Evaluating the Civilian-Use Model of Wartime Property Damage

Jul 17, 2009 | Article Responses

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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Finding a Proper Role for the “Civilian-Use Model”

Apr 30, 2009 | Article Responses

Responding to Lea Brilmayer & Geoffrey Chepiga, Ownership or Use? Civilian Property Interests in International Humanitarian Law, 49 Harv. Int’l L.J. 413 (2008)*

In their article “Ownership or Use? Civilian Property Interests in International Humanitarian Law,” Lea Brilmayer and Geoffrey Chepiga have attempted to identify a common purpose underlying the protection of civilian property under international humanitarian law (IHL). However, there is no such concept as “protected property” in IHL, and an approach to the protection of property and civilian goods has emerged from the application of the Geneva Conventions and other IHL instruments on a case-by-case basis.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Rules v. Principles as Approaches to Financial Market Regulation

Apr 7, 2009 | Article Responses

Responding to John H. Walsh, Institution-Based Financial Regulation: A Third Paradigm, 49 Harv. Int’l L.J. 381 (2008)*

As the global economic recession deepens, the structure of financial institutions and the legal principles that they apply are of primary concern to investors. One aspect of the legal debate has focused on whether financial market regulation should be based on principles or rules. Generally, principles-based regulation refers to a broad set of standards that gesture in the direction of certain desired outcomes. These standards may be accompanied by guidelines about how to achieve the outcomes. By contrast, rules-based regulation is, as the name implies, based on a set of detailed rules that govern firms’ behavior. Such rules enable firms to “tick-the-box” to guarantee compliance with law.

Another possibility—institution-based financial regulation—has recently been proposed by John Walsh as an alternative to rules and principles. This approach appears to have two parts. First, the approach refers to offices that firms are legally mandated to establish. For example, the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) require firms to establish certain offices and structures (the “institutions” to which Walsh refers) such as the Chief Compliance Officer, compliance policies and procedures, and annual self-assessments. Second, these firms will by necessity have firm-specific modus operandi or ways of functioning. The institutional approach provides them with flexibility in terms of how the required structures evolve and operate within the organization.

In this comment, I challenge the idea that institution-based financial regulation is a third paradigm within the principles-rules debate. Firms by nature utilize their discretion with regards to the way in which either principles or rules are implemented. Under principles-based regimes in particular, firms develop their own mechanisms to
comply with the overarching legal regime within which they operate. They seek to adhere to the outcome advocated under the stated principles by utilizing policies and practices that they craft themselves. Thus, institution-based regulation appears to be simply another iteration of principles-based regulation rather than a “third paradigm.”

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.