Ownership or Use? Civilian Property Interests in International Humanitarian Law

Abstract

This artide argues that if and when recovery is possible for civilian property illegally destroyed during war -and there are reasons to believe that it is becoming an ever more realistic possibility-then damages should reflect not just the replacement value or market value ofthe items destroyed, but rather the humanitarian value, or what we refer to as the "civilian use" value. Food, medicine, and dothing should be compensated at higher levels, and according to a different calculus, than jewelry, radios, or sports equipment even though these items may cost the same to replace. For, particularly with respect to large infrastructure like grain warehouses or hospitals, international humanitarian law privileges "users" over and above "owners." This artide first explains the justifications for implementing a "civilian use" approach to damages, and then sketches a rough model of how an international court or tribunal might implement the approach.