CO129-564-2 Sino-Japanese War- claims for damage against Japanese government. 11-10-1937 - 11-12-1937 — Page 34

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4.

existed, and are consequently a fortiori good if the

hostilities fell short of war. Damage, such as e.g. damage

esulting from bombardment suffered in the course of ordinary

military operations, does not fall within this class, which

therefore will in practice be confined to cases where the

damage can be shown to have been caused want only or as the

result of something like gross negligence and not to be

justified by any consideration of military necessity or to have

been required in order to carry out the operations in hand. It

is probable that not many cases will be found to fall within

this class, but any which so fall will be presented against

the Government whose troops were responsible for the damage.

The third class consists of what may be described

as "war damage" cases, that is to say, clains for which a

belligerent would not be responsible if they had occurred in

the course of a war, such as da age caused by ordinary shell-

fire, or any damage just fied by military necessity or

inevitable occurring in the course of an ordinary operation of

war. In order to sustain the contention that the rules about

ordinary damage such as ust be expected to occur during a war

are not applicable in the present case, and that the Chinese

and Japanese Governments are responsible for any damage done

to the property of foreigners by their troops in the course of

their operations, it would be necessary to contend that the

Japanese military action as a whole in Shanghai was illegal as

such, and, so far as the damage resulted from Chinese action,

that the Chinese were not entitled to defend themselves and

in so doingto enjoy the immunity which attaches under

international law to acts done in the course of ordinary

military operations.

No useful purpose would appear to bo

served/