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The question is based on recent events:

Yesterday (15th Nov 2022) a supposedly stray missile hit Polish territory, causing loss of life (2 fatalities) and property damage. Poland is non-belligerent state in the conflict between Russia and Ukraine, while its neutrality may be challenged. At the moment it is unknown whether it is a stray Russian missile intended to hit target in Ukraine or Ukrainian one which failed to intercept a Russian missile. Deliberate targeting of Polish ground is considered unlikely.

So we have a country A invaded by the country B. B launches its missiles against targets in A, A attempts to intercept them. A stray missile flies into territory of non-belligerent country C and inflicts damage. What entity is legally obliged to compensate for the damage (state A, state B, their embassies, state C, nobody)?

Does it matter:

  • who launched the missile (A or B),
  • whether C is strictly neutral or supported either side of the conflict somehow (e.g. delivering war materials)?

2 Answers 2

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None

There is no legal obligation of any country to fix any damage in another. Any compensation or apologies are acts of politics, which is off-topic.

The Customs of war, codified in the Hague and Geneva Conventions say you shall not harm non-involved countries. Still, they contain no punitive measures against a country or its government, especially none for accidents. They allow only suing individuals for war crimes in front of the Hague Tribunal, which requires such an event to be deliberate.

but ATCA et al.?

NO! In general, no Country or government can be sued in its official functions unless its own laws allow it, and only in its own courts but for a few exceptions. That is State Immunity!

And there is a very specific law that codifies that you can't sue a different country in the US but for very small exceptions under the FSIA. ATCA could allow suing an individual, but even ATCA can only very rarely grab hold of persons or corporations that do not have connections to the US. In exactly one case it was successfully used to sue another state.

And neither law will ensure that the target country pays a verdict - the one case where ACTA was used, the case of Warmbier v. [North] Korea 356 F. Supp. 3d 30 (D.D.C. 2018), was never paid by North Korea, neither voluntarily, nor under pressure. It took a North Korean cargo vessel that was seized by the US and then auctioned off by the US to pay the Warmbiers. The case is not very not exemplary for suing states under it, let alone precedent for that.

However, Warmbier is showing the main problem: You can't make another state pay any verdict you get in another country's court unless they want to.

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  • I know the Allies did compensate Switzerland after they bombed Schaffhausen during the Second World War. This may have been a political decision. Nov 17, 2022 at 16:24
  • @MartinBonnersupportsMonica that was most certainly political: they paid for the accidental damage to keep Swiss happy.
    – Trish
    Nov 17, 2022 at 16:40
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    “[T]hat act only allows to bring suit as an alien”. No. Warmbier v. [North] Korea 356 F. Supp. 3d 30 (D.D.C. 2018)
    – kisspuska
    Nov 17, 2022 at 22:31
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    “At best laws like ATCA[, “et al.”,] could allow suing an individual, [a]nd never a government.” No. Warmbier v. [North] Korea 356 F. Supp. 3d 30 (D.D.C. 2018)
    – kisspuska
    Nov 17, 2022 at 22:35
  • @kisspuska You had your vote. I did look into Warmbier. IT does not stand for that you can get at states easily, and it is a negative example actually: North Korea did not take part in the case (they refused to!) and did not pay the verdict. Had the US not seized a vessel of them, they would wait for the money forever.
    – Trish
    Nov 17, 2022 at 23:45
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My first attempt to answer this seems to have caused some misunderstandings. Since specifics matter, I'll talk about Poland, Ukraine, and Russia rather than A, B, and C.

  1. Poland and Ukraine are not at war.
    They were not at war before the incident, and Poland made it clear that assuming the SAM came from Ukraine they do not consider it an intentional act, so they are not at war now. That means the usual wartime rules for collateral damage do not apply.
  2. It is customary to pay reparations after accidental military damage in peacetime, e.g. Iran Air 655, Siberia Airlines 1812 (a precedent involving Ukrainian air defenses).
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    Is this just a guess, or is it supported by some actual law that you could cite to?
    – bdb484
    Nov 17, 2022 at 7:54
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    Sine qua non is more likely to be the test of liability once a pattern of acts of genocide will be established in Russia’s invasion. Ukraine, and its military agents, likely used care reasonably expected given the circumstances, and since the missile was Russian make, liability may arise on the grounds of negligent manufacture too. Not only does this answer have no relation to applicable law, but lacks the same relative to common sense as well. How does it even cross someone’s mind that—provided UA fired—that it was not an accident but an “act of war” against the strongest supporters in EU?
    – kisspuska
    Nov 17, 2022 at 8:27
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    @kisspuska On your last point, I think you misread the answer. The answer isn't saying that in this case it may have been an act of war. It was say, in general, that "if it was not an accident, then it was an act of war".
    – JBentley
    Nov 17, 2022 at 10:56
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    @bdb484, it is the absence of a treaty like a Status of Forces Agreement. When allied nations are cooperating, they write down how civilians in nation A can sue the armed forces in nation B for accidental damages. In the absence of such a treaty, it becomes an inter-state matter. Back during the cold war, if an American tank column went over a West German farmer's fields during peacetime exercises, the last vehicle would be a jeep with an officer to settle the property damages ...
    – o.m.
    Nov 17, 2022 at 11:34
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    If there are sources that support this theory, they could be added to make this a more useful answer.
    – bdb484
    Nov 17, 2022 at 15:03

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