法学研究 94 巻 1 号（2021：1）

Re-Excavation of Fault in Article 3 ofthe 1907 Hague Convention IV on War on
Land＊

MINAI, Keisuke
I. Introductory Dissertation
II. Concepts Process in the Course of Drafting Art. 3
III. Validation by Quantitative Content Analysis
IV. Conclusion

I.

Introductory Dissertation
Article 3 of the Convention concerning the Laws and Customs of War on

Land (the 1907 Hague Convention IV on War on Land) provides that “A belligerent
party which violates the provisions of the said Regulations [the Regulations
respecting the Laws and Customs of War on Land] shall, if the case demands,
be liable to make compensation. It shall be responsible for all acts committed by1）

persons forming part of its armed forces.”

With regard to the nature of responsibility of a belligerent party (State) inthis provision, the following doctrinal discussions have developed in accordancewith methods of interpreting the relationship between the first and second
2）sentences within a contextual paradigm.
＊

Associate Professor of International Law, Faculty of International Studies, Osaka University of Economics and Law.
1） A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES CONCERNING THE LAWS AND USAGES OF WAR: TEXTS OF CONVENTIONS WITH COMMENTARIES 213 (Cambridge University Press 1909).
2） See, the general rule of interpretation provided in Article 31(1) of the Vienna Convention on the Law of Treaties. Vienna Convention on the Law of Treaties art. 31, May 23,
1969, 1155 U.N.T.S. 332.
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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Land

Soon after the adoption of the 1907 Hague Convention IV on War on
Land (the “Convention”), Oppenheim presented his case arguing that Article 3 of
the Convention (“Art. 3”) stipulated responsibilities with two distinct natures,
positing a disjunctive relationship between the first and second sentences. Morespecifically, he interpreted the first sentence as providing for the selfresponsibility of a belligerent State for compensation in the case of violating theRegulations respecting the Laws of War on Land (the “Regulations”), whereas thesecond sentence addresses the vicarious responsibility of a belligerent State as
regards the illegal conduct by members of its armed forces who are not under its
3）

immediate command or specific authorization.

According to Oppenheim, internationally injurious acts committed in theexercise of official functions by military forces of a State without its specificcommand or authorization are not acts of the State itself. However, he also
holds that the State bears a vicarious responsibility for such acts because its
4）

military forces are under its disciplinary control. Therefore, Oppenheim assertsthat Art. 3 prescribes, first, compensation responsibility as a conventional state
responsibility (self-responsibility) derived from actionable activities of Stateagents (members of its armed forces under its auspices) and, second, vicarious
responsibility of a State with respect to malefactions committed by members of
its armed forces who are not under its immediate command. Here thedifferentiation of the qualities of specific actions yields the dissimilarity of
responsibility, notwithstanding the commonality of wrongdoersʼ affiliation.
However, in contrast with Oppenheimʼs theory of dissociation of the firstand second sentences of Art. 3 (the “Dissociation Theory”), the interpretation
defining these sentences as a cohesive concept is widely accepted in international
legal studies. Freeman, who represents a contrary view to Oppenheimʼs, argues
that Art. 3 embodies the unitary rule, which sets up the compensation
responsibility of a belligerent State for all acts committed by members of its3） 2 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 320 (Longmans, Green and Co., 2d
ed. 1912).
4） 1 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 218 (Longmans, Green and Co., 2d
ed. 1912).
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法学研究 94 巻 1 号（2021：1）
5）

armed forces, which are in violation of the Regulations. In addition, Freeman
unequivocally disavows conferring insurer status (i.e., vicarious responsibility) ona belligerent State, arguing that the first sentence evinces the compensation
responsibility of a belligerent State for infringements of the Regulations, andthat the second sentence, following from the first, prescribes the responsibility ofa belligerent State for every act of its armed forces members that contravenes
6）

said Regulations.

On the basis of this contextual interpretation, Freeman asserts that a State
7）

shall accept responsibility, as its collective responsibility,

for all the acts of its

armed forces members that violate the Regulations without any distinction
between acts committed within the exercise of military duties and those that are
not.

8）

Here, irrespective of the qualities of a malfeasant ʼs act, an

undifferentiated concept of responsibility is applied based on the commonalityof affiliation (i.e., armed forces member status of offenders).
Meron, just like Freeman, recognizes more widely that Art. 3 enunciates abelligerent State that takes responsibility in a single, uniform way for all acts
committed by members of its armed forces, regardless of whether they acted as
9）state organs or private persons,
responsibility.

describes this as a strict or objective

10）

Hence, in determining State responsibility, he focuses on thestatus of perpetrators and the consequences of their actions (i.e., objective5） ALWYN V. FREEMAN, RESPONSIBILITY OF STATES FOR UNLAWFUL ACTS OF THEIR ARMEDFORCES 75-76 (A. W. Sijthoff 1957) (text of lectures reprinted from the Recueil des Coursde lʼAcadémie de Droit International de La Haye).
6） Id. at 73-74, 80.
7） Id. at 70. In a similar vein, Mérignhac sketches the configuration in applying Art. 3 that
responsibility of individual perpetrators (the members of armed forces) is pursued as
global responsibility (“responsabilite globale”) of a State through its government. A. Mérignhac, De la Sanction des Infractions au Droit Des Gens: Commises, au Cours de la Guerre
Européenne, par les Empires du Center, 24 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 5, 9 (1917).
8） Supra note 5, at 73, 79.
9） THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 161,
223. (Clarendon Press 1989).
10） Id. at 224.
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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Landelements) rather than the question of attribution to a belligerent State based on

the quality of such actions.

11）

Likewise, Kalshoven, positing that the twosentences of Art. 3 must be read together as an individual whole, argues that
Art. 3 encompasses all violations of the Regulations committed by members ofarmed forces, regardless of whether those violations are done in that capacity orotherwise.

12）

Quoting Freemanʼs denial of an insurer status of a State, Sassòli

defines the responsibility in Art. 3 as “absolute responsibility,” grounding thisdefinition in the much stricter control the state exercises over members of armed
13）

forces as compared to other agents of the state.
Freemanʼs tenet.

Greenwood, in turn, follows

14）

Such a theory, which links the first and second sentences of Art. 3 (the“Connection Theory”), is adopted not only in academia, but also in international

practice. For instance, the United Nations Secretariat interprets Art. 3 as
establishing an absolute or strict responsibility as defined in the Connection
Theory.

15）

A judgment by the Administrative Court of Appeal of Münster,German Federal Republic, which presided over a case of personal injuries

11） Id. at 161-162. Attention to damage as a result of acts committed by members ofarmed forces is referred to by Greenspan. MORRIS GREENSPAN, THE MODERN LAW OF LANDWARFARE 404 (University of California Press, 1959).
12） Frits Kalshoven, State Responsibility for Warlike Acts of the Armed Forces: From Article 3 of Hague Convention IV of 1907 to Article 91 of Additional Protocol I of 1977 and Beyond, reprinted in HISAKAZU FUJITA, ISOMI SUZUKI and KANTARO NAGANO, eds., WAR AND
THE RIGHTS OF INDIVIDUALS: RENAISSANCE OF INDIVIDUAL COMPENSATION 225, 215, 219(Nippon Hyoron-sha Co., LTD. Publishers 1999).
13） Marco Sassòli, State Responsibility for Violations of International Humanitarian Law,
846 REVUE INTERNATIONALE DE LA CROIX-ROUGE 401, 406 (2002).
14） Christopher Greenwood, Rights to Compensation of Former Prisoners of War and Civilian Internees under Article 3 of Hague Convention No. IV, 1907, in HISAKAZU FUJITA,ISOMI SUZUKI and KANTARO NAGANO, eds., WAR AND THE RIGHTS OF INDIVIDUALS: RENAISSANCE OF INDIVIDUAL COMPENSATION 238, 233 (Nippon Hyoron-sha Co., LTD. Publishers
1999).
15） United Nations Secretariat, “Force majeure” and “fortuitous event” as circumstances
precluding wrongfulness: survey of State practice, international judicial decisions and doctrine (UN Doc. A/CN.4/315), reprinted in 2(1) YEARBOOK OF THE INTERNATIONAL LAWCOMMISSION 1978 61, 92-93 (UN Doc. A/CN.4/SER.A 1978/Add.1 Part 1 1978).
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法学研究 94 巻 1 号（2021：1）

caused by a motor vehicle of an occupying power, stated that it was “anundisputed principle of the doctrine of international law” that Art. 3 provided
for absolute responsibility.

16）

This judgment is cited in a ruling by the Tokyo

District Court, Japan, concerning injuries suffered by former prisoners of war
17）

and civilian internees of the ex-Allied Powers of World War II.

These

18）

examples reflect subsequent practices in the application of Art. 3.

The most significant feature of the Connection Theory is that it requires nofault on the part of a responsible belligerent State as an element of thecompensation responsibility in Art. 3. In his illustration of absoluteresponsibility, Kelsen recognizes Art. 3 as a case where a State is responsible
even though no fault on the part of its institutions occurred.

19）

The United

Nations Secretariat clearly states that the responsibility in Art. 3 arises without
20）

any requirement to prove that State entities are at fault or negligent.

The

Administrative Court of Appeal of Münster also holds that fault on the part ofthe person who caused harm is not a prerequisite of responsibility because Art.3
21）

provides for absolute responsibility.

The Connection Theory, by which a belligerent State accepts strict orabsolute responsibility

22）

for every illegal act of members of its armed forces

16） Personal Injuries (Occupied Germany) Case, in HERSCH LAUTERPACHT ed., 19 INTERNATIONAL LAW REPORTS (year 1952) 632, 633 (Cambridge University Press 1957).
17） Claims for Compensation from Japan Arising from Injuries Suffered by Former POWS
and Civilian Internees of the Ex-Allied Powers, reprinted in HISAKAZU FUJITA, ISOMI SUZUKI
and KANTARO NAGANO, eds., WAR AND THE RIGHTS OF INDIVIDUALS: RENAISSANCE OF INDIVIDUAL COMPENSATION 193, 190 (Nippon Hyoron-sha Co., LTD. Publishers 1999).
18） Article 31(3) of the Vienna Convention on the Law of Treaties. Vienna Convention on
the Law of Treaties, art. 31, May 23, 1969, 1155 U.N.T.S. 332.
19） HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 123-124 (Rinehart & Company Inc.
2d ed. 1956).
20） Supra note 15, at 92-93.
21） Supra note 16, at 633.
22） Strict responsibility should not be confounded with absolute responsibility even in international law. Strict responsibility postulates immunity reasons and the shift of the burden of proof as its essence. On the other hand, absolute responsibility does not accept any
mode of exculpation. IAN BROWNLIE, 1 SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY 44 (Clarendon Press 1983).
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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Land

irrespective of the quality of such acts, is open to criticism. One of the strongest
critiques of the Connection Theory is that the principle of absoluteresponsibility is hardly consonant with the view that the proposition (current
Art. 3) was extending the principle of employersʼ or mastersʼ liability in private

law to international law.

23）

This argument was made in the report submitted in

the preparatory work for drafting the Convention (i.e., the Second Hague Peace
Conference of 1907) , which can be invoked as a supplementary means ofinterpretation.

24）

Employersʼ or mastersʼ liability in private law (tort law)certainly has the nature of strict responsibility (no element of employersʼ ormastersʼ fault) , but such liability is commonly considered to be strict

responsibility only in the sense of vicarious responsibility within the system ofCivil and Common Law.

25）

In this sense, Oppenheimʼs Dissociation Theory, which adopts vicarious
responsibility regarding Art. 3, is more attuned to the above report. Moreover,
employersʼ or mastersʼ liability in private law presupposes tortious acts byemployees or subordinates,

26）

and such acts require the elements of intent or

negligence by the agents. In line with this argument, Ago holds that fault, as anelement for responsibility, must be sought in the action of individuals who
belong to the armed forces, and that Art. 3 does not intend to establish no-fault
responsibility of the State itself.

27）

Therefore, even if the rationale for Art. 3 is23） 1 THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES 101 (Oxford University Press
1920); 3 THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES 26 (Oxford University Press
1921).
24） Article 32 of the Vienna Convention on the Law of Treaties. Vienna Convention on the
Law of Treaties, art. 32, May 23, 1969, 1155 U.N.T.S. 332.
25） Paula Giliker, Vicarious Liability or Liability for the Acts of Others in Tort: A Comparative Perspective, 2 JOURNAL OF EUROPEAN TORT LAW 31, 31-34 (2011). Note that David refers to Belgium and French civil code when he makes mention of the principle of the responsibility of masters and agents which arises in civil law. See, Eric David, The Direct
Effect of Article 3 of the Fourth Hague Convention of 18th October 1907 Respecting theLaws and Customs of War on land, in HISAKAZU FUJITA, ISOMI SUZUKI and KANTARO NAGANO, eds., WAR AND THE RIGHTS OF INDIVIDUALS: RENAISSANCE OF INDIVIDUAL COMPENSATION 248, 246 (Nippon Hyoron-sha Co., LTD. Publishers 1999).
26） Giliker, Vicarious Liability, supra note 25, at 33.
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法学研究 94 巻 1 号（2021：1）

cited from employersʼ or mastersʼ liability in private tort law, it is difficult toprovide an account of Art. 3 based on the Connection Theory, which requires
no fault on the part of entities or individuals who inflict harm.
With regard to this animadversion, Freeman, the leading advocate of theConnection Theory, refutes the employersʼ or mastersʼ liability explanation on
the following bases: First, no other element than membership in the Stateʼs
armed forces can be seen in Art. 3 and, second, the delegates did not take careful
account of a master-servant relationship at the meetings of the Second
Commission of the Peace Conference.

28）

However, given that his argument

regarding the Connection Theory mainly relies on the drafting process of theConvention,29）

it is disingenuous to ignore the unequivocal statements regarding

employersʼ or mastersʼ responsibility in the report submitted in the drafting
process.
In view of the above doctrinal discussions, there is room for revisiting the
responsibility principle of Art. 3 to find an interpretation that is morecompatible with the drafting process and the two Theories. With respect to thefirst, the discussion to which the two Theories commonly attach special
importance should be re-examined.
The present study reconsiders the drafting process of Art. 3 by virtue of
two data analytical methods that have never been adopted in doctrines: (1)construction of concepts process, which involves application and modificationof the grounded theory approach; (2) quantitative content analysis, which tests
the outcome of (1). This approach will explore the concretization of the rules ofstate responsibility during an armed conflict and is expected to contribute to theadvancement of the system of international responsibility, including the30）

secondary rules.

27） Roberto Ago, Le Délit International, 68 RECUEIL DES COURS (1939 – II) 419, 493 (1939).
28） Supra note 5, at 69-70, 74.
29） For example, Id. at 74-76, 78.
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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Land

II. Concepts Process in the Course of Drafting Art. 3
A. Research Objectives and Method
The proposition which was submitted in the drafting process of Art. 3
reads as follows:
Article 1: A belligerent party which shall violate the provision of theseRegulations to the prejudice of neutral persons shall be liable to indemnify those
persons for the wrong done them. It shall be responsible for all acts committed bypersons forming part of its armed forces.
The estimation of the damage caused and the indemnity to be paid, unlessimmediate indemnification in cash has been provided, may be postponed, if thebelligerent party considers that such estimate is incompatible, for the time being,with military operations.
Article 2: In case of violation to the prejudice of persons of the hostile party,31）
the question of indemnity will be settled at the conclusion of peace.

The first and second sentences of Article 1 of this proposition correspondperfectly to the first and second sentences of current Art. 3, which are cited at
the beginning of this paper. Therefore, to analyze the responsibility principle ofArt. 3, it is necessary to analyze the drafting process by which the agreement
was proposed.
To conduct an objective analysis of data with respect to the drafting
process of Art. 3, this study focuses on oral statements directly related to Art. 3
at the fourth meeting of the first sub-commission of the Second Commission on
July 31; the second meeting of the Second Commission on August 14; and the30） Omori maintains that it is ultimately desirable for the advancement of the system ofinternational responsibility to concretely determine individual rules of responsibility ineach area of international law, and which is in tandem with clarification of responsibility
concepts by codification approach targeted at the secondary rules. See, MASAHITO OMORI,
KOKUSAISEKININ NO RIKOU NI OKERU BAISHO NO KENKYU [STUDY ON REPARATION IN THE IMPLEMENTATION OF I NTERNATIONAL RESPONSIBILITY ] 258 (Keio University Hogaku-kenkyu-kai 2018) (in Japanese).
31） 3 THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES, supra note 23, at 139.
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法学研究 94 巻 1 号（2021：1）

fourth meeting of the plenary conference on August 17 in the Second Hague
Peace Conference of 1907. These statements were acquired from primarysources, rather than relying on secondary sources, to maintain objectivity about
the drafting process. Hence, as regards text data, the present study deals onlywith the oral statements pertinent to Art. 3, which were recorded in the first(plenary meetings) and third (meetings of the second, third, and fourth commissions)volumes of THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES, which are theofficial minute books of the Second Hague Peace Conference of 1907.
To construct the concepts process applied in drafting Art. 3, this paper uses32）

the modified grounded theory approach.

First, the relevant oral text data arebroken down into segments according to semantic content and then33）

properties

34）

and dimensions(concepts with a low degree of abstraction) are
35）

extracted from each data segment. Second, categories(concepts with high levelof abstraction) are created by classifying the data segments based on reference tolabel names given to each data segment according to its properties anddimensions. Third, the categories are classified through the use of paradigms

36）32） The grounded theory approach includes “the discovery of important categories andtheir properties, their conditions and consequences; the development of such categories atdifferent levels of conceptualization; the formulation of hypotheses of varying scope andgenerality; and above all the integration of the total theoretical framework.” BARNEY G.
GLASER & ANSELM L. STRAUSS, THE DISCOVERY OF GROUNDED THEORY: STRATEGIES FORQUALITATIVE RESEARCH 168-169 (Routledge 3d. paperback ed. 2008). Also, the theory “involves taking data apart, conceptualizing it, developing concepts in terms of their properties and dimensions, and then integrating the concepts around a core category… Theorizing is the act of constructing an explanatory scheme that systematically relates concepts toeach other around a core concept.” JULIET CORBIN & ANSELM STRAUSS, BASICS OF QUALITATIVE RESEARCH : TECHNIQUES AND P ROCEDURES FOR D EVELOPING G ROUNDED T HEORY 81(SAGE Publications 4th ed. 2015).
33） Properties are defined as “characteristics or qualities of concepts that define, give specificity, and differentiate one concept from another,” or “characteristics that define and describe concepts. CORBIN & STRAUSS, supra note 32, at 57, 220.
34） Dimensions are defined as “the range over which a property can vary,” or “variations
within properties.” Id.
35） Categories are defined as “higher-level concepts under which analysts group lower-level
concepts.” Id. at 220.
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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Landand connected to one another by properties and dimensions and then therelationship between a core category

37）

and the other sub-categories is describedin a category relationship diagram. Fourth, the concepts process in the data as awhole is captured through a textual description of the diagram utilizing the38）

concepts, including properties, dimensions, labels, and categories.

B. Analytical Findings
As a result of the data analysis using the grounded theory approachmentioned earlier, <introduction of reparation obligation as the consequencesof infractions of the Regulations> is identified as the core concept (category) inthe drafting process of Art. 3. As explicitly stated in the explanation by thedelegation of Germany {the German proposition, which aims to complete theRegulations respecting the laws and customs of war on land by the addition ofprovisions dealing with the case of infraction of the Regulations},39）

the aboveconcept is the objective of the proposition (current Art. 3) itself. Moreover, thisconcept is the starting point of many other categories and routes. Therefore, it isappropriate to define it as the pivotal concept.
The relevance between this core category and the eleven circumambient
sub-categories together with the subsequent concepts process in the course ofdrafting Art. 3 are shown in Figure 1. In this figure, a rectangle is a condition; a36） Structural demarcation consists of conditions, action-interaction and consequences.
Paradigm is defined as “an analytic tool that helps analysts code around a category.” Conditions “answer to the questions about why, when, and how come.” Actions-interactions“are the actual responses people or groups make to the events or problematic situations.”
Consequences “are anticipated or actual outcomes of action and interaction.” Id. at 153,
158-159.
37） Core category is defined as “a concept that is sufficiently broad and abstract that summarizes in a few words the main ideas expressed in the study.” Id. at 187.
38） Notice that theoretical sampling and theoretical saturation, which are peculiar to thegrounded theory approach, are not conducted because the oral text data which are the object of analysis are immobilized as a historical record. About the details of theoreticalsampling and theoretical saturation, see, Id. at 85, 106, 134, 135, 239; GLASER & STRAUSS,
supra note 32, at 45, 61.
39） The statement by von Gündell. 3 THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES,
supra note 23, at 139.
267(66)

Expression of assent
to the proposition

Controversy over indemnifying
victims for damages by other acts thanthose prohibited in the Regulations

Figure 1: Category Relationship Diagram

Request for equal treatment of all
individuals that do not take partin hostilities

Suggestions for form of stipulationthat can interpret equality between
neutral and enemy nationals

Assertion of precluding the theory of
subjective fault in cases where negligent
acts by persons forming part of armed
forces cannot be attributed to a State

Emphasis on difficulty of implementing theprinciple in the proposition

Compromise in combining thetwo articles of the proposition
into a single one

Reservations on the subject ofthe proposition

Emphasis on equality of rights anddifference in procedure between
neutral and enemy nationals

Assertion of application of the tort
responsibility principle for reparation on
the basis of intentional or negligent acts

Introduction of reparation obligation
as the consequences of infractions of
the Regulations

Designation that penal laws haveinsufficient effects to prevent
infractions of the Regulations

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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Land

hexagon is the main action-interaction ― i.e., the core concept (category) ;rounded rectangles are actions-interactions; and ellipses are consequences,respectively, under the paradigm. In the text of this paper, categories (or parts ofthem) are shown in angle brackets (< >) and parts of oral text data are presented

in curly brackets ({ }).
It turns out that the concepts process in the course of drafting Art. 3
consists of three routes, which are represented as three types of arrowed lines:
dotted, dashed, and solid arrows in Figure 1. In what follows, this concepts
process is explicated by written text referring to the various concepts.
The relativity of the concepts in the route consisting dotted arrows is asfollows. When the <designation that penal laws have insufficient effects toprevent infractions of the Regulations> is followed by the propositionʼsachieving <introduction of reparation obligation> into the Conventions,<controversy over indemnifying victims for damages by other acts than thoseprohibited in the Regulations> is presented. To be more precise, after a fear
about non-prohibited actions is expressed {the danger of being interpreted acontrario in the sense that in the cases not provided for the violation ofinternational rules would not imply any obligation to repair the damage done}40）(hereafter italics are in the original in quotations),a solution that {a simple

o b s e r vat i o n i n t h e m i nu t e s c a n s u ff i c e t o p r e v e n t a ny d o u b t o r
misunderstanding}41）

is offered to cope with the risk of such argumentum econtrario. Since the proposition gets adopted as Art. 3 without any dissenting
opinion to this solution, it is reasonable to assert that <assent to the
proposition> is implicitly expressed.
The second aspect of the diagram reflects the relatedness of the concepts
illustrated by dashed arrows. When <introduction of reparation obligation> is
proposed in the same way as the route with dotted arrows, <equality of rights
between neutral and enemy nationals> is emphasized as a mere <difference inprocedure> between them: {[t]he principle which it lays down is applicable toevery individual injured, whether national of the enemy State or ressortissant of40） The statement by Renault. Id. at 141.
41） The statement by Borel. Id. at 141-142.
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法学研究 94 巻 1 号（2021：1）

the neutral State. The only distinction established between these two categories
of victims and, consequently, legally entitled persons, relates to the settlement of
the indemnity}42）and {a difference between neutral persons and persons of the43）

hostile party only as regards the method of paying indemnities}.

However,States, which do not express <assent to the proposition> and the above
explanation, should submit a <request for equal treatment of all individuals that
do not take part in hostilities> that is represented by the statement {measurestaken for the protection of individuals should apply to all alike without any
distinction between neutral persons and persons of the hostile party}.

44）

Then,

<reservations> not to express opinions are made by some States. After these
discussions and exchange of ideas, <suggestions for form of stipulation that caninterpret equality between neutral and enemy nationals> is provided: {it would
be preferable that Article 1 should not relate exclusively to neutrals but also topersons of the hostile party, for it is the separation of the two stipulations that45）

leads to misunderstanding by creating a seeming inequality}.

This suggestion

conduces to <compromise in combining the two articles of the proposition intoa single one>. Hence, the combined proposition (current Art. 3) is adopted.
The nature of responsibility in Art. 3, which is the central question of thisstudy, has a direct bearing on the relevance of the concepts tracked in the route
represented by the solid arrows. This is elaborated in the following paragraphs.
In submitting the proposition to the first sub-commission of the Second
Commission, the delegation of Germany held that the <designation that penal
laws ha[d] insufficient effects to prevent infractions of the Regulations>regarding the present circumstances, stating that {infraction [of the provisions
contained in the Regulations] would come under the head of the penal laws
which safeguard the discipline of the armies. However, we cannot pretend that46）

this sanction is sufficient to prevent absolutely all individual transgression}.

42） The statement by Borel. Id. at 142.
43） The statement by von Gündell. Id. at 143.
44） The statement by Renault. Id. at 141.
45） The statement by Nelidow. Id. at 143.
46） The statement by von Gündell. Id. at 140.
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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Land

Based on the above <designation>, preparation of the proposition including<introduction of reparation obligation> is explained as an intention to address<the consequences of infractions of the Regulations>: {it is proper to anticipate
the consequences of infractions which might be committed against the47）

requirements of the Regulations}.

With respect to the elements to effectuate the above <reparation
obligation>, <the tort responsibility principle for reparation on the basis ofintentional or negligent acts> in private law purports to be applied to the
proposition: {[a]ccording to a principle of private law, he who by an unlawfulact, through intent or negligence, infringes the right of another, must makereparation to this other for the damage done. This principle is equally applicable48）

in the domain of international law and especially in the cases in point}.

However, according to this principle of reparation responsibility, <in cases
where negligent acts by persons forming part of armed forces cannot be
attributed to a State> ({[t]he case most frequently occurring will be that in which no49）

negligence is chargeable to the Government itself}), the only option available is to

apply legal sanctions to members of armed forces based on their civil
obligations or status. This makes it impossible to invoke state responsibility
under international law, hence {persons injured as a consequence of violation of
the Regulations could not demand reparation from the Government and were
obliged to look to the officer or soldier at fault}.

50）

In these cases, <precluding

the theory of subjective fault> is proposed by saying that {the responsibility forevery unlawful act committed in violation of the Regulations by persons
forming part of the armed force should rest with the Governments to which
they belong}.

51）

Some States express <assent to the proposition>: {[t]he considerations
which inspired the two propositions are legitimate and just and, as such, shouldin our opinion be made the subject of an international agreement}47） The statement by von Gündell. Id.
48） The statement by von Gündell. Id.
49） The statement by von Gündell. Id.
50） The statement by von Gündell. Id.
51） The statement by von Gündell. Id.
263(70)52）and {the

法学研究 94 巻 1 号（2021：1）

Swiss delegation adheres without reservation to the project presented by theGerman delegation. The principle which this proposition tends to establish is so
53）

just that it might be said to fill a genuine gap in the Regulations of 1899}.

Onthe other hand, <emphasis on difficulty of implementing the principle in the
proposition> is noted since {it is often very difficult to determine this violationand the extent of the damage done. To proclaim the principle is easy, but it is54）very difficult to apply it}.

Given <reservations> of opinion by the delegations of the United
Kingdom and Turkey, the delegation of Germany {accepts the wording decided
on by the committee, which combines the two articles into a single one withoutestablishing any difference in principle between neutral persons and others},

55）

and so makes a <compromise>, with the result that the proposition gets
adopted as Art. 3 in a definitive fashion.
The concepts relationship, consisting of three routes and written in
sentences, enables us to track the concepts process in the course of drafting Art.
3. In the section which follows, the focus is on the relationship between theconcepts in the route composed of the solid arrows, which is the core issue ofthe present study.
C.

Discussion
Based on Figure 1 and the above text of concepts relevance in the route

depicted by solid arrows, it is apparent that the context between <assertion of
application of the tort responsibility principle for reparation on the basis ofintentional or negligent acts> and <assertion of precluding the theory of
subjective fault> is dissociated. Moreover, their respective range capabilities aretotally different–that is to say, the former statement extends to the proposition
as a whole, but the latter is limited to <cases where negligent acts by persons
forming part of armed forces cannot be attributed to a State>. This

52） The statement by Tcharykow. Id. at 141.
53） The statement by Borel. Id.
54） The statement by Reay. Id. at 142.
55） The statement by von Gündell. Id. at 13.
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interpretation regarding the ranges is compatible with a statement made by thedelegation of Germany that {we cannot hold here to the theory of the subjective
fault by which the State would be responsible only if a lack of care or
surveillance were established against it. The case most frequently occurring will56）

be that in which no negligence is chargeable to the Government itself}.

Because this statement regards the <subjective fault> as {a lack of care or
surveillance}, the focus is exclusively on negligent acts by a State itself;concomitantly, negligent acts by members of armed forces postulate no
possibility of attribution for such acts to a State. Furthermore, the statement
underscores the practical barriers <in cases where negligent acts cannot be
attributed to a State> immediately after the <assertion of precluding the theoryof subjective fault>. This acknowledges the connection between such limited
cases and the preclusion of subjective fault.
The above exegesis about the ranges of concepts leads to two conclusions.
First, as long as <application of the tort responsibility principle for reparation>in private law is considered, specific acts by State agents (members of armed
forces), whose actions are attributable to a State, essentially require intention or

negligence as the element of obligation in the proposition. This accords withtraditional fault responsibility principle introduced into international law by
Grotius.

57）

Secondly, as a consequence of <precluding the theory of subjective

fault>, by which a {State would be responsible only if a lack of care or
surveillance were established}, <in cases where negligent acts by persons
forming part of armed forces cannot be attributed to a State>, fault or
negligence by a State with regard to care or surveillance is not required as abasis for reparation.
To summarize: (a) It is necessary for Stateʼs obligation of reparation torecognize a negligent act by a member of armed forces. When this negligent act
by the person cannot be attributed to a State, this State shall be responsible forreparation even though it does not conduct any negligent acts on its own (i.e.,56） The statement by von Gündell. Id. at 140.
57） H. LAUTERPACHT, PRIVATE LAW SOURCES AND ANALOGIES OF INTERNATIONAL LAW 135136 (Longmans, Green and Co. Ltd. 1927).
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法学研究 94 巻 1 号（2021：1）

exhibit a lack of care or surveillance of the person). (b) The Stateʼs obligation of

reparation is conferred with no regard for a negligent act of the State itself tocare or surveil members of its armed forces; instead, the applicable premise is
the existence of fault or negligence by the members of armed forces. This isbecause, unless the proposition was adopted, {persons injured as a consequenceof violation of the Regulations could not demand reparation from the58）

Government and were obliged to look to the officer or soldier at fault}.

Thus,

private tort responsibility of members of armed forces to pay reparation wasconceived.
Given this, both conclusions are typically assumed to require negligent acts
by members of armed forces. With respect to the first conclusion, negligent acts
by such members are treated as equivalent to as acts by the State; hence, theobligation of reparation is imposed on the State. As regards the second
conclusion, even if the negligent acts by armed forces members are not
attributable to a State, obligation of reparation for these acts is imposed on theState whether or not the State is at fault in caring or surveilling its agents (i.e.,albeit no-fault).

Furthermore, given the second conclusion, it is possible to interpret thisprinciple as vicarious responsibility of a State. This is because the State assumes
private responsibility for damages, due to negligent acts by members of its
armed forces, as reparation responsibility under international law. By thisinterpretation, the second conclusion is in sync with the view that the
proposition (current Art. 3) was extending employersʼ or mastersʼ liability (i.e.,
vicarious responsibility) in private law into the sphere of international law.

From the previous discussions, according to the construction of theconcepts process based on the modified grounded theory approach, it becomes
obvious that both responsibilities are fault responsibility and so commonly
require negligence or fault in acts by members of armed forces. This finesses
Oppenheimʼs Dissociation Theory in which compensation responsibility of aState itself is discrete from its vicarious responsibility. Hence, it can be argued58） The statement by von Gündell. 3 THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES,
supra note 23, at 140.
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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Land

that strict or absolute responsibility, which the prevailing Connection Theory
advocates, runs counter to the concepts process applied in the course of drafting
Art. 3, as well as hardly being consonant with the report as regards employersʼ
or mastersʼ liability submitted in the drafting process.

III.

Validation by Quantitative Content Analysis

A. Research Object and Method
Even though the analysis based on the grounded theory approach is one ofthe objective assay methods, it is extremely difficult to completely eliminate theauthorʼs subjective interpretation. Thus, the aforementioned analytical findings
await a guarantee of objectivity by performing the validation of them through aquantitative method.
As discussed in the previous section, the Dissociation Theory can bederived from the interpretation that the context between <assertion of
application of the tort responsibility principle for reparation on the basis ofintentional or negligent acts> and <assertion of precluding the theory of
subjective fault> is dissociated and their respective ranges differ from eachother. Conversely, taking as given the linkage between the two concepts alongwith commensurate ranges, both concepts would extend to the proposition (Art.
3) as a whole. Consequently, the subjective fault of a State would be excluded in

all cases. On this premise, the Connection Theory, which considers the nature of
responsibility in Art. 3 as strict or absolute responsibility, should be adopted.
Therefore, it is possible to make an objective judgment about the plausibility of
discussion in the preceding section by way of testing whether the two concepts
are dissociated or not.
To validate analytical findings in the previous chapter by quantitativemeans, it is sufficient to be directed to the data segments which form the above
concepts (categories). Accordingly, a quantitative analysis is conducted, treating“According to a principle of private law, … should rest with the Governments towhich they belong” in the statement by von Gündell on page 140 in the third
volumes of THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES as the item tobe tested.
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法学研究 94 巻 1 号（2021：1）

Quantitative content analysis is applied as a validation methodology. Thisis a research technique for making replicable inferences from text data by giving
objective, systematic, and quantitative descriptions of the content or context ofcommunication in the data.

59）

In conducting the quantitative content analysis,computer software was used to quantify the degree of co-occurrence60）(association) between words (this approach was used to exclude analystʼs coding).
61）

A word network diagram

was constructed to present a visual representationof co-occurrence between words.
B.

Analytical Findings and Discussion
Quantitative content analysis gives the word network diagram in Figure 2.

In this graphic, the high-low frequency of words is represented by the size of thecircle, with words having a high degree of co-occurrence (association) joined bylines and automatically grouped.
Taking the statement data as an objective explanation with regard to the59） BERNARD BERELSON, CONTENT ANALYSIS IN COMMUNICATION RESEARCH 18 (Hafner Press
1952); PHILIP J. STONE, DEXTER C. DUNPHY, MARSHALL S. SMITH, and DANIEL M. OGILVIE,
et al., THE GENERAL INQUIRER: A COMPUTER APPROACH TO CONTENT ANALYSIS 5 (The
M.I.T. Press 1966); KLAUS KRIPPENDORFF, CONTENT ANALYSIS: AN INTRODUCTION TO ITSMETHODOLOGY 24 (SAGE Publications 4th ed. 2019); DANIEL RIFFE, STEPHEN LACY, BRENDAN R. WATSON, and FREDERICK FICO, ANALYZING MEDIA MESSAGES: USING QUANTITATIVECONTENT ANALYSIS IN RESEARCH 23 (Routledge 4th ed. 2019).
60） Howard P. Iker and Norman I. Harway, A Computer Systems Approach toward the
Recognition and Analysis of Content, in GEORGE GERBNER, OLE R. HOLSTI et al., eds., THE
ANALYSIS OF COMMUNICATION CONTENT: DEVELOPMENTS IN SCIENTIFIC THEORIES AND COMPUTER TECHNIQUES 381, 381-382, 384-386 (John Wiley & Sons, Inc. 1969). As a software forthe quantitative content analysis, this study adopts KH Coder which is developed a quantitative analysis of qualitative data in the field of social sciences and humanities. Programs
such as R for statistical analysis and MySQL for organization of data are built into the
KH Coder. Koichi Higuchi, A Two-Step Approach to Quantitative Content Analysis: KH
Coder Tutorial using Anne of Green Gables (Part I), 52(3) RITSUMEIKAN SOCIAL SCIENCESREVIEW 77, 77-78 (2016).
61） James A. Danowski, Network Analysis of Message Content, in WILLIAM D. RICHARDS,
JR. and GEORGE A. BARNETT, eds., 12 PROGRESS IN COMMUNICATION SCIENCES 197, 198, 202,203-212, 219 (Ablex Publishing Corporation 1993).
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Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Land

Figure 2: Word Network Diagram

proposition (Art. 3) the following inferences are elicited from each word group in
Figure 2: (a) Acts in question are unlawful (the word group at the upper left). (b)Acts committed by armed forces confer responsibility (the word group at theupper middle). (c) The principle of damages in private law is equally applicable tothe domain of international law (the word group at the middle left) . (d)Indemnification for major consequences that are not chargeable is addressed(the word group at the middle right). (e) Government and persons can respectively

violate Regulations (the word group at the lower left). (f) Negligence is associatedwith reparation (the word group at the lower middle). (g) A State is responsible
because of a lack of subjective care or surveillance of its agents (the word groupat the lower right).

These seven word groups do not display co-occurrence (association) .
Therefore, apparent demarcation between the groups at the middle left and rightof Figure 2 reveals the difficulty of connecting the two concepts (categories) by257(76)

法学研究 94 巻 1 号（2021：1）

one underlying principle: <assertion of application of the tort responsibility
principle for reparation on the basis of intentional or negligent acts>;<assertion of precluding the theory of subjective fault in cases where negligent
acts by persons forming part of armed forces cannot be attributed to a State>.
Moreover, the three word groups at the lower part of Figure 2 imply
adoption of the following principles: a government shoulders tort responsibilityof members of armed forces through subrogation, making infractions of theRegulations subject to a government (State responsibility under international law)or members of its armed forces (tort responsibility under private law); a negligent
act is a valid legal basis for reparation; and, even when acts of the members are
not attributable, lack of due care or surveillance by itself constitutes
responsibility of a government (State).
In this vein, the above quantitative content analysis succeeds in testing thevalidity of the discussion in the previous chapter which applies Dissociation
Theory to Art. 3, asserting that State compensation responsibility and vicarious
responsibility are both fault responsibility that require fault or negligence bymembers of armed forces as a basis for reparation.

IV. Conclusion
Using novel assay methods, this study has reconsidered interpretations
more consonant with the drafting process in which the legal nature of
responsibility in Art. 3 of the Convention was a key point of debate. First,
application of the modified grounded theory approach provides the constructionof the concepts process in the drafting of Art. 3, with <introduction of
reparation obligation as the consequences of infractions of the Regulations> as
the core concept. This leads to the finding of the two categories where context is
dissociated: <assertion of application of the tort responsibility principle forreparation on the basis of intentional or negligent acts>; <assertion of
precluding the theory of subjective fault in cases where negligent acts by persons
forming part of armed forces cannot be attributed to a State>. Concomitantly,
it becomes obvious that the principle of responsibility in Art. 3 is based on
Stateʼs compensation responsibility and on vicarious responsibility, as well as(77)256

Re-Excavation of Fault in Article 3 of the 1907 Hague Convention IV on War on Landthe principle that these two responsibilities typically require fault or negligenceby members of armed forces.
Second, using the quantitative content analysis, this study tests theappropriateness of these findings. By depicting the degree of co-occurrence(association) between words in statement data, the existence of the two

disconnected categories is implied; hence, the plausibility of findings is
validated.
By treating the responsibility in Art. 3 as fault responsibility, thediscussions in this study offer a critique of the reigning theory invoked in many
international practices. This study is in concord with Ago, who rejects no-fault
responsibility as applicable to Art. 3, proposing instead that fault or negligenceby members of ar med forces should be required as an element ofresponsibility.

62）

Nonetheless, this study has specific limitations. Because this study relies
only on the drafting process of Art. 3 as a supplementary means ofinterpretation, there is a possibility that the discussions are not sufficiently
cogent to override the prevailing theory whereby international practices defineinterpretation of Art. 3. However, the transformation of international practices
and the development of the system of state responsibility continue to be widelypracticed to this day. When fault responsibility is invoked in a practice regarding
Art. 3, the fault or negligence arguments which this study re-excavates from thedrafting process will see the light of day. It is expected that this will help reify
interpretation of the rules of state responsibility during armed conflicts.
Moreover, it is predicted that this reification will impact Article 91 of theProtocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts which bears a
passing resemblance to Art. 3.
Acknowledgment
I wish to express my utmost gratitude to Professor Masahito OMORI for
enlightenment and edification based on his consummate sagacity.
62） Supra note 27, at 493.
255(78)