Responding to Lea Brilmayer & Geoffrey Chepiga, Ownership or Use? Civilian Property Interests in International Humanitarian Law, 49 Harv. Int’l L.J. 413 (2008).
I. INTRODUCTION
That civilians suffer in war is a historic, global phenomenon; that they deserve more respect during the fighting and more help after the smoke clears is obvious to anyone who has visited Afghanistan, the Democratic Republic of Congo, or Sri Lanka in the past year. The extent of civilian suffering seldom corresponds to the compensation that individuals or communities receive, or when it does, the calculus for such compensation does not take into account the far-reaching implications of the harm done to ordinary people who now must try to pick up the pieces of their lives. Brilmayer and Chepiga argue that deliberate damages to property should be compensated according to “use value” rather than ownership, such that the damages represent the social costs to the entire community. Under this theory, a hospital turned to rubble, a distinct violation of International Humanitarian Law (IHL), would be valued for its far-reaching utility as a community asset for health care and peace of mind, not just for its bricks and mortar. The authors justify this calculus on the grounds that the loss inflicted on potential users of that hospital is greater than its
market value.
For practitioners, both advocates and humanitarians, there are two underlying imperatives that must remain at the fore of efforts to fill known gaps or inadequacies in IHL; to neglect the full realization of either imperative is to inadvertently undermine the interests of civilians. First, practitioners are concerned about improving the welfare of civilians during war, as follows from IHL’s baseline assumption that civilians should be spared to the best extent possible the atrocities that war inevitably brings. Our second priority is to add to or strengthen incentives that deter warring parties from harming civilians. The authors argue that a model for damages recognizing the “civilian-use” value of community property would better reflect the real harm done and, consistent with existing IHL provisions, provide additional deterrence against targeting civilian property that is “indispensable to the survival of the civilian population.”1 To understand the value and utility of Brilmayer and Chepiga’s “civilian-use” model, we therefore apply this two-part test: (1) Will the “civilian-use” model meet the most critical needs of civilians suffering from armed conflict? (2) Will it change the behavior of warring parties? The answer to both of these questions is a solid maybe.
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