Bombing of the Haiphong harbour in Vietnam. A Polish ship's crew member has been unsuccessfully demanding compensation for almost 50 years
- The Commissioner received a request to undertake the case of Mr Andrzej, a crew member of the Polish ship MS "Joseph Conrad". The ship was bombed during the attack of the American Air Force on the Haifong harbour in Vietnam in December 1972.
- As a result of the bombing, several people died and some of the crew members got injured, among them Mr. Andrzej. Although the American authorities declared many times that they would pay compensation to the victims of the attack, the claimant has not received any compensation to this day.
- The Commissioner undertook the case and decided to ask the Ministry of Foreign Affairs to provide explanations on this matter, in particular on the Ministry's efforts to provide assistance to victims and to recover the promised compensation.
On December 20, 1792, around 4:30 a.m., the US Air Force attacked the Haifong port in Vietnam. At that time a Polish ship MS "Joseph Conrad", whose crew member was Mr. Andrzej Kulesza, was stationed in the harbour. The ship was distinctly marked with Polish flags, and the American side had received the information that some Polish merchant ships were supposed to be located in the port of Haifong during this period.
In response to this incident, the Polish Ministry of Foreign Affairs urged a US Embassy worker and presented him a protest note stating that "the bombing of the Polish ship constituted an act in flagrant contradiction to accepted standards of international law and the state of Polish-American relations at that time".
The Polish authorities initially asked the U.S. government to provide clarification on the incident, withholding at the same time the the right to seek compensation for those who were affected by the attack. Nevertheless, to this day no decisive measures have been taken to enforce the promised compensation. The victims were only informed about the impossibility of seeking compensation in the U.S. courts due to the prescription of the case.
In the Commissioner's opinion , the claim of the victim demanding payment of compensation is legitimate. The attack on the Polish ship by the American forces constituted a violation of the right to life, under Article 3 of the Universal Declaration of Human Rights and Article 6 of the International Covenant on Civil and Political Rights. According to these provisions, the right to life should have an all-arounf effect, and, as a consequence, it is not only necessary for states to refrain from actions leading to the deprivation of life, but also to undertake active measures to increase its protection.
In the present case, a compensation should therefore be envisaged not only in order to indemnify the injured party, but also to publicly acknowledge the responsibility of the State for arbitrary violations of the right to life, even if non-intentional. The absence of such action results in an additional sense of harm and injustice among victims due to an impunity of the State in this regard.
It is the duty of the Polish public authorities to ensure that their citizens who have been affected by the attack are helped to protect their rights. This obligation results from the Article 38 of the Constitution of the Republic of Poland and Article 2 of the European Convention on Human Rights. Under these provisions the citizens should be, inter alia, protected against any use of force, which can potentially result in death, and which is not "absolutely necessary" nor legitimate.
Although the provisions of the Convention were not yet binding for Poland at the time of the attack in 1972, in the Commissioner's view, they should be applied in the case due to the doctrine of "continuing violation", i.e. a continuous activity of the State resulting in a persistent infringement of the individual's rights (ECHR judgment in the case Iordache v. Romania). The violation in the case consists in a continuing lack of effective action of Polish authorities and the failure to provide to the victim an effective remedy as referred to in the Article 13 of the Convention.
Due to the jurisdictional immunity of the state in individual civil cases, it is not possible to pursue any compensation from the American authorities before the national courts in Poland, and the only possible way in this regard is provided within on the ground of international law and diplomacy.
In the Commissioner's view, the obligation to proceed to ensure that the rights of the victim are respected is therefore incumbent on other Polish public authorities, in particular the executive, whose responsibilities include international relations activites and consular assistance. Failing to take necessary and appropriate action in this regard may constitute grounds for the civil liability of the Polish State for "an unlawful act or omission in the exercise of public authority" (Article 417 of the Civil Code).
The Commissioner has decided to address the Parliamentary, Legal, Treaty, Consular, United Nations and Human Rights Affairs Undersecretary of State, Mr Piotr Wawrzyk, to provide detailed explanations of the actions taken so far by the Ministry of Foreign Affairs and the Government of the Republic of Poland to enforce compensation from the United States of America for damage resulting from the 1972 attack by the Air Force on Haifong Airport in Vietnam and to assess the possibility of taking further action at present.