia’s claims as far as this claim is
concerned had to be decided at a later stage of its proceedings.
The question whether or not an aggressor state can be held liable for all dam-
ages resulting from its breach of jus ad bellum is yet to be determined. The award
of the Eritrea Ethiopia Claims Commission will therefore be much welcomed since
it is likely to clarify an underexposed but very important area of public interna-
tional law.