Damage

Abstract

It has been explained in Chapter X, dealing with denial of justice, that Commissioners van Vollenhoven and McGregor in the Janes case ¹) departed from the old theory that liability for an „indirect” denial of justice is based upon a presumption of complicity on the part of the defendant state. The theory formulated in its place was that the Government is responsible in an independent way for its own delinquency, viz. the failure to punish the perpetrator of a crime against an alien. In that chapter we discussed the effects of the two theories with regard to the elements and the amount of the indemnification to be awarded. It was seen that both these issues were directly dependent upon, and hence inseparable from, the view taken of the so-called „indirect” liability for a denial of justice; for this reason we discussed them both in the chapter dealing with denial of justice.