¹ According to news accounts, three days before the invasion, General Colin Powell, Chairman of the Joint Chiefs of Staff, had warned President Bush of the possibility of looting and civil unrest. The President had brushed those concerns aside, focusing instead upon the military aspects of the operation. See David Hoffman & Bob Woodward, President Launched Invasion with Little View to Aftermath, WASH. POST, Dec. 24, 1989, at Al.

² 28 U.S.C. §1346(b), §§2671-2680 (1988).

³ Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Convention or Convention]. The plaintiffs also relied upon the Alien Tort Claims Act, 28 U.S.C. §1350 (1988), as an independent basis for the lawsuits. In dismissing the actions, the courts ruled that the Alien Tort Claims Act did not constitute a waiver of sovereign immunity by the United States. Industria Panificadora, S.A. v. United States, 763 F.Supp. 1154, 1159 n.6 (D.D.C. 1991), affd, 957 F.2d 886, 887 (D.C. Cir. 1992); Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968-69 (4th Cir. 1992). See Sanchez-Espinosa v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985) ("The Alien Tort Statute itself is not a waiver of sovereign immunity.").

⁴ Hague Convention, supra note 3, Annexed Regulations, Art. 43, 36 Stat, at 2306.

⁵ Article 42 of the Regulations, supra note 4, provides: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” 36 Stat, at 2306.

⁶ Hague Convention, supra note 3, Art. 3, 36 Stat, at 2290.

⁷ In a two-page declaration submitted by the United States in support of its motion to dismiss, Richard A. Clarke, Assistant Secretary of State for Politico-Military Affairs, stated:

⁸ Industria, 763 F.Supp. at 1156–59; see Goldstar, 967 F.2d at 967. The D.C. district court ruled in addition that the controversy constituted a nonjusticiable political question because, inter alia, it entailed “judicial review of executive branch decisions pertaining to the nature, conduct, and implementation of a presidentially-directed military operation in a foreign country.” Industria, 763 F.Supp. at 1161. Neither circuit court reached that issue. Industria, 957 F.2d at 887; Goldstar, 967 F.2d at 971.

⁹ While the appeals were pending, the Government of Panama submitted a diplomatic note to the State Department, requesting “that the 1907 Hague Convention be applied in and by the courts of the United States in the same manner as all public international laws are adhered to and enforced by their signatory nations.” Government of Panama, Diplomatic Note No. 050 to the Government of the United States (Jan. 21, 1992) (English trans.). Although the Government of Panama requested that its views be brought “to the attention of the courts … where these law actions have been filed and are now pending,” id., the Department of Justice refused to submit the note to the courts, contending that the Secretary of State had not requested that it do so, and that, in any event, the note was “irrelevant to the issues in this case.” Letters from U.S. Attorney for the District of Columbia to Allan I. Mendelsohn, Esq. (Feb. 12, 1992, & Mar. 10, 1992).

¹⁰ 28 U.S.C. 12680(a) (1988). Although the FTCA does not define “discretionary function,” the Supreme Court had previously ruled that the discretionary function exception encompasses any act “that involves choice or judgment” and is not limited, as some courts had held, to acts involving “policymaking or planning functions.” United States v. Gaubert, 111 S.Ct. 1267, 1275 (1991).

¹¹ Berkovitz v. United States, 486 U.S. 531, 536 (1988).

¹² The analogous issue in the act of state context had arisen in Kalamazoo Spice Extraction Co. v. Provisional Military Government of Socialist Ethiopia, 729 F.2d 422 (6th Cir. 1984), summarized in 78 AJIL 902 (1984). There, the court held that in order to determine whether a treaty obligation is sufficiently well-defined to override the act of state doctrine, courts must look beyond the bare language of the treaty and consider whether the language has an established meaning in customary international law. The courts in Industria and Goldstar did not apply that standard, looking strictly at the text of the Hague Convention to determine the obligations it imposed.

¹³ See Berkovitz, 486 U.S. at 536–37; United States v. Varig Airlines, 467 U.S. 797, 814 (1984).

¹⁴ Industria, 957 F.2d at 887; Goldstar, 967 F.2d at 970.

¹⁵ Goldstar, 967 F.2d at 968. The court held that the requirement in Article 3 that compensation be paid did not necessitate a finding that the Convention was self-executing inasmuch as the Supreme Court had held that a similar obligation in the Geneva Convention on the High Seas, Apr. 29, 1958, Art. 22(3), 13 UST 2312, 2319, 450 UNTS 82, did not give rise to a private right of action. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 442 (1989).

¹⁶ Alona E. Evans, The Self-Executing Treaty in Contemporary American Practice, in De Lege Pactorum: Essays in Honor of Robert Renbert Wilson 3, 18 (David R. Deener ed., 1970). Cf. People of Saipan v. United States Dep’t of Interior, 502 F.2d 90, 97 (9th Cir. 1974), cert, denied, 420 U.S. 1003 (1975), in which the court listed the following factors for determining self-execution: “the purposes of the treaty and the objectives of its creators, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-execution.”

¹⁷ Notwithstanding case law, which has consistently held that the Convention is not self-executing, the issue arguably warrants renewed scrutiny. Professor Frits Kalshoven’s recently published research into the drafting history of the Convention has led him to conclude that Article 3 was “unmistakably designed to enable these people [private claimants] to present their bills directly to the State, i.e. to its competent (military or other) authorities, either during or after the war.” 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, 40 Int’l & Comp. L.Q. 827, 835–36 (1992). Professor Kalshoven concedes, however, that state practice has not been consistent with the intent of the drafters, and that, at least “as regards damage incurred by persons of enemy nationality,” the “right of direct individual access to, and compensation by, the State, has largely been replaced by a practice of lump sum settlements concluded after the war by and between the one-time belligerent States.” Id. at 836.

¹⁸ See Brief of the Government of Panama as Amicus Curiae in Support of Petition for Writ of Certiorari at 10–20.

¹⁹ As one judge has admitted, in justification of his conclusion that the Hague Convention is not self-executing:

²⁰ See, e.g., Monarch Ins. Co. v. District of Columbia, 353 F.Supp. 1249 (D.D.C. 1973), aff’d, 497 F.2d 684 (D.C. Cir.), cert, denied, 419 U.S. 1021 (1974); Smith v. United States, 330 F.Supp. 867 (E.D. Mich. 1971).

²¹ For example, after the decision in Dalehite v. United States, 346 U.S. 15 (1953), in which the Supreme Court held that the discretionary function exception to the FTCA barred recovery for damages suffered in an explosion of fertilizer manufactured and distributed under the direction of the United States, Congress provided compensation to the injured parties. Act of August 12, 1955, 69 Stat. 707, §6. Interestingly, the fertilizer had been produced in the aftermath of World War II to provide food to the populations of occupied Germany, Japan and Korea so as to comply with the United States’ obligation, under Article 43 of the Hague Convention, to prevent internal unrest in those countries. Dalehite, 346 U.S. at 19 & n.2.

²² The Fourth Circuit wrote, “it is impossible to find that the Government’s decisions [not to provide police protection] were anything but purely discretionary.” Goldstar, 967 F.2d at 970.