5cjxburmr

18.16.4 No Private Right to Compensation Under Customary International Law or the1949 Geneva Conventions. The responsibility of States for violations of the law of warcommitted by their agents is owed to other States. 184 The fact that such responsibility is owed toother States reflects the predominately inter-State nature of international obligations. 185Customary international law and the 1949 Geneva Conventions do not provide a private right forindividuals to claim compensation directly from a State; rather, such claims are made by otherStates. 18618.17 RETORSIONRetorsion is one of the measures that an injured party may use to seek to persuade anadversary to cease violations of the law of war.Retorsion may be understood to mean unfriendly conduct, (1) which is not inconsistentwith any international obligation of the State engaging in it, and (2) which is done in response toan internationally wrongful act. 187 Retorsion is frequently contrasted with reprisal, whichinvolves measures that would otherwise be unlawful. 188184 See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 789 footnote 14 (1950) (“We are not holding that these prisonershave no right which the military authorities are bound to respect. The United States, by the Geneva Convention ofJuly 27, 1929, 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreementupon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is,however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights isupon political and military authorities. Rights of alien enemies are vindicated under it only through protests andintervention of protecting powers as the rights of our citizens against foreign governments are vindicated only byPresidential intervention.”); Juragua Iron Co. v. United States, 212 U.S. 297, 308 (1909) (“It is true that the army,under General Miles, was under a duty to observe the rules governing the conduct of independent nations whenengaged in war — a duty for the proper performance of which the United States may have been responsible in itspolitical capacity to the enemy government.”).185 Refer to § 1.10.1.3 (Predominately Inter-State Nature of International Obligations).186 GC COMMENTARY 211 (“One other point should be made clear. The Convention does not give individual menand women the right to claim compensation. The State is answerable to another contracting State and not to theindividual. On that point the recognized system was not in any way modified in 1949.”); GC COMMENTARY 603(“As regards material compensation for breaches of the Convention, it is inconceivable, at least as the law standstoday, that claimants should be able to bring a direct action for damages against the State in whose service theperson committing the breach was working. Only a State can make such claims on another State, and they formpart, in general, of what is called ‘war reparations.’”).187 See U.N. International Law Commission, Draft articles on Responsibility of States for Internationally WrongfulActs, with commentaries, 128 (2001) (“Countermeasures are to be contrasted with retorsion, i.e. ‘unfriendly’ conductwhich is not inconsistent with any international obligation of the State engaging in it even though it may be aresponse to an internationally wrongful act. Acts of retorsion may include the prohibition of or limitations uponnormal diplomatic relations or other contacts, embargoes of various kinds or withdrawal of voluntary aidprogrammes.”); GWS COMMENTARY 342 (“A distinction is generally made between reprisals and retortion; thelatter is also a form of retaliation, but the measures taken do not break the law, and are in reply to acts which arethemselves generally admitted to be lawful. The acts in question on both sides are matters within the competence ofthe States concerned. A case of retortion would, for example, be the withdrawal by one belligerent from retainedpersonnel of privileges accorded over and above those accorded under the convention, where the adverse Party hadwithdrawn privileges, whether in the same or in another connection, from the corresponding personnel in hishands.”).188 Refer to § 18.18.1.2 (Acts That Would Otherwise Be Unlawful).1092