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3 Chi. J. Int'l L. 207 (2002)


This article addresses the question of the proper international standard for war reparations. War reparations are especially hard on the credibility and efficacy of international law. Wars are hard because the suffering is so great and reparations so onerous that often there is no mutuality of interest between the victorious governments and their own constituent victims. Wars force victorious States to make hard choices between looking backward to repair the harm caused to constituent victims and looking forward to a relationship with a potential strong and strategic ally. Just as the conduct of war, in its great features, is...policy itself, so too it often appears that war reparation schemes have almost everything to do with international relations, and very little to do with international law. The victorious States must choose either wholly to embrace compensation to the victims, future peace and stability with the vanquished, or a balance of both that will satisfy neither the victims nor the vanquished.

If revolutions are easy, wars are hard because if the victorious countries only focus on reparations for the war, they will do so at the expense of any future relationship with the vanquished countries. Second, wars are hard because if the victorious focus only on the future relationship with the vanquished, it will do so at the expense of the victims of the war. Third, wars are hard because if the victorious countries attempt to strike a middle ground and balance reparation to victims with nurturing a potential relationship with the vanquished, both the victims and the vanquished will remain unsatisfied with the result.

International law has well-established principles of jus ad bellum and jus in bello, but it has yet to embrace principles for jus post bellum. International law should develop broad theories for jus post bellum, including principles of war reparations. Such principles would clearly establish that, while a victorious country has the legal right to claim full compensation for damages directly caused by unlawful acts of war conducted by a state (or by non-state actors with a state's knowledge, acquiescence, or ratification), it also has the right on behalf of its nationals to waive claims for full compensation. And in making any claim it has the obligation to prioritize among categories of claimants and to provide concrete evidence of all injuries sustained. The difficulties in establishing such broad principles should not be insurmountable. After all, if international law has succeeded in establishing laws for the engagement and conduct of war and laws of war crimes, why can it not establish clear principles for war reparations?



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