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7 Am. Mun. L. Rev. 101 (1942)
Community Lliability for Civilian War Injuries

handle is hein.journals/ammunlr7 and id is 109 raw text is: THE AMERICAN MUNICIPAL LAW REVIEW VOLUME VII JULY, 1942 NUMBER 2 COMMUNITY LIABILITY FOR CIVILIAN WAR INJURIES By EDWIN M. BORCHARD* I IT MIGHT be supposed that such a common phenomenon as war would have developed a pretty definite code of rules, international and do- mestic, by which indemnity or compensation for war damage to private persons would be regulated. But this is not so. Social ideas develop with the facts and the times, and community assumption of war risk has been a matter of relatively slow and unstable growth. It is a fact that in its international aspects ex- perience has worked out a set of rules by which the private individual affected in his person or property by the ravages of war knows reasonably well where he stands as a matter of law. In prin- ciple, there is no liability of either belligerent for war damage inflicted on private individuals in the direct conduct of hostilites-an irretrievable loss attributed by Vattel to the fact that enormous sums would be involved. Later refinements have limited this rule of irresponsibility to cases in which the rules of war law were observed and have given neutrals, and occasionally victorious enemy nation- als, a considerable opportunity to recover for in- jury inflicted contrary to the rules of war. But this legal right, as may be surmised, is subject to precarious political conditions which often prevent its vindication. As between nationals of the bel- ligerent states, the outcome of the war rather than objective law may determine who is a proper claim- ant for redress. The reason for any international right of individ- *Professor of Law, Yale University. ual recovery for direct injuries arising out of the ex- igencies of war goes back to Rousseau's conclusion that war is a contest between armed forces and that civilians have a certain right to immunity from its major implications. This never meant that they might escape the consequences of war, as is evi- dent from the Thirty Years' War; but it meant that civilians, as to person and property, had cer- tain immunities, even against the military itself, and that these immunities should be safeguarded by law. Vattel appears to have been among the first to deal wth the question of war losses sustained by individuals. He distinguished, first, those caused by the enemy, for which no indemnity was due, and second, those caused by the State itself. The latter he subdivided into two classes: first, those caused by the voluntary and deliberate action of the Army or Navy by way of precaution or strategy before combat, and secondly, the inevitable acci- dents of war caused by the stress of circumstances and without premeditation. For losses within the last category, the State incurred no strict obliga- tion, although if its finances allowed it was equi- tably proper to indemnify the victims. For losses incurred by deliberate precaution or strategy, which included the use of private property for public purposes, he considered the State bound to give indemnities at the close of the war. This dis- tinction between special injuries knowingly inflicted in preparation for war and special injuries inevi- tably imposed by imperious military necessity, has been followed in many countries since the period of the French Revolution, and the principle of

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