Memorandum by Mr. Samuel Herman, Assistant to the Legal Adviser (Gross), to the Assistant Legal Adviser for International Claims (English)

Subject: Liability Under International Law of the Colombian Government for the Bogotá Uprising of April 9, 1948.

You have asked that I prepare a brief memorandum for the files containing my conclusions as to the above.

There is an amplitude of comment in the various despatches, both antedating and postdating the April 9 uprising, as to the contributing sociological, economic, and political factors. I suggest that the salient legal facts are as follows:

Jorge Eliecer Gaitan, the Liberal Party chief, was assassinated on April 9, 1948. The masses in the cities of Colombia were shocked into instantaneous revolt. Mobs roamed the streets of Bogotá and other cities looting, burning and destroying property. The total damage to buildings and merchandise in Bogotá was estimated as between 78 and 86 million pesos; additional damage to the estimated amount of 10 to 12 million pesos was caused in other cities.

No attempt was made by the authorities to restore law and order [Page 471] on April 9. The police were in rebellion. Army troops normally stationed in Bogotá were out on manoeuvres. When they returned they were initially used to reinforce the Palace Guard and protect the safety of the President. Leaders of the Liberal Party attempted to guide the revolt into an organized revolution against the Conservative Government. For this purpose, an Executive Committee of the Liberal Revolutionary Junta was organized on April 9. All of the radio stations were in the hands of Liberal supporters. At 7:00 P. M. on April 9 Liberal leaders met with the President to request his resignation. They remained in continuous session for seventeen hours.

On the morning of April 10, troops appeared in the streets of Bogotá. They recaptured the radio stations and routed the rioters. Skirmishes nevertheless continued for several days. On April 10, the President announced the formation of a new coalition government containing six Liberal and six Conservative members. On April 12, the last center of resistance to the Government capitulated to the Army when 500 members of the police force surrendered.

The President agreed with the Liberal leaders that the Government would refrain from “political reprisals”. The military authorities arrested all leaders of the uprising but released them after perfunctory questioning. Punishment is not expected. A decree was issued providing that all persons charged with common crimes would be tried in court martial. “Simple” political crimes would be tried in the civil courts.

On April 15, the Government created a Damage and Loss Information Board to compile data on the extent of losses. It was required that statements of losses be filed with the Board. Organized business groups, primarily affected by the riots, remained, in general, of the view that legal action seeking indemnification through the Colombian courts might prove unavailing and even if successful the Government might be unable to pay without special property taxation.

On May 25, the Government formulated the following measures of relief to injured persons: (1) tax relief; (2) long term mortgage loans for building reconstruction; (3) long term Government guaranteed commercial loans; (4) special import license facilities to replace lost stocks. Direct compensation for established loss was not provided.

Three American citizens who suffered loss in Bogotá (Messrs. Jack Kagan, Ludwig Wortman and Max Wortman) have asked for diplomatic intervention for damages sustained.

The American Embassy (despatch No. 336, June 1, 19481) perceived no present grounds for intervention. I concur.

The general rule that a State cannot be liable for damages caused by [Page 472] mobs or insurgents is based on the theory that there cannot be international liability where the forces are out of the control of the State. On April 9, the lawful repressive forces of Colombia, the police and the Army, were not under the effective control of the Government. Considering the scale of the uprising, the official impotence, the organization of a “revolutionary Junta”, and the political orientation of the events (explicitly recognized by the Palace discussions), it might well be concluded that on April 9 there was no central government in Colombia.

I am not convinced that the Government was guilty of culpable negligence in failing to foresee impending trouble and in failing to maintain an adequate and reliable force to protect property. While the situation was politically unstable, the proximate cause of the uprising, i.e., the assassination of Gaitan, cannot, on present evidence, be attributed to the Government. There is no indication that Government officials knew of, or instigated the assassination of Gaitan. It appears that the Government had little or no warning of the uprising and no opportunity to take precautions to prevent or suppress sudden riots of the magnitude and fury of those that developed on April 9. The mob acted in “heat of blood”, not in pursuance of a predetermined plan or purpose of injury which an alert Government might with reasonable diligence have known and forestalled.

Indeed it is unclear that the Government has remedied the essential weakness which rendered it impotent on April 9. The cabinet, after April 9, was evenly divided between Liberal and Conservative Ministers, with a non-political head of the Army. Should the Liberals withdraw in a future Liberal–Conservative crisis, violence might again ensue. The police apparatus of the State might again refuse to support the Government. I take it that this dilemma underlies the unwillingness of the Government to punish the leaders of the uprising. Punishment may, in fact, contribute to a further uprising. I take it that for this reason the rather limited punitive measures embarked upon by the Government must be considered “appropriate steps”, precluding diplomatic intervention on the score of failure to apprehend and punish the leaders of the uprising. In point of fact, the Government placed some of these very leaders into the Cabinet.

  1. Not printed.