compensation for war damages under JUS AD BELLUM 417

COMPENSATION FOR WAR DAMAGES

UNDER JUS AD BELLUM

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-

lic of Ethiopia, signed on 12th December 2000. At <www.pca-cpa.org>.

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

the damages phase of these proceedings.2 Subsequently, and after a number of

hearings in the spring of 2007, the Commission issued Decision Number 7 on 27th
July 2007, in which it provided the parties with guidelines regarding the scope of
Eritrea’s liability for its violation of jus ad bellum.3
It has generally been established that a state must provide reparation after it has
committed an international wrongful act, consisting of either restitution, compen-
sation, or satisfaction. To which extent a state has to provide compensation for war
damages for a breach of jus ad bellum, however, is still uncertain.
This question will be addressed here. For a better understanding of the issues
involved, it is first necessary to discuss the relationship between jus ad bellum,
the law that regulates under which circumstances a state is allowed to use force
under public international law, and jus in bello, the law that regulates the conduct
of hostilities and the protection of the victims of armed conflict (infra Section 2).
Subsequently, a number of precedents and scholarly opinions regarding compen-
sation for war damages under jus ad bellum (infra Section 3) will be discussed as
well as the guidelines provided by the Eritrea Ethiopia Claims Commission on this
matter (infra Section 4), before rounding off with a number of conclusions (infra
Section 5).

2. The Relationship between JUS AD BELLUM and JUS IN BELLO

It is generally accepted that jus ad bellum and jus in bello are two distinct bodies
of law entailing distinct responsibilities. This means, for example, that in principle
the laws of war are equally binding on all belligerents irrespective of whether or
not a belligerent has the right to wage war or use force under public international
law. Although this distinction is nowadays considered ‘absolute dogma’4 as well
as ‘[o]ne of the oldest and best established axiomata of international law’,5 it has
not always been that way. During the Middle Ages, the use of force in international
relations was determined by the bellum justum or ‘just war’ doctrine, which did not
in principle distinguish between the reasons for going to war and the actual con-
duct of hostilities. The focus of the just war doctrine was on the material causes for
waging war,6 which meant that ‘war was not seen as a de facto situation to which
the same set of rules applied in all cases’.7

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

Nowadays, equal application of jus in bello to all belligerents appears, among

other things, from common Article 1 of the 1949 Geneva Conventions8 and the
Preamble of Additional Protocol I9 to the Geneva Conventions of 1977. Common
Article 1 provides: ‘The High Contracting Parties undertake to respect and to en-
sure respect for the present Convention in all circumstances.’10 And in preambular
paragraph 5 of Additional Protocol I, the High Contracting Parties reaffirm that
‘the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol
must be fully applied in all circumstances to all persons who are protected by those in-
struments, without any adverse distinction based on the nature or origin of the armed
conflict or on the causes espoused by or attributed to the Parties to the conflict.’11

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.

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420 erik v. koppe

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

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 compensation for war damages under JUS AD BELLUM 421

Moreover, and more recently, the International Court of Justice implicated in

its 1996 Nuclear Weapons Advisory Opinion (GA) jus ad bellum in its discussion
on whether or not the use of nuclear weapons would be legal under public interna-
tional law. After concluding that ‘[i]n view of the unique characteristics of nuclear
weapons, (…) the use of such weapons in fact seems scarcely reconcilable with
respect for’ the obligation to distinguish between military and civilian targets, and
the prohibition of unnecessary suffering, the Court stated that yet, it did not have
‘sufficient elements to enable it to conclude with certainty that the use of nuclear
weapons would necessarily be at variance with the principles and rules of law ap-
plicable in armed conflict in any circumstance’. Therefore, and considering the
fundamental right of self-defense of states, it concluded that
‘in view of the present state of international law viewed as a whole (…) and of the ele-
ments of fact at its disposal, the Court is led to observe that it cannot reach a definitive
conclusion as to the legality or illegality of the use of nuclear weapons by a State in an
extreme circumstance of self-defence, in which its very survival would be at stake.’20

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.

(1996) p. 226, paras. 95-97, pp. 262-263.

21 Judgment 2E reads: ‘It follows from the above-mentioned requirements that the threat or use

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

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422 erik v. koppe

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

committed an act of aggression. Müllerson, loc. cit. n. 22, at p. 272.

27
Cf., T. Gill, loc. cit. n. 5; W.D. Verwey, ‘De rechtmatigheid van kernwapens: het Hof in di-
lemma’, 9 VN Forum (1996); W.D. Verwey, ‘The International Court of Justice and the Legality of
Nuclear Weapons: Some Observations’, in K. Wellens, ed., International Theory and Practice; Essays
in Honour of Eric Suy (The Hague, Kluwer Law International 1998).
28
See Greenwood, loc. cit. n. 22, at p. 263; Müllerson, loc. cit. n. 22, at pp. 269-270.

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 compensation for war damages under JUS AD BELLUM 423

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

If the existence of an ‘extreme circumstance of self-defence, in which the very

survival of a State would be at stake’ is indeed considered a determinative factor
on whether or not the use of nuclear weapons is lawful under public international
law, then this would not only raise serious questions,30 but it would also mean a
deviation of the general rule that both jus ad bellum and jus in bello entail separate
and independent responsibilities. Furthermore, this deviation could signal a renais-
sance of the bellum justum doctrine,31 though adapted to modern times, in which
the reasons for going to war ultimately determine the lawfulness of any use of
force under public international law.32 Although undesirable,33 this development
is arguable in view of the limitation of the right to go to war before 1945 and the
prohibition of the use of force since 1945.34 The special and perhaps even peremp-
tory status of the prohibition on the use of force under public international law,35
and thus the special status of law on the use of force in general, might even warrant
a reinterpretation of the distinction between jus ad bellum and jus in bello.

29 Separate Opinion of Judge Fleischhauer, Legality of the Threat or Use of Nuclear Weapons,

Advisory Opinion, loc. cit. n. 20, para. 3, at pp. 306-307.

30 Müllerson, loc. cit. n. 22, at pp. 270-271.
31 Greenwood comes to a similar conclusion (loc. cit. n. 22, at p. 264). He writes: ‘To allow the

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

responsible for all use of force.

34
Similarly, Lauterpacht, loc. cit. n. 16, at p. 210.
35
Cf., 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. 190, pp. 100-101. In a
recent study, Schrijver acknowledges the peremptory status of the prohibition to use force, since the
prohibition is widely accepted and recognized, and a very large majority of states accept the prohibi-
tion as peremptory. However, in view of the ‘increasing number of new exceptions claimed by leading
states’, it is questionable ‘how long the prohibition to use force still qualifies’ as a norm of jus cogens.
N. Schrijver, ‘Challenges to the Prohibition to Use Force: Does the Straitjacket of Article 2(4) UN
Charter Begin to Gall too Much?’, in N. Blokker and N. Schrijver, eds., The Security Council and the
Use of Force; Theory and Reality – A Need for Change? (Leiden, Martinus Nijhoff Publishers 2005)
pp. 39-43.

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424 erik v. koppe

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

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 compensation for war damages under JUS AD BELLUM 425

force in self-defense are disproportionate and unnecessary to repel the aggressor’s

armed attack, this must be regarded as an international wrongful act for which the
state using force in self-defense incurs international responsibility under public in-
ternational law. Even if those actions were completely in conformity with the laws
of war. This follows from the object and purpose of both requirements to keep the
overall level of force and the scope of the conflict to a minimum.40
Secondly, it is possible that rules of jus in bello and jus ad bellum overlap with
respect to compensation for war damages. Compensation for war damages result-
ing from violations of jus in bello follows specifically from Article 3 of the 1907
Hague Convention on Land Warfare,41 Article 91 Additional Protocol I and possi-
bly customary international humanitarian law.42 The ICRC’s Study on Customary
International Humanitarian Law provides in Rule 150: ‘A State responsible for
violations of international humanitarian law is required to make full reparation for
the loss or injury caused.’43 Compensation is one form of reparation, additional to
restitution and satisfaction.44
Compensation for war damages resulting from breaches of jus ad bellum has
occurred in practice and has been argued in literature. How the compensation for
war damages resulting from breaches of jus ad bellum relates to the possible com-
pensation for breaches of jus in bello, will be discussed further below.

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).

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426 erik v. koppe

3. Compensation for War Damages under JUS AD BELLUM

Compelling a state to pay compensation for war damages resulting from a war
which has been started unlawfully finds precedents in the Treaty of Versailles,45
and in Security Council Resolution 687 of 3rd April 1991.46 Firstly, Article 231 of
the Treaty of Versailles provides:
‘The Allied and Associated Governments affirm and Germany accepts the responsibil-
ity of Germany and her allies for causing all the loss and damage to which the Allied
and Associated Governments and their nationals have been subjected as a consequence
of the war imposed upon them by the aggression of Germany and her allies.’

Furthermore in Article 232, the Allied and Associated Governments recognize

that Germany’s resources are not adequate ‘after taking into account permanent
diminution of such resources which will result from other provisions of the present
Treaty, to make complete reparation for all such loss and damage’. Nevertheless,
‘[t]he Allied and Associated Governments (…) require, and Germany undertakes, that
she will make compensation for all damage done to the civilian population of the Al-
lied and Associated Powers and to their property during the period of the belligerency
of each as an Allied or Associated Power against Germany by such aggression by land,
by sea and from the air, and in general all damage as defined in Annex 1 hereto’.

For this purpose, the Contracting Parties established an ‘Inter-Allied Commission,

to be called the Reparation Commission’ under Article 233, which was charged to
consider the claims and to set the amount of the damages for which compensation
was to be made.47
Secondly, both before and after the end of the 1990-1991 Gulf War, the Security
Council adopted a number of resolutions in which it established the liability of Iraq
for the damage it had caused by occupying Kuwait on 2nd August 1990. Acting
under Chapter VII of the Charter, the Council reminded Iraq in Resolution 674
that it was liable ‘under international law for any loss, damage or injury arising in
regard to Kuwait and third States and their nationals and corporations, as a result
of the invasion and illegal occupation of Kuwait by Iraq.’48 And in Resolution 687
of 3rd April 1991, the Council reaffirmed in paragraph 16 that
‘Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2nd August
1990, which will be addressed through the normal mechanisms, is liable under interna-
tional law for any direct loss, damage, including environmental damage and the deple-

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-

ation between Iraq and Kuwait.

47
Please note the similarity with Security Council Resolution 687 which established Iraq’s re-
sponsibility for all damage resulting from its use of force against and occupation of Kuwait.
48 S/RES/674 (1990), adopted on 29th October 1990, by 13 to 0, with 2 abstentions, on the situa-

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).

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 compensation for war damages under JUS AD BELLUM 427

tion of natural resources, or injury to foreign Governments, nationals and corporations,

as a result of Iraq’s unlawful invasion and occupation of Kuwait.’49

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-

ation between Iraq and Kuwait.

50 S/RES/692 (1991), adopted on 20th May 1991, by 14 to 0, with 1 abstention, on the estab-

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.

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428 erik v. koppe

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.

II, pp. 325-326.

56 These authors include Schwarzenberger, Low and Hodgkinson, Boelaert-Suominen, Green-

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-

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 compensation for war damages under JUS AD BELLUM 429

ence of a general rule of international law, and it is therefore uncertain whether

such a rule actually exists under public international law. Indeed, Fitzmaurice
wrote that ‘the principle that States in the position of wrongdoers as a result of
their aggression, are responsible for the ensuing damage, irrespective of any treaty
provision, may well be a useful one to establish’, thereby indicating that this prin-
ciple was not de lege lata but de lege ferenda. Furthermore, he pointed out that ‘[t]
he question of reparation will (…) always remain one which will have to be regu-
lated by treaty’.57 After all, sovereignty entails legal equality of states which also
means that one state cannot impose its will upon another state, or par in parem non
habet imperium.58 Indeed, the liability of the Axis Powers after both World Wars
was based on treaties to which Germany and the other states had consented to be
bound, rather than on a general principle or rule of public international law, and
‘[i]t is [therefore] easy to see why the Security Council devoted special attention to
getting Iraq’s formal consent on the cease-fire conditions.’59

4. The Findings of the Eritrea Ethiopia Claims Commission

After the Claims Commission, on 19 December 2005, had established that Erit-
rea had acted in breach of the jus ad bellum for violating Article 2(4) of the UN
Charter, and after it had decided that the scope of the damages for which Eritrea
was liable because of this breach would be determined in the damages phase of
these proceedings,60 the Commission invited both states to a first round of hearings
in April 2007. During these hearings Ethiopia argued that Eritrea bore extensive

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

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430 erik v. koppe

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

The Commission subsequently adopted Decision Number 7 on 27th July 2007 to

provide guidance for the Parties in the final round of hearings regarding the extent
of Eritrea’s liability to pay damages for its breach of jus ad bellum.64
In this Decision, the Commission first deals with the various standards of legal
causation adopted in various legal systems and by various international tribunals,
such as reasonableness, proximate cause, (reasonable) foreseeability, and an ap-
proach that distinguishes between direct and indirect damages. Despite ambiguity
and difficulties, the Commission concludes

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.

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 compensation for war damages under JUS AD BELLUM 431

‘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

65 Ibid., para. 13.

66 Ibid., paras. 21-32.
67
Ibid., para. 33.

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432 erik v. koppe

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/>.

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 compensation for war damages under JUS AD BELLUM 433

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.

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