On War as Hell

If war is hell, then how do you make amends for the suffering of hell? Herein lies the conundrum of war reparations. International law can deal with revolutions, catastrophes, and lesser evils we euphemistically call acts of God. But when the fury of hell is unleashed on earth, international law quakes. The great irony of war is that the more catastrophic and widespread its destructive consequences, the less likely that those caught in its path will ever be repaid for their injury. There simply is not enough salve to heal the wounds of war. Heaven knows we try. Indeed, war reparations are on the make in the twentyfirst century: we enthusiastically embrace mechanisms for Holocaust reparations, Gulf War reparations, Yugoslav reparations, and Ethiopian and Eritrean reparations. But beneath the veneer, it is clear that no effective remedy exists to respond to the horror of war. Like many others, I have spent much of my career working to redress the consequences of wars and revolutions: first, at the Iran-United States Claims Tribunal as a legal advisor; second, in private practice representing claimants before the United Nations Compensation Commission; third, as a senior legal advisor for the Claims Resolution Tribunal resolving claims to Holocaust-era dormant Swiss bank accounts; and most recently, advising clients regarding prisoner-of-war claims against Japanese corporations arising out of the Second World War. This perspective therefore contains my musings on war and its aftermath. I. REVOLUTIONS ARE EASY We should begin with a minor thesis: revolutions are easy. International law is now well positioned to respond to revolutions. The modern trend toward an effective response to revolutions was sown from the seeds of failure. After Fidel Castro seized control of Cuba, the United States took halting steps to address the harm done to US property interests, failed to freeze Cuban assets in the US, and offered no adequate recourse for claimants to sue in United States courts. To this day, Cuba owes US nationals billions of dollars in expropriated assets. This fact alone is a major impediment to normalizing relations with Havana, and the Helms-Burton Act is exhibit one. The United States and the world community learned a great deal from the Cuban revolution and similar revolts. Since that time, mechanisms for enforcing international rights have been established and international law itself has blossomed through a network of bilateral investment treaties and judicial decisions protecting foreign investment. Now we know the drill when a revolution occurs: immediately freeze the country's assets, invoke investment treaties, waive sovereign immunity for acts of expropriation, establish a dispute resolution mechanism, and honor that mechanism's awards through frozen assets, lump-sum settlements, or assets chased under the New York Convention. Indeed, revolutions are so easy that the so-called Hull formula now represents customary and conventional international law. We can credibly state, as international courts regularly do, that in the aftermath of a revolution, foreign investors whose property has been expropriated must receive prompt, adequate, and effective compensation representing the full value of their losses. The Iran-United States Claims Tribunal is the exemplar, the darling of the international legal community's response to revolutions. Following the seizure of the United States embassy on November 4, 1979, the United States quickly seized millions in Iranian assets. On January 19, 1981, on the last day of the Carter Administration, Warren Christopher signed the Algiers Accords establishing a tribunal to resolve claims by American nationals against the government of Iran arising out of the Iranian revolution.1 Over the course of the next twenty years, the tribunal awarded US nationals over $2.1 billion in damages. The governments of Iran and the United States refuse to speak to one another (at least in public), but the Iranian people love the United States. …