Memorial submitted by the Government of the United States of America

4. MEMORIALSUBMITTED BY THE GOVERNMENTOF THE
UNITED STATESOF AMERICA *

PART 1

INTRODUCTOKY

This Afemorial is submitted to the Court in pursuance of an
Order of November 26, 1957.in which the Court fixed June 2,1958,
as the time-limit for the filing of the Memorial of the Government
ofthe United States ofAmerica in this case, and in further pursuance
of two Orders, one of May 19, 1958, extending the time-limit to
September 2, 1958, and one of August 12, 1958, extending it to
December 2, 1958. As the Court \vil1 recall, these orders were
issued folloxvingthe filing in the Court of an Application by the

United States of America instituting proceedings against the Gov-
crnment of Bulgaria on account of the destmction by Bulgarian
Government military fighter planes, on July 27, 1955,near the town
of Petrich, in Bulgaria, of an international El Al Israel Airlines
airplane. The airplanc was a civil Constellation type aircraft,
designated and clearly marked as 4X-AKC and as belonging to
the El Al Israel Airlines. The entire crew and al1of the passengers
were killed and their property destroyed.
These passengers were of varying nationalities. Among them were
nine Americans on whose behalf six claims were presented in the
Application. The claims involve thirteen Amencan claimants, and
their claims against Bulgaria have been duly espoused by the United
States of America. The total sum claimed from the Bulgarian

Government on behalf of these nationals is $257,875 In addition
the United States Govemment has other claims which are set
forth in the Application and which \vil1he discussed below.
.4s the Application stated, the subject of the dispute and a
succinct statement of the facts and grounds upon which the United
States global claim against Bulgaria is based are adequately set
forth in an exchange of correspondence between the two Govern-
ments effected through the intermediation of the Government of
Switzerland, and copies of this correspondence are attached to the
Application as annexes. The Unitcd States Government docs not
maintain diplomatic relations with the Government of Bulgaria and
in this case has relied on the good offices of the Government of
S\\~itzerlandto communicate with the Government of Bulgaria.

The Application emphasized, and the correspondence attachcd
to the Application shows, that the Bulgarian Government, upon
the occurrence of the incident, decried it puhlicly, if inadequately;
and, in addition, through the Swiss Government it admitted its
fault for the damage to American nationals, admitted its liability
* See Part IVCorresponde~Section B. Xo53.168 ~IEYORIAL OF U.S.A. (2 XII 58)
to the United States Government and ~romised to Dav for the

damagcs inflictcd. It nlso promised to pre\2éntthc ocçiirr&e of such
an incident in the future and to scek out and punisli those individuals
who were responsible for the actions committed.
The present proceedings were instituted because the Bulgarian
Government later changed its position, disclaimed aii responsi-
bility to the American nationals, failed to punish those individuals
who were at fault or,so far as is known, to take any steps to prevent
a recurrence of such action. Instead, it merely proposed to make an
arbitrary, and pitifdy inadequate, ex gvatia per capita payment
in Bulgarian currency to families of the American nationals who
were killed as a result ofthe Bulgarian deeds for which the Bulgarian
Government is, and has admitted it is, entirely guilty.

The Application further pointed out that the dispute concerned
matters of the character specified in Article 36 (2) of the Statute
of the Court. It involves, among other questions of international
law, the scope and application of international obligations relating
to the overflight of international civil aircraft. It involves the
rights and duties of the government, and its military defense
authorities, in whose territory the intrusion of the foreign civil
aircraft is aileged to have taken place, particularly with respect to
the use of force against passengers; together with issues of fact
(if the Counter-Nemonal should raise them) which, if resolved in
favor of the United States Government, would prove breaches of
international obligation by the Bulgarian Government. It involves

further the nature and extent of the reparations to he made and
other actions to be taken by the Bulgarian Government on account
of aii these breaches.
As to the jurisdiction over the parties, the United States Govern-
ment noted in filing its Application, and now notes, that it has
submitted to the jurisdiction of the Court for the purposes of the
case. It pointed out that the Bulgarian Government had accepted
the compulsory jurisdiction of this Court by virtue of the signature
of its representative to the Protocol of Signature of the Statute
of the Permanent Court of International Justice, and this accep-
tance was completely unconditional; the acceptance became
effective as to the jurisdiction of the International Court of Justice

by virtue of Article 36 (j) of the Statute of the Court upon thedate
of admission of Bulgaria into the United Nations.
That admission of Bulgaria into the United Nations took place
on December 14, 1955. following the Bulgarian Government's
persistent requests for admission. This was between thedate of the
incident of Jnly 27, 1955, and the date of the change of mind by
the Bulgarian Government as to payment of reparation for Ameri-
can nationals killed in the disaster. 170 MEXORIAL OF U.S.A.(2 XII 58)

The plane thus did not leave London at xo:oo local time, but
apparently (seethe Memorial of the United Kingdom in the parallel
case) twelve hours and thirteen minutes later. The initial delay iti
arriving at London was presumably owing largely to engine difficul-
tics of the incoming aircraft due from Istanbul. The El Al Airlines
had sent to Istanbul asubstitute Constellation aircraft, 4X-AKC by
.
its markings (4X being the international symbol for El Al and
AKC being the symbol for the plane in question). 4X-AKC arrived
in London, therefore, eleven to twelve hours late, and approximately
two hours and thirteen minutes later took off for Paris with a new
crew who had been waiting in London for 4X-AKC to amve.
Among the passengers and crew of Flight LY 402 of July 26-27.

1935,as sho~vnby the Israel Ministry of Communications' Reportof
Comnbissioi~ of Inqi~iry, pages 20 and 21 (Annex IS to the Israel
Government's Memorial in the pending parallel case), there were
fifty-one passengers of numerous nationalities.
After the plane left Vienna it somehow got into Bulgarian terri-
tory anclwas intercepted by Bulgarian fighter planes. The Bulgarian
pilots shot the plane down so thatit took lire, burst into flames over

the town of Petrich, fairly close to the Greek frontier, exploded in
the air, and crashed in pieces near the village of Sherbanovo, Bul-
garia, and everybody in the plane was killed.
Among the persons on board there were, as has heen indicated,
nine individuals who not only possessed American nationality, but
whose iiext of kin, making claims on account of the killing of the
passengers, are of American nationality. The United States has

espoused those claims and espouses them in this proceedingl.
There is no question that those for whom the United States has
espoused a claim were Americans on board when the 4X-AI<C left
Vienna.

I. Identity and American Natiot~alityof Decedentsand Claimants

(1) Rachel Avram (also known as Rella Avram) was forty-seven
years old. She was a national and citizen of the United States and
the wife of Mendel Avram, a national and citizen of the United
States, and was the mother of two children, nationds and citizens
of the United States, who are listed in Annex I to the App cation
instituting these proceedings. She was employed as forelady in a
manufacturing plant engaged in the manufacture of women's

persons as "U.S.A." whose claims do not appear in the United States Memorial,rec
namely. Pincus Ingbeman, Toby (Tuba) Shaefer and Zahava Sreinhaum. In
thesecaseseither the individual involved wus not a United States citizen and not
an American national on July27, 1955,or no claimant of American nationality
or citizenshasof July 27,1955has complied with the United States Government's
requirements for nationality of the claimant and the decedent. Presumably the
Israel Government obtained the information as to its annexfrom other sources.
In this connection attention is called to the Israel Memorial's statement of claims,
pages 161.166and 168 [Nolrcproduçed. -Nolc by the Repistry.1 ~~IE~~IORIALOF U.S.A. (2 XII 58) 171

dresses. She purchased her ticket to Tel Aviv from the El Al office
in Pans, to which she had apparently gone in the course of a trip
to Europe to see her son, who was a student in Switzerland. This is
confirmed by her application for an American passport, which \vas
issued (Annex 4). As shown by the manifest of the aircraft involved
(supplied to the United States by the Government of Israel and

contained in Annex z to the Israel Memorial in a parallel case
against Bulgaria now pending in this Court), she is shown as having
embarked at Paris, under the name of Rella Avram, ticket No.
201225 %.There is attached herewith (Annex j)a copy of the ticket
of Mrs. Avram supplied to the United States Government by the
Israel Govemment, \\,hich presumably obtained it from the El Al
Israel Airlines. There is no question whatever that she \vas killed

in the aircraft (see Annex 6). The Bulgarian Government has had
conveyed to the United States Govemment a death certificate
(Annex 7) issued by the Minister of Foreign Affairs in Sofia on
November g, 1955. in \\,hich the cause of her death is described as
having been the consequence of "an aerial accident", and she is
there named Rella Rachel Avram.

(2) Ora Cohen was an American citizen and national who was
the wife of a student of engineering at the University of Kansas, in
the United States of America. Her husband is a citizen and national
of the United States by birth. The decedent, Ora Cohen, though
born in Nancy, France, on Rlarch 30, 1927,became a fully natural-
ized citizen of the United States on June 24, 1952. She \vas regu-

larly employed, prior to the incident of July 27, 1955,as a librarian
at the New York Public Library and, in view of her husband's
decision to study at the University of Kansas, she had applied for a
position as a librarian at the University of Kansas. Her father lived
in Tel Aviv, Israel, and in his desire to see his daughter he had
purchased a round-trip ticket on her behalf at Tel Aviv. She
boarded an El Al Israel airliner at Idlewild Airport in New York

City and debarked at London Airport sometime before July 26,
Igj5. She apparently arrived in Paris in time for Flight LY 402,
for the passenger manifest of the El Al Israel Airlines Ltd. (Israel
Memorial Annex 2) showing the passengers to Tel Aviv who boarded
4X-AKC in Paris on July 26, 1955.shows as No. 15 "COHEN,O." *
Her ticket was No. 231619, as conveyed by the Israel Government
to the United States Government (Annex 8). These facts are confirm-

ed by her American passport application (Annex 9).The Bulgarian

Vt is noted that the Israel Government has reproduced (in zto the Israel
Memorial) copies ofo manifests purporting to he the United States Government's
Immigration Fam 1.466. It is to be noted. however, that the United States Govern-
ment has in no respect authorired the use of this form outside the United States
than that theyshow the persons of American nationalityasin the Applicationse other
instituting this praceeding as on board and killed.
See footnote2.supra. MEMORIAL OF U.S.A.(2 XII 58)
172
Goveriiment has certified that Rlrs. Cohen died, in the air crash in

Petrich, victim of "an aerial accident", in a certificate of the
Rfinister of Foreign Affairs prepared November 9, 1955 (Annex IO).
(3) Anna Hahn (also known as Aenne Hahn and Anne Hahn) was
a housewife and the wife of Dr. Hugo Hahn, an American citizen

residing in New York City. On July 27, 1955, she was fifty-two
years old. Her husband ivasa Rabbi. She had become an American,
as had he, by naturalization, in New York City. Apparentlyshe had
purchased a round-trip ticket for Tel Aviv in New York City (see
Annex II). She boarded 4X-AKC in Pans. It appears that she may

have departed from New York on Air France and exchanged her
ticket in Paris for an El Al flight (seeAnnex 12,her American pass-
port application). Thc passenger manifest of the El Al Airlines (in
Israel Mernorial Anncx 2) shows that a person named "HAHN,A."
boarded the plane at Paris. Her ticket was No. 215446,as the Israel
Government has informcd the United States Government (Annex 13).

She was undoubtedly on board when the plane left Vienna, and the
Bulgarian Government has issued a death certificate (Annex 14) for
her clated November 9, 1955. describing, as usual, that her death
was the result of "an aerial accident" near Petrich.

(4) Mary Katz (also known as Mania Katz) and Anna Katz (also
known as Anne Katz) were the wife and daughter, respectively, of
RIr. Paul Katz. He became a citizen, by naturalization, on Novem-
ber II, 1954. as did his wife, Mary, and his daughter, Anna. Mrs.
Katz worked as a saleslady in an antique shop owned by her

hushand, in New York City, and helped conduct the antique busi-
ness. She and her daughter were making a round trip to Tel Aviv
(see Annex 15, her American passport application). They boarded
the 4X-AKC aircraft at London and held tickets Nos. 225869 and
225875; copies of these have been conveyed to the United States

Government by the Israel Government (Annexes 16 & 17). In this
regard, the name "KATZ, C." on the manifest should obviously be
"A" for Anna Katz. The manifest was prepared by BOAC and is
contained in the manifests shown in Annex Ito the Israel Memorial.
The Bulgarian Government has acknowledged that these two per-
sons were on board the plane and were killed in the disaster.

Bulgaria's Minister of Foreign Affairs has issued a death certificate
for each of them dated November 9, 1955 (Annexes 18 & 19).
As usual, the deaths are described as caused by "an aerial accident".
Anna Katz, at the time of her death, was ten years old. Her rnother,
Mary Katz, was fifty years old.

(5) Avraam M.Mann (alsoknown as Goffman)-see his Amencan
passport application and amendment (Annex 20)-was sixty-one
years of age and an American by naturalization, as are his two
sisters who are his next of kin 3. In his lifetime. he was a radio

a Siaicttifilliof th:\pplicariuinthiit'roc<eilinrtie Gnited States G.,v ern.
mcnt linreeei\,c.clnini fro.)nMinnie SSc.i.if<.i.flii(.alkndwn asZlinn~c MEMORIAL OF U.S.A. (2 XII 58) 173

commentator and an advertising solicitor for New York Radio
Station WEVD. He was apparently known as a doctor and wrote
on medical subjects. He left the United States by boat (the French
passenger liner "Liberté"). He boarded the El Al Israel aircraft
4X-AKC in Paris, apparently paying cash, since the passenger
manifest for Paris (in Israel Memorial Annex 1) * has the entry

"MANN, A., COD." A copy of his ticket, shown as No. 227442
(Annex ZI), has been conveyed to the United States Government
by the Israel Government. That he was among those killed is
evidenced by the Bulgarian Govemment's death certificate (Annex
22)issned by the Minister of Foreign Affairs on November g, 1955,
for "Dr. Avram M. Mann", giving the cause, as usnal, as "an
aerial accident."
(6) The deceased Anna B. Sacks (also known as Annie Sacks,

Hannah Sacks, Annette Sacks and Annette M. Sacks), was bom in
1902 and she became an American citizen in 1913. The deceased
Rene Sacks (also known as Rivga Sacks and Renee Sacks), was a
daughter of the deceased, Anna Sacks. Rene was an American by
virtue of the naturaiization of her parents, but she was born in
Tel Aviv, November 24, 1936. The deceased Deborah Sacks (also
known as Debora Sacks). was anotber daughter of Anna Sacks.
She was aiso bom in Tel Aviv, March 26, 1939, and became an
American citizen by the naturalization of her parents. The claimants

are Max Sacks, widower, and father of Rene and Deborah, and
Naomi Sacks, daughter, and sister of Rene and Deborah. Both
claimants are American nationals and citizens. At the time of her
death Anna was fifty-three years old and was a housewife in New
York City. Rene was a college student at MillsCollegein New York
City and Deborah was a senior year student in a New York City
high school. The passenger manifest issued in Paris (a copy of
which is contained in Annex I of the Israel Memorial filed in the
parallel case *) shows tbat the 4X-AKC was boarded in Pans by

"R. SACKSD , . SACKS and A. SACKS"b , earing tickets Nos. 215447,
215448, and 215449; copies of these tickets have been supplied to
the United States Government by the Israel Government (Annexes
23, 24 and 25). This is confirmed by their applications for American
passports (see Annex 26). The annexed affidavit (Annex 27) shows
that the original flight tickets were purchased in New York City
on July 1, 1955, from Air France; on July 26, 1955, the coupons
for Pans-Tel .4viv were exchanged for El Al tickets, in accordance
with international airline practice. There is no question that they

were on board when the Bulgarian Govemment's fighter planes
shot and destroyed the 4X-AKC, and killed al1the human beings

Grace Schiffrin Goffman), an American citizen and national, as the lawful wife
of the decedent. The United States Government reservetçhe rigatfuture
account of Mrs. Goffman.ount of the dfordamages to include a sfor the
* See footnot2.supra.I74 DIEMORIALOF U.S.A. (2 XII 58)

aboard. over Bulgaria. The Bulgarian Government bas issued death
certificates in these cases dated November g, 1955 (Annexes 28,
29 and 30). referring to Anna Sacks, Rene Sacks and Deborah
Sacks, giving the same cause of death. "an aeriai accident."
It appears from the Israel Mernorial (page 58, paragraph 25).
that a series of Protocols was delivered by the Bulganan Govem-
ment to the Israel representative between July 28, 1955, and
August 3, 1955. Among them, the United States Govemment bas
been informed by the Israel Govemment, was a "Protocol No. 3"
labeled "On Personal Passports Which were Found." Twenty-four
items are listed. No. 5 reads: "Rivga Sacks, Passport Xo. 703720,
issued in the USA.".There is also a reference to item 24 which
appears to be "Pincus Ingberman, Passport No. 40144, issued in
the USA." There is also a reference, Item 23, reading "page of

passport of husband and wife, names missing, husband born in
Russia on April 2, 1894, profession - radio commentator." Con-
ceivably this may relate to the American national, Avraam Mann.
2. The AmericanPassengersand theSzlinoftheEuidence.

Obviously, therefore, none of the Americans killed were any
but innocent persons engaged in innocent intemationai civil air
travel on an intemationally recognized airline licensed to conduct
scheduled flight operations intemationally. Even if it were relevant,
and it is not, these American passengers were not aviators, nor
could they have controlled the equipment or the crew in the ma-
neuvers or flight of the aircraft into or over Bulgaria or any other
portion of the flight. They were killed, without provocation or
justification, by Bulgarian fighter pilots, acting under the authority
and direction, and with the condonation, of the Bulgarian Govern-

ment.
There may be some question as to whether each was killed by
bullets fired from the Bulganan Government fighter planes, by
explosion in the air, or by other causes, such as burning. It was not
necessary for the United States Govemment. nor was it made
possible by the Bulgarian Government. to examine the remains
of the victims, much less to identify them. In any case, the death
of each was directly caused by the unlawful attackby the Bulgarian
fighters.
What occurred on July 27, 1955, in the air space of Bulgaria,
ending in the catastrophe near the town of Petrich, within eyesight
of the Greek border to the south, and a few kilometers from the
Yugoslav border to the west, to the nine American passengers
aboard the El Al civil Constellation aircraft 4X-AKC, and the
relevant facts preceding and following the disaster, are contained,

generally speaking, in three categories of evidence.
The first is the admissions made by the Bulganan Govemment,
publicly and in diplomatic correspondence, in connection with the
United States Government's claim. These show an unquestionable BIE~IORIAL OF U.S.A. (2 XII 58) 175
admission of euilt and liabilit.. leavin- onl- the problem of the
computation of damages.
The second is the special investigation which the United States
has conducted of the circumstances of the flieht of the aircraft.
the attack by Bulgarian fighters, the killing oflthe American
sengers and the destruction of their property, together with the
failure of the Bulgarian Govemment to keep its promises relating
to the punishment of the responsible persons and the prevention
of a recurrence of such an incident. This evidence will be indicated
below.
The third is the admissions made by the Bulgarian Govemment
to other Governments which are concerned in the disaster. Some
of these are apparently described in the Memorial filed by the

Government of Israel. nationals of which constituted the major
single national group aboard the aircraft. The Govemment of
Israel apparently has engaged in long and protracted negotiations
with the Govemment of Bulgaria. The United States Govemment.
of course, was not a party to these negotiations and is in no way
bound by them, but it feels free to advert to such statements of
fact as are reported in the Memorial of the Government of Israel
and bear upon the liability of Bulgaria to the Government of the
United States. The same is of course true as to any negotiations
between the Govemment of the United Kingdom and the Bulgarian
Govemment.

So far as the Government of the United States is concemed, ali
its diplomatic correspondence and the contents of its negotiations
with Bulgaria are annexed to the Application filed in this Court on
October 28, 1957, in the form of five annexes. The United States
Govemment believes that the correspondence from the Bulgarian
side is accurately represented,not only because the Swiss Govern-
ment is universally known for its impartiality and high standard
of diplomatic conduct, but because the admissions made to the
United States Government were also made in the Bulgarian Govern-
ment's controlled radio and press. They also reiterate information
which was conveyed by the Bulgarian Government to other Govern-
ments which had nationals aboard 4X-AKC when it was destroyed
in the air near Petrich, Bulgaria, by Bulgarian fighters, on July 27,
1955.
1. In a communiquéissued by the Bulgarian Telegraphic Agency
on July 28, 1955, announcing the appointment of a govemmental
commission to investigate the incident the Bulgarian Government
stated, after reporting the intrusion into Bulgaria of theaircrafton
July 27 at 0735:176 MEMORIAL OF U.S.A. (2 XII 58)

"The Anti-Air Defense was unable to identify the aircraft and,
after repeatedwarnings,opened fire,as a result ofwhich the aircraft
fell and crashed in the area north of the town of Petrich.
Al1the persons aboard the aircraft perished." (See Annexes 31
and 33.)
The radio monitors who heard the broadcast of the Bulgarian

statement (Annex31) stated that the radio announcer said that the
plane was shot down after "a few warning shots". In thc facts of
the present case the difference in translation is not material.
The Israel Government. in a note verbale dated July 28, 1955,
properly stated:

an "unarmed civil airliner of the familiar Constellation type, theg
action of the Bulgarian security forcesan be understood oiily as
deriving from a wanton disregard of human life and of the elemen-
tary obligations of humanity which should have governed their
conduct." (Annex 15,Israel Mernorial.)

The Court will see from the facts stated belolv that there is no
question that while the observers in the radar stations naturally
did not see the lettering or type of the aircraft, the fighters who were

dispatched to intercept the aircraft saw it in clear, sunny daylight,
flew around it, identified it, undoubtedly communicated to the
ground control by radio telephone (VHF) its civil character and the
words and markings painted on it, and were nevertheless ordered,
or re-ordered, to shoot the civil airliner down. The United States
Govemment appends hereto (Annex 32) photographs of El Al
planes from which it will be seen what the Bulgarian fighter pilots
saw and reported to the ground control. A photograph of 4X-AKC
appears further in Annex 4 to the United Kingdom filernorial.
The Bulgarian statement is subject to another interpretation.
That is that since the radar station had no notice of any aircraft

expected to cross the border at Trn at that tirne, the 4X-AKC was
by definition and ieso factoan unidentified and hostile aircraft and
the fighter planes were dispatched with prior instructions to shoot
it down and kill the occupants. This interpretation is in fact most
consistent with the facts as developed by investigation, which will
be seen in the sequel.

2. As its very first communication to the Bulgariaii Government
when the shooting down of 4X-AKC was reported, including the
kiiüng by Bulgarian fighters of American nationals, the United
States Govemment delivered an aide-mémoire, through the Swiss
Legation in Sofia, to the Bnlgarian Government. The date \vas
August 2, 1955 (Annex I to the Application). As will be seen, the
United States Government in that aide-mémoire emphasized first
that the Bulgarian Government had acknowledged responsibility
for a grave violation of accepted principles of international law. MEMORIAL OF U.S.A. (2 XII 58) '77

The United States Government demanded that the Bulgarian
Government take the following actions:
"(1) take al1 appropriate measures to prevent a recurrence of
incidents of this nature and to inform the United States Govern-
ment concerning these measures; (2)punish al1persons responsible
for this incident; and (3) provide prompt and adequate compen-
sation to the United States Government for the families of the
United States citizens killed in this attack".

The acceptance of the responsibility for these killings by the
Bulgarian Government was contained not only in communications
to other governments, such as the Government of Israel (see the
Israel Memorial) and the Government of the United Kingdom (see
the United Kingdom Memorial), as well as various governments
whose nationals were passengers or crew members on the aircraft.
but in the Bulgarian press and radio.
3. The United States notes that in its broadcast in the Bulgarian

Home Service, July 28,1955,1000 GMT, the Bulgarian Government
said :
"On July 27, at 7:35 a.m. Bulgarian time, as it was subsequently
learned, an Israeli passenger aircraft deviated from its flight route
and in the area of the town of Trn entered, without warning, the
air space of Bulgaria; it flew over the towns of Stanke Dimitrov
and Blagoevgrad in a southerly direction toward the town of
Petrich.
The Anti-Air Defense was unable to identify the aircraft and,
after repeatedwarnings, opened fire, as a result of which the aircraft
fell and crashed in the area north of the town of Petrich.
Al1 the persons aboard the aircraft perished.
In this connection the Bulgarian Telegraph Agency is authorized
to state that the Bulgarian Government and the entire Bulgarian
public express their profound regret for this unhappy event.
The Coiincil of Ministers of the People's Republic of Bulgaria
appointed a governmental commission composed of the following
persons:
Minister of Foreign Affairs, Dr. Mincho Neychev,
Minister of Interna1 Affairs, Dr. Georgi Tsankov,
Minister of National Defense, Army General Petur Panchevski,
Minister of Public Health, Dr. Petur Kolarov, and,
to establish the detailed circumstances under which the unhappy
event occurred."

This information was repeated in the officia1 newspaper, Rabot-
nicheskoDelo, No. 210, July 29, 1955 (Annex 33).
The United States Government, of course, does not assume that
these high cabinet ministers themselves physically engaged in

on-the-spot investigation. They undouhtedly interviewed, or had
interviewed, the Bulgarian participants-the pilots, ground con-
trollers, radar observers-and they had others who wrote them178 MEXORIAL OF U.S.A. (2 XII j8)

reports on these subjects. The United States Government is eu-
titled to see those reports and the minutes of those conferences
(see page 249 below).
It may be noted from the evidence analyzed helow that if the
4X-AKC was shot down by the firing of "a feiv warning shots", they
were not really calculated to warn but to kill.
If, however, the Bulgarian text was the same as printed in

Annex 33, there were admittedly no warning shots at all; and the
nature of any warning is not given, nor has it ever been given. The
statement about signals inthe Bulgarian radio broadcast of August
3, discussed below, adds nothing. Besides, in fact, if the Bulgarian
Government already knew the facts it recited there was nothing
left to investigate.
4. The Bulgarian Home Service further statedon August 3,1955,
0430 GMT:

"On the hasis of the information presented in the final protocol
of the special governmental Commission, charged with the investi-
gation of the circumstances surrounding the catastrophe of aii
Israeli aircraft in the air space of Bulgaria, the BTA has been
authorized by the Government of the People's Republic of Bulgaria
to make the following announcement:
1. On July 27 of this year, at 7:10 a.m. Bulgarian time, a tour-
engine passenger aircraft of the Constellation type belonging to the
Israeli airlineElAl'deviated from its flight route by approximately
130 kilometers and entered, without warning, the airspace of Bul-
garia in the area of the town of Trn. After having penetrated 40 kilo-
meters into the interior of the country, in the eastern direction
from the town of Trn,the aircraft turned south, flewover the toms
of Breznik, Radomir, Stanke Dimitrov, and Blagoevgrad and
continued to fly south toward the Bulgarian-Greek border. The
aircraft flew over Bulgarian territory a total distance of zoo kilo-
meters.
z. The appropriate command post of the Anti-Air Defense, after
having received information to the effect that a foreign aircraft of
unknown origin had penetrated Bulgarian airspace, issued an order
to two fighters of the Anti-Air Defense to pursue the foreign aircraft
and force it to land at one of our airfields.
3. The fighters discovered the aircraft south of the tom of Stanke
Dimitrov and it was warned, by means of the eçtablished inter-
national signals, thatit should follow the pursuing fighters, to land
at the airfield to be indicated by them. The aircraft failed to obey
this instmction and continued its flight south toward the town of
Petrich. The fighters, seeing that the violating aircraft was attempt-
ing to escape across the border, opened fire at it. as a result of which
the aircraft caught fire and crashed in the area of the town of
Petrich. As a result of the explosion which occurred in the air the
aircraft was totally destroyed and the 51passengers and 7 members
of the crew perished.
4. The above circumstances indicate that the reasons for the
unfortunate event involving the Israeli aircraft are the following: MEMORIAL OF U.S.A. (2 XII 58) 179
(a) The aircraft deviated from its route. violated the state
border of Bulgaria, and, without warning, penetrated
deeply into the airspace of Bulgaria. Beiiig e uipped with
excellent navigation instruments, the aircra t could not
fail to realize that it had violated the state border. Even
after having been warned, it failed to obey but rather
continued its flight to the south, in the direction of the
Bulgarian-Greek border.
(b) The orgaiis of the Anti-Air Defense displayed haste. They
did not take al1the necessary steps to force the oircraft to
land.
It must also be noted that for many years, disregarding the
sovereignty of our country, certain circles have been taking the
liberty of violating our state borders regularly. In the course of
the lastseveral years repeated illegal flights over our borders by
aircraft of 'unknown nationality' were registered in our country.
During those illegal overflights saboteurs equipped with weapons,
radio transmitters, andother material weredropped on ourterritory.
The Government of the People's Republic of Bulgaria protested
on several occasions to the Secretariat of the United Natioiis, which,
unfortunately, produced no result. All this created an atmosphere
of tension which made it necessary that measures to protect the
security of our country be taken. It was uuder such tension that
the unfortunate incident in vol v-n^he Israeli aircraft became
poThe Bulgarian Government and the Bulgarian people once again
express their deep regret about this unfortunate event, which
occurred to the completely innocent victims in the catastrophe.
They express their warmest desire that such unfortunate events
never occur again, and, on their part, will find and punish those
guilty of the catastrophe and will take every step so that such
unfortunate events shall not occur again on our soil. However, the
Government considers that this can be accomplished only if the
sovereignty and national dignity of al1 small and big nations are
fully respected.
The Bulgarian Government expresses its profound syrnpathy to
the relatives of the innocent victims lost in the catastrophe and
lias stated in its note to the Government of Israel thatit is prepared
to assume the obligation to compensate duly the families of the
victims and to contribute its share of compensation for the material
losses."
This report was also repeated in Rabotnichesko Delo, No. 215,
August 3, 1955 (Annex 34).
5. Itis significant that broadcasting in English to North America,
on August 12, 1955. oroo GMT, the Bulgarian Government com-

plained of the fact that there was a "dirty anti-Bulgarian cam-
paign" to cal1the Bulgarian people "'an uncivilized people, a nation
of barbarians and murderers', and so forth" (Annex 35). The
United States Govemment, in this connection, believes it appro-
priate to cal1 attention to one of the statements made in this
broadcast intended for American ears.180 ME~~ORIAL OF U.S.A. (2 XII 58)
"The Bulgarian Government and people expressed their pro-
foundest regret with regard to the incident of the Israeli aircraft.
as a result of which incident innocent people had lost their lives,
and expressed their sincere condolences to the relatives of the
victims.
Our Government stated categorically that it would punish the
culprits. It informed the Israeli and other interested governments
that it is ready to pay compensation to thefamilies of the victims
and will bear the relevant part of the compensation for material
damages. The Bulgarian Government took al1measures to prevent
the recurrence of such accidents on Our territory. Consequently,
it hasdone everything that could and should have been done in
this case."

A Bulgarian version of this statement was puhlished in Rabot-
nicheskoDelo, No. 223, August II, 1955 (Annex 36).
This is a curious statement. Part of it is demonstrably false;
for no evidence appears that the Bulgarian Government took any
measures to prevent the recurrence of such incidents in Bulgaria;
on the contrary, as the sequel will show, there is evidence to the
contrary. But, to Say, as the Bulgarian Government does in the
last sentence of the paragraph just quoted, that its promise to
pay compensation and itspromise to punish the culprits means
that the Bulgarian Government "hasdoneeverything that could and
should have heen done in this case" is preposterous, although
completely untruthful as regards the Bulgarian Government's con-

duct. It obviously intended to promise but not to perform its
promise. The present proceeding is the consequence of the breaches
of the Bulgarian Government of its promises and its tortious actions,
first in causing the disaster and secondly not keeping its solemn
word, aggravated and exacerbated hy the misrepresentation of its
intentions and state of mind.

6. On August 4, 1955. the Bulgarian Government sent a note
to the United States Government through the intermediation of
the Swiss Legation, No. 42803 (Annex z to the Application), in
which the Bulgarian Government stated that it had conducted an
investigation of the incident of July 27, 1955, hy a "special govern-
mental commission". It said further that this commission had
"irrefutahly determined" that anEl Al Israel aircraft, without
warning, entered the Bulgarian air space penetrating a distance
of 40 kilometers (which would be approximately twenty-four miles)
and that it had overflown Bulgarian territory, in a southerly
direction, for a distance of approximately zoo kilometers (approx-
imately 120 miles). It stated that south of the town of Stanke
Dimitrov (which the United States takes to he the town generally

known as Dupnitsa and which could be as little as sixteen kilo-
meters, in the mountainous area, from the YugosIav border) the
aircraft was "intercepted" hy two Bulgarian fighter planes "which
received orders to force it to land at a Bulgarian airport". ~IEMORIAL OF U.S.A.(2 XII 58) 181

It is of interest to note that the Bulgarian Government does
not Say how the orders were transmitted to the fighter planes nor
by whom. Presumably these orders, if they existed at all, were
transmitted either hefore the pilots set out from their base, from
persons in authority over them at the base, or were transmitted
by radio telephone in the course of flight before or after the civil
aircraft had been identified by the two fighters and described by
radio telephone to the ground control authorities.
The note then continues that the "fighter planes warned the
aircraft, in accordance with international regulations, to land".
The note does not Say what the waming consisted of nor what the
regulations are to which it refers. This Government knows of
none. It is a demonstrable fact that al1pilots in the air are capable

of conveying understandable signals to other yilots, by voice radio
or by hand signals or by motions of the signaling aircraft. Under
circumstances comparable to those of this case, the United States
Government knows of no instance where intcrceptor aircraft have
been unable to make themselves understood, by word of mouth
or by their motions, or by maneuvering of the swifter fighters
around slower propeller-driven transport aircraft.
The Bulgarian Government, it is submitted, should be required
to state to this Court precisely what "marning" signals were given
and by whom, and with a specific recital of the surrounding circum-
stances. This will he covered below (see page 251).
It must be considered, however, that after the alleged inter-
ception, the plane continued to fly in a southerly direction. This
would bring it closer both to the Yugoslav border and to the

Greek border. Iluring this activity conversations hetween the
Bulgarian fighter pilots in the air and the Bulgarian ground control
authorities were surely taking place. The civil aircraft flew in an
area at a cruising altitude (which, as is well known, would be around
17,500 feet), at a speed far less than the fighters', over terrain
which on the map appears to make Bulgaria indistinguishable from
Yugoslavia, for there is no change in the color of the terrain that
marks Yugoslavia from Bulgaria, nor clear check points to differ-
entiate between the two countries (see Anncs 37).
The note continues that in spite of the warning by the fighters,
the plane "continued to fly in a southerly direction iri an atternpt
to escape across the Rulgarian-Greek frontier". This must be the
conclusion madc by the Bulgarian Government since witnesses
to the state of mind of the pilot of the civil aircraft canriot be

produced, and as to the pilot, the Biilgariaiis have killed hini.
It may also bc assumed that the pilot may have bclieved that he
was over Yugoslavia, or even over Greece (if the CIV radio log
in the Israel Inquiry Commission Report contained in the Israel
Memorial is relcvaiit), and thought that it \vas the duty of the
Bulgarian fighters to desist from pursuit. In any case, as \vil1be
emphasized below, he may have assumed. security and other182 MEIIORIAL OF U.S.A. (2 XII 58)

legitimate contrary special considerations being absent, that the
sole function of fighter planes in such a case, and in the circumstan-
ces described, was to identify the overflyingcivil aircraft and report
its name and number to ground control so that the Bulgarian Gov-
ernment, in accordance with general international practice, could
then take up with the government of the nationality of the aircraft
the circumstances of the alleged overflight. This is the well-estab-
lished practice in al1 civilized countnes and among al1 civilized
governments. This subject is discussed further below (seepage 235).
The United States Government furthermore wishes to point out
that if, as the Bulgarian Govemment charges, 4X-AKC was inter-

cepted just south of Stanke Dimitrov (generally known as Dup-
nitsa), it is not accurate to justify the shooting by a statement that
the 4X-AKC tlew to the Greek border, a distance of approximately
zoo kilometers. Kt has already been seen that 24 miles, the area of
penetration charged against 4X-AKC, is a tnfling amount of space
for an airplane flying at 240 miles an hour, or at an altitude of
17,500 feet or more, with no visible changes in terrain to show
where Yugoslavia ended and Bulgaria hegan. But it further appears
from the Bulgarian statements that most of the distance from the
north to the soutb over which 4X-AKC is alleged to have flown it
was escorted by two Bulgarian fighter planes and acting under
their control, namely the distance from Dupnitsa to the Yugoslav

and to the Greek borders, and from the north border of Greece to
Petnch, where 4X-AKC was finaüy destroyed.
The Bulganan note does not Say where the civil aircraft could
lawfully have landed, or at which airport it was told to land. Nor
does the note state where in the mountains of western Bulgaria,
near the Yugoslav and Greek borders, the Constellation aircraft
could have landed with safety to the passengers. The United
States Government has found no such place. If the Bulgarian
Government had intended it (4X-AKC) to land at any airport, it
could have communicated that fact by radio or by signal from the
fighters. The Bulgarian Government should, it is submitted, give
the whole truth as to this suhject (seebelow, pages 249 ff.)

The note then continues:
"In these circumstances,the two fighter planesof the Bulgarian
.4nti-Air Defenseof this area, astonished by the behavior of the
aircraft. openedfire,as result of whichit [the civilaircraft] caught
fire shortly thereafter and crashed in the area of the town of
I'etric'."
The foregoing paragraph contains the essence of the admission
of the Bulgarian Goveniment's essential liability. The American

passengers aboard the plane were not in the cockpit; they were
presumably sitting in their seats as required, and they were not to

This translation variesslightly from that contained in Anne** to the Application
tocomport more clearly with the Bulgarian meaning. 31E.VORIAL OF U.S.A.(2 XII j8)
183
meddle with the pilots. The "astonishment" of the fighter pilots
must surelyhave been accompanied by instructions from the ground
by higher Bulgarian Governmental authorities. Indeed, it may be
assumed from the character of the preceding language of the note
that the instructions to fire were given to the pilots before they left
the ground. The fact, if it be true. that the pilots were "astonished"
by the behavior of the aircraft and therefore "opened fire" causing
the death of al1aboard, is difficult to credit. Moreover, "astonish-.

ment" would seem hardly a reason for firing at the fuselage of the
aircraft unless there was an intention to kill and destroy.
It is noted that there is no statementwhat the pilots did to rely
on "international regulations". There is not even any allegation or
proof that they limited the firing to innocuous bursts or, in fact, to
such portions of the aircraft which would, with least injury to the
passengers, cause the crew to land at an appropriate landing place.
The United States Govemment has reason to believe that therewas
no true warning firing, and in fact, no other signals of similar
significance, and this will appear from testimony which the United
States Govcrnment will give.

7. The United States especially draws the Court's attention to
paragraph 2 of the conclusions of the Bulgarian investigation com-
mission: "The Bulgarian Anti-Air Defense manifested a certain
haste and did not take al1the steps required to force the aircraft
to obey and to land." (SeeAnnex 2to the Application.)
The United States Government calls attention to the fact that
in other statements (see for example Annex 34 and the Bulgarian
Home Service of August 3, 1955, reported at pages 178-179 szcfira)
the Bulgarian Govemment did not inodify the word "haste". With
or without the adjective, the statement can only be interpreted, in
spite of its vagueness and understatement, as a complete confes-

sion of the wrongfulness of the actions of the Bulgarian fighters and
of the ground controllers. "A certain haste" can only mean that
circumstances had not arisen in which any firing at the aircraft was
justified. The word "certain" must be taken to mean "sure", and
"haste" is a cunous way of describing a wrongful attack.The words
"did not take al1the steps required" further constitute a confession
of wrong. There are no circumstances recited in the Bulgarian note
which would cal1 for the El Al airplane to land under any condi-
tions, much less to be destroyed in the air.

8. The United States Govemment takes this opportunity to
point out further that the Bulgarian Government has not made
knolvn the full text of the report, if any existed, of the special
Govemment commission which allegedly made the investigation. It
has not made known, therefore, the names of the fighter pilots, the
terms of their orders, the contents of their communications with
the ground, the names of the ground controllers, including theradar
observers, the commandant of the air field to which they belonged hiEAlORIAL OF U.S.A. (2 XII 58)
184
and to which they reported, and the names of the senior supervi-
sors. however denominated, who controlled the actions of the ground
controllers. The Bulgarian Govemment should make these fully
known to this Court and to the United States Government as a
party. The United States Government has observed, in the Memo-

rial submitted by the Government of Israel in a companion case,
that the Govemment of Bulgaria has withheld from the Govern-
.ment of Israel certain other relevant documents which wcre request-
ed (see Israel Memorial, pages 55and 56). The Bulgarian Govern-
ment shonld account to the United States Government for the
copies of the manifests, flight plans, working charts and radio log
of 4X-AKC found at the crash site near Petrich (seepage 249).
g. The recital by the Bulgarian Govemment of alleged prior
failures by foreign aircraft to observe the sovereignty of the air
space of Bulgaria is irrelevant to this case. The incidents referred to,

of protests by the Bulgarian Govemment to the Secretariat of the
United Xations, relate entirely to the alleged incursions from the
Greek border of aircraft during a period when the Government of
Bulgaria was notoriously interfering with the sovereignty of the
Government of Greece and aiding Greek communist rebels and
guerillas with bases in Bulgaria. This subject is discussed in more
detail in an annex (see Annex 38).
Furthermore, the United States Government believes it relevant,
since the Bulgarian Government bas raised the subject. to refer to
the United Nations' characterization of Bulgaria's conduct in the
Greek Civil War, which Bulgaria fostered.
The General Assembly of the United Nations has had a number
of occasions to deprecate and condemn Bulgarian military inter-
ference in Greece. The subject, for the record, is discussed in
Annex 39.

IO. In any event, an overflight taking place at Trn on the west
border, in a commercial passenger aircraft, of the type involved
herein, would be visible to mountain and other observers al1along
the Bulgarian side of the Yugoslav frontier, north and wst. The
airplane could be visibly only that of a relativcly slow propeller-
driven commercial airliner. Radar observers at the various radar
sites, including the one from which the fighter pilots who shot the
civil airliner down originated, which apparently was Kumaritsa,
and to which they were continuously reporting, would know that
this was a civil airliner off course making its way from Yugoslavia

to Greece. Indeed, ashas been noted, the intercepting fighters could
not but have read clearly painted on the body of the Constellation
that it was 4X-AKC and that it belonged to the El Al Israel Air-
lines. This mil1be the subject of further comment below.
II. The "atmosphere of tension" to which the Bulgarian Govern-
ment refers in its paragraph on this subject constitutes no justi-
fication for the killing of the nine American passengers, or ofanyone MEMORIAL OF U.S.A. (2 XII 58) 185
else. Nor does the United States Government believe, in the light
of its experience in other cases, some of which have heen brought

to this Court, that an "atmosphere of tension" had anything to do
with the incident. The United States, in pursuing the present pro-
ceeding, is more concerned with the possibility that certain govem-
ments, of which Bulgaria is one, are so dominated by the orders of
another military air power that any overflight, however innocent,
is met by instantaneous shooting, without waming and without
inquiry. This too will be the subject of further comments below.

12. The United States Govemment calls attention to the ex-
pression of sympathy in the last two paragraphs of the Bulgarian
Government'snote of August 4, 1955. Particularly it calls attention
to the statement that the Bulgarian Government "will cause to
be identified and punished those guilty of causing the catastrophe
to the Israeli plane and will take al1necessary steps to insure that

such catastrophes are not repeated on Bulgarian temtory".
On this subject there is no evidence that the Bulgarian Govern-
ment has taken any steps but approval and commendation of the
action of the responsible perçons. The Bulgarian Govemment, of
course, knew by August 4, 1955, who the pilots were who had been
sent up to intercept and shoot the civilian airplane down; it knew
who had given the pilots their orders to shoot; and it knew who
else was responsible for the actions of the fighter aircraft and of
the ground controllers. The Bulgarian promises in this context
must be taken as cynical and cruel, and as empty formalities
uttered without any intention of performance. In fact, as the sequel
shows, there never was any performance-there were, indeed, on
the contrary, resounding officia1approval and, it seems, awards to

participants for a praiseworthy action.
Asfor the sympathy for the victims and the assumption ofrespon-
sibility for compensation, the present case is based upon the fact
that this promise too has never been performed, and it was made
deceitfully since it was never intended to be performed. The ex-
pression of sympathy was not only not equivalent to compen-
sation; in the context it was cruel.
The United States Government submits that, in evaluating these
international events and diplomatic exchanges, it is important to
bear in mind what the Bulgarian Government actually did.
The Bulgarian Telegraphic Agency, the Bulgarian Government's
officia1news agency, announced on July 28, 1955, that a Govern-
mental commission would investigate the "circumstances under
which the incident took place". The commission consisted of the

Rlinister of Foreign Affairs, Dr. Mincho Neychev, the Minister of
Interna1 Affairs, Georgi Tsankov, the Rlinister of National Defense,
Army General Petur Panchevski, the Minister of Public Health,
Dr. Petur Kolarov, and the Chief Prosecutor of the Republic,
Yordan Chobanov. As has been noted, the commission's report
14186 ~IE~IORIAL OF U.S.A. (2 XII 56)
was never published, but a paraphrase of what purported to be

its contents was published by the BTA on August 3,195 j (Annex34).
It is however most interesting to note. as evidencing the true
character of the Bulgarian Government's position, that on "People's
Army Day", September 23, 1955, the Bulgarian press and radio
published an account of a large meeting organized by the Ministry
of National Defense, the Sofia City Committee of the Bulgarian
Communist Party, and other organizations, in the "Home of
Culture" at the hfinistry of Interior at which, it was said (Rnbot-
nichesko Delo, September 24, 1955). there were thousands of com-
mander~ and soldiers from the Bulgarian People's Army, as well
as others. Among the speakers \vas the Minister of National Defense.
Petur Panchevski, as well as his deputies, and other army officers,
including Major General Slavcho Turnski, and the military attaché
of the Soviet Union. It is significant to note the following state-

ments from the speech of the Minister of National Defensc, a
member of the commission which allegedly investigated the inci-
dent of July 27, 1955 (see Annex 33).
The radio account (Sofia, Bulgarian Home Ser\.ice. September 23,
1955. 1600 GMT, referring to Order Xo. 94 by the Minister of
National Defense of the Bulgarian People's Republic) reports
General Panchevski's statements, in part, in these tcrms:
"Our People's Amy is being built up, trained, and educated on
the example and mode1 of the glorious Soviet Army, which has
been crowned with historic victories.The Bulgarian soldiers, NCO's,
officers, and generals are learning night and day from the rich
military and educational experiences of the Soviet Army and are
persistently mastering the Soviet military art which has beenproved
in battle.
The Bulgarian People's Army is an inseparable part of the armed
forces of the powerful camp of peace and socialism, which is a loyal
protector of the peaceful building of socialism, a force whichoes
not threaten anybody and which does not have aggressive designs
toward anybody, although it is always prepared to defend every
inch of thesoi1of the Motherland. The Bulgarian people, who are
devotedly struggling for the great cause of socialism, can be con-
vinced that the soldiers and officers will not spare any efforts to
increase and improve the preparedness for battle and training of
our .4nny so that il can crush with its mailed fist any enemy who
dares to threaten their peaceful lahor, their freedom, or national
independence."
The editorial in Rabotnichesko Delo, September 23, 1955 (as
reported by the Bulgarian Home Service of that day (Annex 40)).
States that the Bulgarian people love their Xotherland and know
well how to defend its frontier. One may draw two inferences. The

first inference is that theaster of the Bulgarian Army at the lime
was the Soviet Army and secondly, that there is a significance in
the emphasis of the protection of the frontier of the Bulgarian
Motherland. The only occasion of any recent character in which MEMORIAL OF U.S.A. (2 XII 58) 187
the Bulgarian frontier had'to be "protected" was the alleged in-
vasion of the El Al aircraft of July 27,1955.

13. Annex 3 to the Application gives the detailed diplomatic
claim note of the United States Government of August 22, 1956,
delivered in Sofia through the Legation of Switzerland to the
Bulgarian Government. It properly shows, since the Bulgarian
Government has never challenged them, that six American clairns
are outstandirig on behalf of decedents, totaling nine in number, for
amounts specified as to each claim. The total amount is $257,875.
The United States Government does not propose, in the present
document, to do more than refer to Annex 3 since there has been
no contest by Bulgaria as to the nationalities of the decedents or

of the claimants, the death of the decedents, the cause of the deaths,
or the amount of injury suffered.
14. On August 8,1957 (seeAnnex 4 tothe Application, Bulgarian
statement to the United States), the United States Government
was first informed by the Swiss Government that the Bulgarian
Government had now stated that it was "not responsible for this
catastrophe". This \\,as an astonishing statement. exactly the oppo-
site of the statements made to the press and the public and par-
ticularly in the reply to the note to the United States Government
of August 4, 1955. In that reply, among other things, the Bul-

garian Government said that it was "prepared to assume responsi-
bility for compensation due".
The Unitcd States does not believe it proper to indulge in any
hair-splitting as to the meaning of words. There had been a firm.
solemn admission of international liability to the United States
Government. The same announced assumption of responsibility
was made to al1 Governments concerned, and to the press and
public (seeMemorialof the United Kingdom, Mernorialof Israel, and
Annexes 31 and 33 of this Memorial).

15. The "statement" continued: "The responsibility lies with
the Israeli Company". No explanation was made by Bulgaria of
this statement. As will be seen below, even if the El Al Israel
Airlines should in the context be deemed guilty of some wrong in
permitting the Constellation airplane 4X-AKC to drift or fly over
Bulgarian territory, that would not constitute any legal justification
whatever for Bulgarian fighters to kill innocent American passen-
gers on board the plane. This subject will be discussed more fully
below, but certainly nothing is recited by the Bulgarian Govern-
ment in the way of facts or law to transfer liability from the Bul-
garian Government to the El Al Airlines, at least in so far as inno-
cent passengers are concerned. It was Bulgarian fighters, under

Bulgarian officia1control and orders, which attacked and killed
the American passengers.
The "statement" proceeded to recite that as a "gestnre" the
Bulgarian Government was willing to make an ex gratia grant to188 ME31ORIAL OF U.S.A.(2 XII 58)

the families of the victims, on a per capita basis, of j6,ooo leva,
the Bulgarian local currency. This serves to make the Bulgarian
Government's position more untenable. Even if the compensation
were in any sense, in any case, adequate, the ex gratia aspect

alone would make the offer unacceptable to the United States
Government. The acceptance of the Bulgarian offer would serve
as a precedent justifying the killing of American passengers
hereafter, in any innocent aircraft, in any part of the world, which

might unintentionally or for any valid reason overfly, without
danger to the security of any country, the air space claimed by
any other country. hlillions of Americans, in American and foreign
civil aircraft, travel by air. Rloreover, it would justify and provide

a precedent for the killing of air crews throughout the world (many
of them consisting of Americans) and the destruction of American
civil aircraft engaged in international air travel. The United States
Government conceives that it owes a duty to its citizens and to

al1 the civilized world to resist and to oppose this action of the
Bulgarian Government. It believes. respectfully, that the proper
forum for this highly important international action is the Inter-
national Court of Justice.

16. The United States Government calls attention to the follow-
ing statistical facts:
The publications of the International Civil Aviation Organiza-

tion, covering the air miles flown by airlines of the states which are
contracting members, show the following as to the proportion and
absolute kilometerage of international flight by American airlines
(Annex 41) :

Total Scheduled Services International Scheduled
International& Domestic Operations
Kilometres Passenger Kilometres Passenger
Flown Kilometres Flown Kilornetres
Performed Perfarmed
1951
United States 836.192 ïr.rS5.53t 160.454 4.296.658
Total for 57 States 1,570,809 34.308.918 494,642 1r.672.798
'952
United States 933,350 25,025,063 t70.659 4.867.mo
Total for 58 States 1,708,276 39,413,155 538.235 r3,24o.g80

1953
United States I.040.50g 29.211,933 182,788 5.458.168
Total for 61 States 1,889,762 qG,r80,698 584,723 ij.ri4.G8o
1954
United States I,i10.044 33.168.656 200,209 6,128,513
Total for 65 States z.oGq.887 53,936,730 615,930 16.457.147

'955
United States 1,255,127 39.18S.or3 226,438 7.248.352
Total for 66 States 2,293,776 61,717,886 665,103 18,856,342
1956
United States 1.399.061 44>45i.062 z58.9og 8.410.537
Total for 70 States 2,536,447 7r.r48.216 775.260 22,870,565 17. The reports of the Secretary of the Treasury of the United
Stateson the State of the Finances for the fiscal years ended June

30, 1954, 1955, 1956 and 1957 show the foiiowing (Annex 42) with
regard to incoming passengers by air. These facts are cited, although
they naturally involve only transoceanic and overland flight into

the United States. It is submitted that they have a bearing on the
total number of American citizens and aircraft engaged in inter-
national air travel.

Aircraft and Aircraft Passengers
Entering the United States

Year Aircraft AircraftPassengers

1954 99.906 1,693,070
1955 117.593 2.004.741
1956 129.931 2,488,528

'957 '45,074 2,785,083

18. The United States Immigration authorities report a further

breakdown of these figures-they show the following (Annex 43):

PASSENGERS DEPARTED FROM THE UNITED STATES

TO FOREIGN COUNTRIES
BY AIR

Aliens Citirenç Total

'955 305.771 722.493 1,028,264
Flag of carrier:
United States '70,'43 528.380 698.523
Foreign 135,628 194."3 329,741

1956 348.934 886,862 1.2352346

Flag of carrier:
United States 183,6zo 637,503 821.123
Foreign 165.364 249,359 414,723

19-57 366,825 1.0~9.873 1.396.698
Flag of carrier:

United States i6g.028 700,393 869,421
Foreign '97,797 329.480 527,277IgO hlEhlORIAL OF U.S.A. (2 XII 58)

PASSENGERS ARRIVED IN THE UNITED STATES
FROM FOREIGN COUNTRIES

BY AIR

Aliens Citizens Total
1955 396.953 780.593 '-177.546

Flag of carrier:
United States 220.446 583.553 803.999
Foreign 176,507 192,040 363,547

1956 481.565 925.528 1.407.093
Flag of carrier:

United States 255.515 6SG.SiU 942,331
Foreign 226,050 238,712 464.762
'957 650.360 1.005.738 1,656,098

Flag of carrier:
United States 324,897 716,647 1.04',544
Foreign 325.463 289.091 614.554

19. The Civil Aeronautics Board of the United States Govern-
ment also maintains statistics on points of origin and destination.
They report the following facts of relevance to the present imme-

diate case:

PASSENGER-MILES OF U.S. REGISTERED AIRLINES

BEYOND THE CONTINENTAL LIhlITS OF THE UNITED STATES
WITHIN EUROPE, AND WITHIN EUROPEAN AIR CORRIDOR "AMBER IO"
CALENDAR UEARS 1955, 1956, AND 1957

Calendar Calendar Calendar
year year yevr
Area 1955 1956 1957
p ~
Beyond continental limits of U.S. 5.322.109 6,430,932 7,658,929
Within Euroo~ .2:
Pan American
TIVA

Total

Via Air Corridor "Amber ro":

Between Frankfurt and Salonika 13.899 13.968 15,947
Within Yugoslavia 9,434 9.220 10,332

'Includes scheduled and non-scheduled passenger-miles of U.S. certificated
and noncertificated carriers.Contains some inter and intra-territorialtravelas
well as travel between the continental U.S. and U.S. territories or possessions.
Also includes that travel over the U.S. mainland occurring. on outbound trafic,
between the laçt point of U.S. takeoff and the continental U.S. boundary and
travel between thisboundary and the tirst poinof U.S. landing on inbound fiights.
Excludes operations hehveen the United States and Canada for some carriers. Annual estimates obtained by multiplying the monthly volume for March
and Se~tember bv six. Includes anly scheduled onerationç of Pan American and
TWA ind excludes nonrevenue p;çsenger-miles for PAA. Passenger-miles in
non-scheduled operations of U.S. carrierarenot available. Includes travel occurring
within the continental limits of Europe. For this tabulatiaIreland and the British
Isleswere considered part of the European mainland but Iceland was excluded.
For those flights departing or entering Europe the distance flown over European
soi1 waç computed to or from the point where the normal flig.t p.th would cross
the ~uropean continental boundary.
Includes operations of only Pan American and excludes U.S. carrier non-
scheduled traffic, if any. Data were compiled by Pan Amencan World Ainvays,
Inc. by multiplying the manifest passengers between Europe and Istanbul by i,ooz
miles-the "Amber IO" air distance from Frankfurt to Salonika.
' Includes operations of anly Pan American and excludes U.S. carrier non-
scheduled trafic, if any. Data were developed by determining the number of
p;issexiyen pnriing rhroaigh \'iigo~ld(ar\uming rio devlatiun(rom normal tliglit
route- fr<>n>tr;ttii<: rliin repf.ir3l;.rchaiidirpr~inlier :and theii mulii~>lging
Ly rlie,:alcdair ~nileagc wiihin i'ug.>rl:ivi.,".Ainl,<i40".

Data were inflated to annual volumes by multiplying by six. Source: Carrier
reports to CAB and Pan Amencan's New York office.

20. Experts of the Air Transport Association, a trade associa-
tion of al1 American air carriers, report with respect to the origin
and destination passenger miles covered by all aircraft in the

Amher IO corridor, which the El Al airplane was scheduled to fly.
It is submitted to the Court that these figures too are particularly
indicative of the erave im~ortance. to al1who travel bv air. of th,s
case. The report G:

On the hasis of 1958 statistics of published schedules air traffic
experts of the Air Transport Association of America have estimated
that about eighty-nine commercial iïights have been operating
weekly in the Yugoslav Corridor and that, assuming that they

operaie at fifty percent capacity, they cary 3,100 passengers a
week. The aircraft used include DC-6's. DC-7's, Constellations and
Viscounts.
They have estimated also (Annex 44) that in 1951 world air

passengers flying in international air transports, on the basis of
reports filed by member governments with the International Civil
Aviation Organization, were 7,047,000, whereas by 1956 there were
14,121,000. One can extrapolate this constant rate of growth by

showing that in 1955 approximately 3,000 passengers a week were
transiting Yugoslavia in or about the Amber IO Corridor enroute
to or from the Middle East and Far East. These figures include
individuals traveling on the Dutch KLM, the Belgian Sabena, the

British BEA, the Israeli El Al, the Polish LOT, the Yugoslav JAT.
the Iraqi, the German Lufthansa, the Lebanese-British MEA, the
United States Pan American, the Scandinavian SAS, SwissAir, Air
France, and possibly other airlines, such as the Greek Olympic
Airline.

One may further consider that in the summer, which was when
4X-AKC flew,air tourist traffic, such asthe flight in which 4X-AKCwas engaged, was in substantial excess of annual average, and that
since 1955 it has been growing even greater.
A review of the Oficial Airline Gziideschedules for August 1958
shows the following scheduled air services operated through the air
space of Yugoslavia.

I. Vienna-Tel Aviv: z per week in each direction - El Al

2. Vienna-Istanbul:
a. 2per week in each direction - Middle East Airways
b. I per week in each direction - Iraqi Ainvays
c. 3 per week in each direction - KLM
d. 3 per week in each direction - SAS

3. Belgrade-Athens:
a. 2per week in each direction - Jugoslovenski Aerotrans-
port
b. z per week in each direction - Polskie Linie Lotnicze

4. Vienna-Athens:
a. I per week in each direction - KLM
b. 3per week in each direction - Sabena
c. I per week in each direction - SAS

5. Belgrade-Istanbul: 2 per week in each direction - Jugo-
slovenski Aerotransporî

The foregoing shows a total of forty-four iïights each week.
It may be assumed that while the average annual load is usually
taken as fifty percent of capacity, the summer load is far in excess
of that, ,particularly considering tourists, summer visitors and the
like.
This, of course, is exclusive of traffic in the Amber IO corridor
originating at other points than the above.
In every possible sense, therefore, the Yugoslav Comdor is,
and was in July 1955, a highly important channel for air transport-
ation of persons and cargo between the West and the Middle East
and Far East, with their hundreds of millions of persons and the
increasing contacts between the Middle and Far East and the rest

of the world.
21. The "statement" of the Bulgarian Governmeiit of August 8,
1957 (Annex 4 to the Application), requested the American view.
The American view was conveyed to the Swiss Legation in Sofia on

October II, 1957 (Annex 5 to the Application). The American note
recited facts, based to some extent on American investigations
theretofore conducted and largeiy on the published report of the
Israel Govemment's Ministry of Communications called "Report
of Commission of Inquiry on the Shooting Dom of El Al Aircraft
4X-AKC on 27 July, 1955". The United States Government reject- MEAIORIAL OF U.S.A. (2 XII 58)
193
ed the proposa1 and repeated the request for the sum of $257,875.
The note expressed the United States Government's

"astonishment at the reversa1of policy and attitude, as well as at
the failure of the Bulgarian Govcrnment to keep its word solemnly
made to the United States Government and to the world at large
followingthe unjustified destruction of the El Al aircraft and the
killing of its innocent passengers and crew. While the Bulgarian
aircraft, that has not been its position heretofore."ction of the

The note pointed out further that if the Bulgarian Government
had any complaint about ovedight "it should have resorted to the
usual international practice of noting and identifying the aircraft
and engaging in diplomatic communications with the Israel Govem-
ment looking toward a non-repetition of the incident if possible".
The note closed with the statement:

"The United States Government cannot accept, in such a case of
clear and admitted violations of international law,y conditions
making payment a matter of grace or arbitrarily limited in amount
without regard to actual damage inflicted and suffered.
The United States Government is also concerned with the priri-
ciplesof this matter, in as much as its nationals operate the largest
international mileage and number of aircraft in international civil
aviation, and largenumbers of its nationals use the international
civil aviationirlines of other countries. It must assume that every
government, whether or not involved in the El Al incident, ison-
of the Bulgarian Government in the El Al Case and an assurancect
that such conduct will never be repeated."

22. It will be seen, therefore, that the United States Govern-
ment, on its own account and as parens patriae for the American
people who travel by air, has a speciai interest in the safety, in
foreign countries and in the international flight from country to

country, bot11of American passengers and crews and of the crews
and aircraft of other countries. It is also interested that law and
order in the international transport by air shali reign everywhere
according to civilized standards.

The United States Govemment, of course, can only infer from
the available facts what motives impelled the Bulgarian Govern-
ment to reverse its widely and loudly announced previous commit-
ment and to repudiate its international obligations in a matter of
such concem to all nations and ail govemments, not only those
whose nationals were the victims of the Bulgari-n Govemment's
conduct.
The United States Government in its Application noted that the
Bulgarian Government's admission of liability to the United States191 MEMORIAL OF U.S.A. (2 XII 56)
Government was made before Bulgaria's election to membership in
the United Nations, and its repudiation was made after its election.
This fact, it must be concluded, throws considerable light on the
state of mind of the Bulgarian Govemment in making the promises
and representations which it has now repudiated and colors them.
Forthe Bulgarian Govemment undoubtedly knew the names of the
pilots, ground control officers and senior commanders responsible
for the destruction of the aircraft and the death of the 4X-AKC

passengers and crew when it informed the United States and the
world that it would seek to identify them, as though they were
unknown, and would punish them, as though they had not already
rewarded them and lauded them. In this case it appears clear that
the Bulganan Govemment's main concern was that this act of
calculated killing of innocent people concerned the Bulganan Gov-
ernment ouly to the extent that it might prevent its admission to
the Company of nations in the United Nations from which it had
been excluded on accoiint, in large part, of its prior conduct in
violation of international agreements.
That thisis true is intimated, particularly, in the Memonal of the
Israel Govemment in the parailel case, pending before this Court,
against Bulgaria. The Israel Government states, in substance, that,
on September 15,1955 and thereafter, the Bulgarian Govemment's
representative in Israel requested the Israel Prime Minister and
Minister for Foreign Affairs, Moshe Sharett, not to use the incident
of July 27, 1955, as an argument for the denial of the admission of
Bulgaria to the United Nations. The Israel Memonal states (para-
graph numbered 30, page 61) that there were several conversations
andthat the first took place September I5, 1955.It says:

"In subsequent conversations the Bulgarian Minister further
expressedthe hope that the incident would not affect the favourahle
to the United Nations, at the forthcoming Tenth Session of theon
General Assembly, then about to convene."

The Bulgarian Govemment laid great importance on persuading
the members of the United Nations to admit it to that body. From
the beginning of its independence following the Peace Treaty of
1947 it continuously sent applications for membership, in various
fonns, to the Members of the United Nations, to the members of the
Security Council and to the Secretariat, stressing its qualifications
under the United Nations Charter and its promises to abide by its
provisions.
At the same time the history of the attempts of Bulgaria to gain
admission to the United Nations makes it clear that Bulgaria at no
time suggested that it was not bound by al1 the provisions of the
Charter. The failure of Bulgaria to be admitted was not Bulgaria's
doing. The records of the United Nations show that Bulgaria
attempted continuously to gain membership and its application
was unconditional (see Annex 45 a). hiEh1ORIAL OF U.S.A. (2 XII 58) I95
Had members known of the concealed intent of the Bulgarian

Govemment to repudiate the obligations solemnly undertaken
openly before the whole world to punish those guilty of the killing
of the passengers of the El Al airplane on July 27, 1955. to prevent
a recurrence and to pay damages in full, and so to gain the respect
of the world, it may be considered doubtful whether the admission
of the Bulgarian Government to the United Nations would have
taken place, or taken place with the celerity it did. Eleven govern-
ments lost nationals in this disaster and the world was horrified.
Bulgaria properly had long had a difficult time persuading the
membership of the United Nations that it should he admitted. This
is indicated in Annex 4 j b.:
The United States Govemment submits that the guilt of the

Bulgarian Govemment for the incident of July 27, 1955, is com-
pounded by its conduct with reference to its admission to the United
Nations; for its representations of suitability for admission were in
fact conditioned on the performance of its promises to punish the
guilty and to exculpate itself from its heinous violations of basic
human rights and decency.
The point does not need laboring that the Government of Bul-
garia is controlled by the Government of the Soviet Union, not only
in its legal standards but in its military operations. The United
States Government thinks it relevant to cal1the Court's attention to
documents in the files of this Court, forrning part of its records, in
Applications by the United States Govemment against the Govem-

ment of the Union of Soviet Socialist Republics on account of
unprovoked shooting down of innocent United States aircraft. It
will be noted that several aspects of these Applications are relevant
to a consideration of the Bulgarian conduct in the present case.
In the first place, the evidence offered to be produced by the
United States Govemment in this Court, if the Soviet Government
would accede to the Court's jurisdiction, would show that it was
then apparently Soviet policy to shoot down allegedly overflying
aircraft without warning and with the purpose of killing al1of the
persons aboard the innocent aircraft (see for example Aerial Inci-
dent of October 7,1952, UnitedStates ofAmerica v. Union of Soviet
Socialist Republics,pages 15et seq. ;United States v. Union ofSoviet
Socialist Repz~blics,the Neptune Case, Application filed August 22,

1958; see also United States of America v. Czechoslovakia, Aerial
Incident of March IO, 1953, pages 14 et seq.).
It is noteworthy that in the standard case of such shootings the
Soviet Government would reply usually that its fighters did not
intercept the innocent American aircrafî for the purpose of shooting
it down but for the purpose of advising the pilot of the American
aircraft that it should follow the fighters and land on Soviet terri-
tory (see for example pages 17 et sep., Incident of October 7, 1952)
or in some cases to advise the American pilot that he was flying
over Soviet territory and should fly away from it (Annex 46).19~ IlE3IORIAL OF U.S.A. (2 XII 58)

This Soviet position, which the United States has charged was
factually untrue in regard to the incidents for wbich the United
States made claims against the Soviet Union, is repeated in the
Navy Neptune Case of September 4, 1954, now pending before
this Court.
The fact is obvious that the military authonties in control of
the Air Defense of Bulgaria on July 27, 1955, and at the relevant
times thereafter, and the Bulgarian Government, had no intention
of performing the promises of payment, punishment and correc-

tion; that they in fact had an opposite intention at the time, which
constitutes deceit and fraud; that this was done in large part to
gain admission into the United Nations. which might othenvise
have been denied.

D. EVIDENCP ERODUCED BY INDEPENDENT INVESTIGATION
The United States Govemment submits that on the merits a
sufficient case against the Bulgarian Government for judgment, in
accordance with the Application filed with the Registrar insti-
tuting these proceedings, has already been made out. The points

of law which support this submission will be discussed below.
But to make certain that there was no factual doubt as to what
had happened, and to prevent an obfuscation of the issues by
verbalisms, the United States Govemment has conducted its own
investigation and reiied upon its own experts in relevant aspects
of this case. While necessarily limited by the notorious unwillingness
of the Bulgarian Govemment to permit any investigation upon
its soil, exemplified in the Bulgarian Govemment's treatment of
the Israel Govemment's Commission of Inquiry after the incident
of July 27, 1955 (discussed in the Memorial filed in this Court by
the Government of Israel in regard to the same matter and in the

Report of the Commission of Inquiry published by the Ministry of
Communications of the Govemment of Israel, as well as by the
Government of the United Kingdom in its Memorial regarding this
matter), the United States Govemment has been able to amass
evidence and tcstimoiiv ovenvhclminglg demonstrating tlic Iiability
of the Bulearian Governmenr to the United ~ ~ ~s Go\.ernment in
this case f8r the kilting of the American national~ aboard the ~l Al
plane 4X-AKC and other damage suffered by the claimants whose
claims the United States Government has espoused.
At this stage the United States Govemment cannot anticipate

what excuses will be made or what contentions of justification will
be asserted by the Bulgarian Government in subsequent pleadings.
In this Memorial the United StatesGovernment can only consider
the allegations of fact, as well as the legal defenses, already asserted
by the Bulgarian Govemment in so far as they affect the United
States Govemment's case against Bulgaria.
The Bulgarian Government, in its note of August 4, 1955, stated
that on July 27, 1955. at 7.10 local time an El Al Israeli aircraft &IE~\IORIAL OF U.S.A. (2 XII 58) 197
"entered Bulgarian air space in the area of the town of Trn without
any waming". It stated that there followed a penetration of

40 kilometers and that then the aircraft overflew the towns of
Breznik, Radomir, Stanke Dimitrov and Blagoevgrad, and con-
tinued in a southerly direction for approximately 200 kilometers
over Bulgarian territory.
An examination of the map of Bulgaria and the surrounding
Yugoslav area (see Annex 37)is ,useful for a consideration of this
matter. In the absence of direct observer testimony, visual or
radar, any reconstruction of the navigational situation which
brought about the flight of this airplane from Vieuna, past Belgrade,
so that it crossed into Bulgaria instead of traveling through Yugo-
slavia to Greece, is a matter of conjecture and expert opinion. This
is the consequence of the very conduct of the Bulgarian Govern-

ment now complained of,its killing of the witnesses who could best
explain how this diversion happened, namely the members of the
crew. But it is noteworthy that the Bulgarian Government's de-
scription of overflight shows thatthe airplane came from the direc-
tion of Belgrade and that as soon as the pilot could see, in the
daylight and lying ahead of him, the ouly large city in the area,
which is Sofia, he immediately turned away and flew westward and
then into a southerly direction following either the Struma Valley
or the Yugoslav mountain area. The United States Government
notes that the exact course of the 4X-AKC, from Belgrade over the
Bulgarian border and within Bulgaria, is necessarily best known
by Bulgaria, since Bulgarian radar and radio stations, ground

observers and aircraft followed it. The Bulgarian Government
should therefore, at the latest in its Counter-Mernorial. make
available duly authenticated copies of al1 logs, camera film, and
reports which bear on this subject (see pp. 249-250 helow).
When the Bulgarian authorities sent up their fighter planes to
intercept, and it is believed to destroy, the airliner 4X-AKC, it
had not only moved west from Sofia but was obviously going in a
southwesterly direction which would soon bring it out over Yugo-
slavia or Greece.

I.The United States Government, as has been noted above,
filed its Application largely upon the basis of the evidence ob-
tained by the Israel Government's Inquiry Commission (Annex 18
in the Israel Memorial in the parallel case pending before thisCourt).
From an analysis of the evidence recited in that report, plus such
additional evidence as \vas then available, it was obvious that, as
the Bulgarian Government itself admitted, its fighters had wil-
fully and unlawfully fired upon and destroyed the 4X-AKC while
the civil airplane \vas innocently overiïying Bulgarian territory
enroute from Vienna to Tel Aviv. The United States Government
said, based on the statements of the Bulgarian Government as to

the course of the airplane and the statements of Yugoslav and
Greek witnesses as to the circumstances of the shooting, that the JlEJlORIAL OF U.S.A. (2 XII58)
'99
including the one at Kurnaritsa. The Bulgarian Government does
not state from what direction the plane had been flying before it
reached Trn. It is consistent with the Bulgarian Government's
actions that the airplane had been flying in the corridor allowed for
travel from Belgrade to Sofia known as the Dimitrovgrad Corridor.

Nevertheless, either before, or certainly after, the fighter aircraft
from Kurnaritsa were airborne, the ground controllers could not
but have seen that the unidentified aircraft had turned and was
on a southward course from Breznik to Radomir and from Radomir
to Dupnitsa. That could mean to a ground controller, who must
have conveyed this information to the fighter pilots in the air in
order to enable them to find out nhere to go to intercept and
identify the otherwise uniclentified intruder, that theairplane was
not flying toward any populated center nor constituting any
security risk to Sofia or the airfields around it.
Whatever source of concern 4X-AKC could have been to the
radar or rnountain observer coverage of the aircraft while the El Al
plane was at Breznik, its turn southward showed that it was leaving
the country. In fact it must be presumed that the airplane would

have heen back in Yugoslavia after the pilot observed his error when
he saw, near Breznik, that there lay before him the very large, and
only large, city in that part of the world, Sofia. It must be presumed
that he was attempting to get out of Bulgaria.
It seems hardly credible that at this point the pilot should not
have been engaged in some communication with the Air Traffic
Control Center in the area of Sofia by VHF as well, perhaps, as
by C\17.In this he made his presence knomn and, if he \vas inten-
tionally there, he asked for permission either to come down or to
continue to Greece. It is also hardly credible that Air Trafic Control
did not reply, apparently denying him that permission or, even if
it did not reply, it is not credible that thc Air Traffic Control and
rnilitary observers did not see him turn to a southwest course on
his way back to the course described in his flight plan filedin Vienna
and notified to Belgrade by CW, on an international frequency

which could be monitored by al1 local governments, including
Biilgaria. The other conversations the pilot or his radio operator had
then, and from then on, with ground control in the area or with
Lydda, is a matter on which this Govemment is at this time not
fully informed. But the effect of such evidence could only lend
support to the guilt of the Bulgarian Government; it is not other-
wise necessary to the present case.
The Bulgarian Government's disclosure, as above requested, and
as detailed below (pagc 249), should include the radar coverage of
al1functioning Bulgarian radar equipment, as well asthe contents
of al1 mountain observer reports, and should include al1messages
between the fighter aircraft and the ground controllers, frorn the
beginning of their dispatch to intercept the unidentified aircraft
until, and including, the filing of their reports on returning to base.200 IIIE>IVRIAL OF U.S.A. (2 XII 58)

Why the pilot of the El Al airplane, an established civil airliner,
came down the Struma Valley rather than down the Vardar Valley
in Yugoslavia, which was the route he or his radio operator reported
he was on by standard international radio signals known as CW
(Continuous Wave) to the Air Traffic Control authorities in Bel-

grade and the route which he was required by the Yugoslav orrer-
flight authority to take (Annex 48), the United States Government
can only speculate. for the pilot and crew are dead. This speculation,
is, in essence, of no legal consequence to the claims for the killing
of the passengers nor, it is suhmitted, would it be for the kiiiing of
the crew, and the passengers were in no sense responsible for the
crew.

Certainly the passengers had no interest in overilying Bulgaria.
Each of the American passengers' passport applications, and each
passport thereunder, urasspecially stamped as "not valid for travel
in Bulgaria". This policy of the United States Government was
well-known to international carriers, whether by air or by sea.
But consideration has been given to several possibilities, neces-
sarily as expert speculation.

3. If the pilot deliberately chose to fly over Bulgaria, his radio
operator was nevertheless reporting to the Yugoslav authorities
that he was over Yugoslavia. This is shown by the log of communi-
cations with the ground (see Annex 49) If this overflight of Bul-
gana was deliberate, a consideration of the circumstances rings a
conviction that the pilot had reason to believe, either from an

understanding with Bulgarian ground authorities or from informal
permission, that this would be safe both for himself and his passen-
gers. The aircraft was well marked, as photographs attached to the
Israel Government's Inquiry Commission Report and the United
Kingdom Memorial show, in accordance with international civil
aviation practices. It was not engaged in evasive maneuvers or in
activities over Bulgarian defenses which might induce the Bulgarian
authorities to be apprehensive. This is not even alleged by the

Bulgarian Government, nor would it constitute a defense for the
shooting uithout warning or opportunity to protect the passengers.
4. Furthermore, while the aircraft may have started out with
navigational equipment in apparently good condition, as asserted

by the Israel Inquiry Commission (report page 6 attached to the
lsrael Govemment's Memorial), local turbulence or defects develop-
ing in the equipment may have caused the pilot to he drawn ont0
the course from Belgrade toward Sofia, shown in the annexed map
(Annex 37). following perhaps the Sofia beacon instead of the
course from Belgrade to Skoplje. The pilot, BENPO RAT^ h,ad flown

6 The United States Government hasno information to the cffect that Captain
Hinks acted as commander of the aircraasmight be inferred from a reading of
Annex 4 ofthe Israel hfemorial. It is not clear from thorfrom the content
of the Israel Memorial, whatpose this document serves. The United Kingdom MEMORIAL OF U.S.A. (2 XII 58) 201

this course only twice, according to the Israel Memorial (paragraph
numbered 32, page 63), in June 1955 and once earlier in July 1955.
The Skoplje course, witnesses have stated, had a beacon that was
not at that time always reliable. It was prohably not in operation
at the time of day 4X-AKC was in Yugoslavia. as has been indicated.
The Radio Facilities Chart for Europe, dated July 1, 1955,
published by the United States Air Force, shows the Skoplje beacon

to be operatingfrom tbirty minutes before sunrise to thirty minutes
after sunset. The United States Nautical Almanac for July 1955
indicates tbat sunrise over Belgrade was at 3.17 A.M. GMT, or
4.17 A.M. Belgrade Zone Time (GMT plus I hour). At Skoplje on
that day sunrise was at 3.21 A.M. GMT, or 4.21 A.M. Skoplje Zone
Time (GMT plus I hour). Ittherefore would appear that the pilot
might not have made radio contact, or did not succeed in making
contact, with the Skoplje beacon. since he did not report over

Belgrade until 0414 local time on July 27, 1955. He did not cal1
Skoplje Tower (not the beacon, which was a separate installation)
untilo613, saying he was over it at 0510 GMT. Whether the opera-
tors of the beacon were at work promptly at the time, particularly
since no advance notice was given to the beacon employees of the
flight of 4X-AKC-thirteen hours, perhaps, off schedule-is a
question of fact.
Pilot BEN PORATmay have been moved off course by reason of
the Sofia or Alexandhroupolis beacons, or othenvise. Not finding

the Skoplje beacon working, if indeed he was seeking it, he may
have been seeking the Mikra (that is, Salonika) beacon, closer to
course, and got the Alexandhroupolis beacon. Or, of course, he
may have sought to rely on the Sofiabeacon.
The United States Govemment finds it of interest to point out
that the air to ground station CW log of 4X-AKC in flight is
confused. The Yugoslav Government's report indicates that at
0613 local time 4X-AKC called Skoplje ground station and reported

passing over Skoplje at 0510. He was however having alto-stratus
clouds at his altitude (see Annex 49). The ground-to-air communi-
cations first reported in the Israeli Ministry of Communications'
report stated that at 0433 GMT the airplane estimated Skoplje at
0517 and at 0513 reported Skoplje beacon at 0510, 17,500 feet alti-
tude. In a revised Annex 27 the Israel Government has stated to
this Court that at 0433 4X-AKC estimated amval at Skoplje at
0517 and at 0.513stated its position over Skoplje at OjIo, altitude
I~,~OO feet. . - . .

The radio operator's report of his presence over Skoplje at 0510
would be approximately seven minutes ahead of flight schedule.
The radio operator, no doiibt under orders, had been making CW

Mernorial claimç that Captain Hinks acted as pilot when the aircraft left London;
show the pilotas Ben Porat. who was being checked outas pilot. Captain Hinkç.round,
during this trip. was supposed to be checking Ben Porat out as a qualified pilot.

15202 MEMORIAL OF U.S.A. (2 XII 56)
reports to the ground reportiug points according to the flight plan

calculated prior to leaving Vienna, rather than by visual observa-
tion. It may be that the radio operator, ifnot the pilot,had confused
a town like Nis, or even a town in Bulgaria, such as Tm, by visual
observation through clouds, with Skoplje and therefore increased
the estimated speed of the aircraft in the air, revising further the
times for the subsequent reporting points in its flight plan. Nis
would appear on the right, on the route froin Belgrade to Sofia,
Trn possibly on the left, when the radio operator, if not the pilot,
thought that the only large town at that point \trould be Skoplje.
This, of course, at the present stage, is even more speculative.
This might also explain the slight turn to the south east on the Bel-
grade-Sofia route evidently reported by the Bulgarian authorities.

The Bulgarian radar and observers' reports would add much to a
clearer explanation.
In any case, when the pilot saw a large city ahead, he obviously,
as the Bulgarian Govemment's account States, attempted to fly
away from it toward the west. In this connection, every person with
any understanding of aviation, or even sailing at sea, knows how
preposterous is the Bulgarian Government's assertion in its note of
August 4, 1955, that "Equipped with the most modern aerial
navigating instruments, it could not have failed to be aware of the
fact that it had violated Bulgarian air space". The intrusion here
was 24 miles, at an altitude of 17,500 to 18,000 feet, in an area of
no surelandmarks or visual checks.

What part local weather conditions, local storms or local winds
of unpredicted velocity had, we do not know, for the Bulgarian
Government has made the knowledge of that impossible. We now
know that in part of the area of Amber IO, mostly to the south,
nearer Greece, winds were in excess of those predicted to the crew
at Vienna (seeAnnex 50). The United States has found no evidence
in fact,in the relevant meteorological data available to it, that the
4X-AKC could have been involuntarily forced into Bulgarian terri-
tory by unforecast winds. In this regard it is noted that forecasting
of the influence of wind on navigation in air space is in large part
dependent first on accurate and frequent observations of relevant
meteorological data, such as upper air winds, and second on the

accurate and frequent communication of these observations to
other flight information centers, such as Vienna, from which air-
planes take off or over which they fly, so that pilots undertaking
flights may take these observations fully into account in flight
planning and in navigation.
In any case the Bulgarian Govemment has made it clear by its
own reports that at the place where the El Al aircraft was inter-
cepted by Bulgarian fighters Bulgaria was indistinguishable at the
aircraft's altitude from Yugoslav territory. Visual observation by
the pilot could not show him, at the point of interception and
southward, where Yugoslavia began and Bulgaria ended. 5. The United States Government submits that, in the circum-

stances of this case, as soon as the Bulgarian authorities noticed
that an unidentified and unauthorized aircraft had entered Bul-
garian air spacc it was the duty of the nearest Air Traffic Control
Center to communicate with thc 4X-AKC by voice or CW, inform
it of its error, and order or permit it to go back to Yugoslavia.
If it siispected danger ta Bulgarian security it should have ordered
the plane to land at an appropriate landing field. Instead, theBul-
garian Government, without warning, sent up fighters witli orders
to kill.

6. Wliether or not the aircraft, having turned to the west,
was intending to seek out its flight plan course, by visual com-
parisonof theterrain with a pilot's map, the United States Govern-
ment is prepared to prove, by testimony, that south of Blagoev-
grad (generally known as Gorna Djumaja) the two Bulgarian

fighters were seen from the ground, by numerous witnesses, engaged
in hostile maneuvers.
One of the fighters moved in a manner to prevent the El Al
aircraft from crossing the invisible line that \r70uldbring it into
Yugoslavia. Undoubtedly, that Bulgarian pilot was being guided
by ground controllers who were watching him on radar and by
mountain top observers who were in communication with the
ground controller by other methods ofsimultaneous communication.
It is indeed quite possible that the 4X-AKC actually crossed into
Yiigoslavia, flying westward, and was driven back into the Struma
Valley south of Blagoevgrad (or Gorna Djumaja). This may be true
in spite of the testimony said to have been obtained by members
of the Israel Inquiry Commission from Yugoslav mountain top
observers near the point of joinder of the Yugoslav, Bulgarian
and Greek borders tothe southwest (seeUnited Kingdom hlemorial).

The second fighter plane was nbserved by ground witnesses to
be making rolls and loops around the El Al airplane. The two
fighters, between them having shot at the 4X-AKC settingit afire,
kept the 4X-AKC from flying into Yugoslavia. Then as the three
approached the Greek border, the fighters having shot at 4X-AKC
some more, maneuvered to keep 4X-AKC from getting into Greece.
Shortly after the interception \vas made below Dupnitsa, as
ground witnesses saw and heard, the fighteraircraft began firing at
the El Al airplane, particularly ;lt its tail portion, causing it at once
ta burn and sinoke. This \vas seen along the route from as far north
as Simitli, down across the mountains to the East-West Stmmitsa
Valley tliat lies just north of the Belasitsa mountains marking
the frontier with Greece. The plane was then observed by ground
witnesses to faii considerably in altitude (the log contained in the

Israel Investigation Commission Report shows that in its last
normal report, 4X-AKC uras nt 18,000 feet altitude) to a lower
level of approximately 1,000 meters. It could not have gainedz04 MEXORIAL OF U.S.A. (2 XII 58)
enough altitude to cross iiito Greece or into Yugoslavia. The
airplane, according to eye witnesses, was seen coming over the
mountains from the Yugoslavia area and into the East-West

Strumitsa Valley obviously looking for a place to land. There was
a possible landing place in the valley, northeast of Petrich, on
the road to Sherbauovo. But the Bulgarian fighters, although the
plane was buming and was coming down in Bulgaria, continued to
fire. IVitnesses have testified (and the testimony of some of them
at the Greek border at the vantage point of Promachion is contain-
ed in the Appendix to the Israel Inquiry Commission Report),
in the United Kingdom Memorial, as well as in Annex 52 to the
United States Alemonal, the Bulgarian fighters shot at the passen-
ger aircraft from the side and directly into the part of the airplane
in which the passengers were confined. This is confirmed by Yugo-
slav border witnesses, most of them cited in the sarne Israeli report
and included in the United Kingdom Memorial.

As the United States Government will show, the Bulgarian
fighters last shot into the 4X-AKC, while it was smoking anrl
on fire, in about the area of Samuilovo, southeast of Petrich, and
looking for a place to land on Bulgarian soi1northeast of Petrich.
7. There is no question as to signals or warning. The witnesses
interviewed by the United States Government indicate that none

were ever given by the fighters. There is therefore no question
whatever about the rules as to signals or their character. After
the interception the Bulgarian fighterç took up hostile positions,
concentrating on the rear of 4X-AICC and then on the passenger
area of the civil transport. The purpose of the fighters was to kill
and dcstroy, not to convey any kind of signals at all.

8. There is room for considerable speculation why the C\V
communications from the aircraft to the ground, as published in
the Israel Memorial and as taken down by Yugoslav authorities to
whom the aircraft reported, show no conimunications whatever be-
tween 0526 GAlTand 0537GhlT-nineminutes. The communication
of 0528 was a good-by message to Yugoslav air traffic control and
0537 was an SOS message received by Athens from 4X-AKC.
Obviously during this time the qX-AKC was being attacked and
shot at by the Bulgarian fighters.
The United Kingdom Memorial (paragraph 47) speculates tliat
the lack of radio communications in the reported log may have been
due to the radio operator's involvement in performing his duties
respecting El Al decompression procedure resulting from the de-
pressurization caused by the shooting by the fighters.

This, of course, is a matter of speculation. The United States
Government wishes to point out that at this stage two other
speculations are equally valid: First, whether, in fact, the radio
operator was not busy transmitting messages by CW on another
frequency, perhaps to Sofia and certainly to Lydda. Secondly, >lE>lORIAL OF U.S.A. (2 XII 58) 205
whether he might not have been disabled by the shooting. Both

possibilities are helieved by the United States Government to be,
at this stage, supportable.
The latter possibility is supported by the experience of the
Sabena transport plane which was attacked by a Soviet fighter,
without warning, on a flight from Munich to Belgrade, June 3, 1954.
The shooting in that case killed the radio operator and wounded
the pilot and another crew member (see Belgian Foreign Office
communiqués of June g, 1954 and July IO,1954).
The SOS message at 0537 GMT, on this theory, from the 4X-
AKC, would have been sent either by the disabled radio operator
or by another crew member still alive.

9. The United States Government wishes to stress these facts,
homble though they are. because they show that the purpose and
intent of the Bulgarian ground controllers and the pilots of the
fighter aircraft were not just to induce the 4X-AKC to land in
Bulgaria but to kill the passengers and the crew, including by
implication the nine American nationals aboard. These facts also
show that the pilots of the fighter planes had adequate opportunity
to observe the markings of the Israel aircraft, to report those
markings to the ground controllers, and to report also that the

airplane showed no evidence of being military or hostile in any
sense. The United States Government submits to the Court photo-
graphs of similar El Al aircraft, as well as photographs which show
the markings of this airline (Annex 32). Photographs of 4X-AKC
are contained in the United Kingdom Memorial. The United States
also refers to the photographs of the wreckage taken by the Israel
Inquiry Commission and associated investigators, with the permis-
sion of the Bulgarian Government, under the circumstances de-
scribed in the Israel Inquiry Commission'sReport (Israel Memorial,
Annex 18), and by Colonel Stevenson, British military attaché in
Sofia, some of whosc photographs taken on the spot and received
from the British Governmcnt are attached hereto (Annex y), and
are also in the British Memorial.

IO. Furthermore, testimony of witnesses shows that the Bul-
garian authorities, after the airplane had crashed and the world
had been shocked, examined the remnants of the aircraft, explored
its contents, cutting holcs in the wings, engines, and other places
where military or hostile equipment might be carried, seeking some
justification for the shooting, and obviously found none.

Witnesses will also testify that the fighter aircraft, which came
from the Bulgarian air base at Kumaritsa near Sofia, did not leave
4X-AKC until its destmction was certain; that is, until it had
exploded in the air and its fuselage, passengers and crew had been
splattered over the Kuzhukh Hill northeast of Petrich and near
the railroad station known as General Todorov. This was within
visible distance from the Greek border.206 BIEBIORIAL OF U.S.A. (2 XII 58)

II. The Bulgarian authorities, as though to emphasize the
intention to destroy 4X-AKC and kill its passengers and crew, did
little to protect the aircraft, its contents or the remains of the
victims. .&part from some minor attempts at protecting what was
left of the aircraft pending the arriva1 of Bulgarian officialinquirers,
even this protection ceased as soon as the Bulgarian officia1in-
quirers left, on the day of the crash. The aircraft and the bodies of
the deceased were then plundered by gendarmerie, local officiais
and local residents. Indeed, in the town of Petrich there seems to
have been a market for pluudered objects such as wrist watches,
bracelets, silver, gold, clothing, and other effects. This, it is sub-

mitted, demonstrates the intention of the Bulgarian authorities
from the beginning of the incident. It emphasizes the responsibility
of the Bulgarian Government, whose callousness to the decencies
of mankind permitted this horrible conduct to go on. The Bulgarian
authorities, many witnesses will testify, did not even bury corpses
and parts of corpses that were visible and should have been buried
according to the universal practice of civilized mankind. Only a
few of the local inhabitants, of their own accord, conducted such
burials, apart from the few bodies that were sent to Sofiafor medical
examination and turned over to Israel authorities, as recited in
the Israel bIemorial (paragraph 14).

12. It is significant that the Bulgarian Government used every
means to prevent a local inquiry, contrary to the practice in civilized
countries, by the Inquiry Commission of Israel and by the British
military attaché at Sofia. The story is told in the Israel Inquiry
Commission Report, in the Israel Memorial, and in the United
Kingdom Memorial, and it issupported independently by testimony
obtained by the United States. This fact is substantially admitted
in paragraph numbered 3 of the Bulgarian Government's announce-
ment of August 3. 1955 (seeAnnex 34).

13. It is significant further that the Bulgarian Government not
only misstated the facts to the United States and to other govern-
ments, and to the world, with regard to punishment, but witnesses
will testify that the Bulgarian Government promptly gave awards
to thosc who had participated in the sighting and destruction of
the 4X-AKC. Among the ground observers rewards were given in
the form of home leave. These factsare highly relevant to the intent

of the Bulgarian authorities and to its liability in this Court.
14. The United States Government makes reference again to
the speech of General Panchevski on Army Day (see page 186).
15. The United States Government at this point reproduces as
annexes (seeAnnexes 52 et seq.)statements by a number of witnesses,
among the large number interviewed from Bulgaria, Yugoslavia

and Greece, nhose testimony supports the foregoing statements of
fact. These witnesses include many in addition to those cited (if
not relied upon) by the Israel Government in its Rlemorial, refer- >lEMORIAL OF U.S.A. (2 XII 58) 207
ring to the investigation of 1955 by the Israel Inquiry Commission
and printed in translation in the Israel Government's Blue Book
(Annex 18 to the Israel hfemorial). They include those cited and

relied upon bythe British Government in its Memonal. A number of
the 1955 witnesses have been reinterviewed in the preparation of
this Memonal.
The United States Government reserves the right to cite addi-
tional witnesses for oral testimony, withthe permission of the
Court, in accordance with the Rules of the Court. The United
States Government conceives that it has a special duty with respect
to witnesses deriving from BulgariIt has aduty to protect these
witnesses and their relatives in Bulgaria who are subject to retali-
ation, pressure and devices for making them unavailable to this

Court. For this purpose the United States Government now states
that it may require the assistance of the Court although, of course,
the United States Govemment will comply with al1the applicable
Rules of the Court such as those contained in Articles 49, 53, 54,
56 and others.

E. AD~~ISSION SY THE BULGARIA GNOVERNME TNOTOTHER GOV-
ERNMENTS

The United States Government believes it appropriate to offer
as evidence the various communications, on the subject of the
Bulgarian Govemment's liability for the killing of the passengers

of the 4X-AKC aircraft near Petrich on July 27, 1955. made by
the Bulganan Government to other governments whose nationals
were on board the airliner and were similarly killed.
I.The United States Government itself does not engage in
direct diplomatic communication with the Government of Bulgaria.

It suspended relations with Bulgaria in February 1950, because of
false accusations made against American diplomats in Bulgaria by
the Bulgarian Government. Its negotiations with Bulgaria on the
present subject were therefore conducted through the inter-
mediation of the Swiss Government. But the Bulgarian Govern-
ment conducted direct negotiations with Her hfajesty's Govern-
ment in the United Kingdom and particularly with the Govern-
ment of Israel. The negotiations with the Government of the United
Kingdom are separately set forth in that Government's hfemorial
in a companion case in this Court.

2. \\'ith respect to the Government of Israel, the United States
Govemment points out that there is considerable discussion that
bears on this subject in the hfemorial of the Government of Israel
in a parallel case now filed in the Registry of this Court. Part 1 of
that Memonal, beginning with paragraph IO,consists of an account
of negotiations, first between the diplomatic representativesof

Israel in Sofiaand the Bulgarian Foreign Officeauthorities; secondly MEMORIAL OF U.S.A. (2 XII 58)
208
between the Bulgarian representative in Jerusalem and the Prime
Minister and Foreign Minister of Israel, in which the Bulgarian
Minister reiterated the Bulgarian Government's liability and
promised to atone and pay. The later negotiations had, in the

beginning, according to the recitals in the Israel Memorial, to do
with the amount of damages and not with the issue of Bulgarian
liability. It was only afterthe Bulgarian admission into the United
Nations that the negotiations broke down. This was because, as
the Israel Memorial states, of the Bulgarian Govemment's insistence
that it had no liability, thatitwould make payment only ex gratin
and per capita, and that the El Al Israel Airlines Ltd. was liable
because of the unauthorized intrusion of the 4X-AKC airplane into
Bulgarian air space.
3. The United States Government is in no position to Say what

the details of the Israel-Bulgaria discussions were, particularly
those regarding settlement, and it is, of course, not bound by any
concessions, if there were concessions, made by the Israel represen-
tatives to the Bulgarian representatives, especially since the United
States Government was not represented in these negotiations. But
it is clear that the very admission ofa duty to pay is a reiteration
of the liability for the killing of the American passengers.
4. The United States Government rejects as inapplicable to
its case against Bulgaria any suggestion that the liability of the

Bulgarian Government should be divided or shared, as to the
United States, with the El Al Israel Airlines Ltd. or with the Israel
Government. The facts of the case, as discovered by United States
investigators, and as testimony in this Court will show, make it
clear, beyond peradventure of doubt, that the Government of
Bulgaria is liable for al1damages suffered and for a full performance
of the obligations undertaken by it in its diplomatic negotiations
with the United States Government through the intermediation
of the Swiss Government following the incident of July 27, 1955.
It is so liable without regard to whether there is any other tort-
feasor or whether there may be any liability to the United States
or to American nationals on the part of any other tortfeasor. Such
a question of indemnity or contribution lies between the Govern-
ments of Israel and Bulgaria. The United States does not hesitate
to Say that fromthe facts known to it, the liability is entirely that

of the Government of Bulgaria, but that subject is irrelevant to the
United States Government's case against Bulgaria.
5. There have apparently been negotiations by Bulgaria, as to
payment, with representatives of other governments having claims
against Bulgaria on account of the destruction of 4X-AKC on
,July 27, 1955.The United States has reference to the United King-
dom, Sweden, Canada, Austria, France, Germany, Belgium, and
perhaps others. The United States Government is, of course, not

bound by any concessions which may have been made by any of 11EMORlAL OF U.S.A. (2XII 58) 209
these governments in such negotiations; indeed, the United States
Government is unaware that any have been made that relate to
the substance of the Bulgarian Govemment's liability. But the
United States offers as relevant the rejection by these governments,

which the United States is informed they have al1 made, of any
ex gratia basis to any Bulgarian admission of liability or offer of
compensation as a matter of international law.
6. \Ve do not know why the pilots erred in their pilotage, and
the Bulgarian Government has prevented us from knowing, by
killing the crew, apparently concealing the relevant documentary
evidence, and preventing on-the-spot investigation. Definitely the
passengers did not control the plane. If the pilot erred in his pilotage,

guilt is just as ascribable to the Bulgarian authorities for this error.
Such pilot error could not be lawfully punishable by any judgment
of immediate, or subsequent, death of the passengers or of the
crew.
The United States reserves such rights asit may have to supple-
ment the present Memorial by additional evidence which is still
in the process of being gathered.

PART III

THE ISSUES OF LAW

The facts described above, it is submitted, show the liability
of the Bulgarian Government for the wilful killing of the nine
American passengers by Bulgarian authorities to be beyond
question. This is not a case of killing merely by negligence or mis-
take. Nor is it a case of an assertion of vicarious liability against
the Bulgarian Government. Nor can the Bulgarian Government
escape liability by pointing to the evidence thatdvisers of other
nationality or higher rank than the Bulgarian officers who partici-

pated were In truth directing the killing operation.

A. RESUME OF THE UNDERLYING CONSIDERATIONS

In brief, we do notreally know why the pilot of th4X-AKC flew
over Bulgarian territory. The suggestion in the Bulgarian note of
August 4, 1955, that "Equipped with the most modern aerial
navigating instruments, it could not have failed to be aware of the
fact that it had violated Bulgarian air space", is completely mis-
leading. In the first place, we do not know why the pilot deviated.
He may, for instance, have become ill. In the second place, his
navigational equipment could have been rendered inaccurate during

the course of the flight. In the third place, weather conditions may
have been such that his corrections for errors in flight were inaccu-
rate. In the fourth place, his visual observation of the ground, over210 MEMORIAL OF U.S.A. (2 XII58)
the mountains running between Yugoslavia and Bulgaria, could
not tell him whether he was in Yugoslavia or Bulgaria. Findiy,

no pilot of a civil airliner would expect to be shot down without
opportunity adequate to give him a safe alternative and without
opportunity adequate to keep his passengers and crew from being
brutally killed.
I. A safe alternative means tbat the airplane should either have
been told from the ground, by voice radio, or byCW transmission,
on an international radio frequency used by airplanes in flight, or

it should have been told by the fighters intercepting it, that it was
off course.It should then have been either escorted back to Yugo-
slavia or given a route to flysafely to Yugoslavia, or even to Greece.
If there were Bulgarian terrain secunty questions already raised,
4X-.4KC should have been given comprehensible communications
to lead it to a designated airport with safety for the crew, the
passengers and the aircraft. There were enough of such airports in
and around Sofia.The latter, however, seems a senselessalternative,
for 4X-AKC was obviously on the regular corridor from Belgrade
to Sofia and therefore, that corridor heing open to foreign travel,
had 1x0security character. Nor, since Bulgaria had then other air
traffic could any such direct route from Sofia to the Greek border
have bad secunty character. It was when 4X-AKC was on or near

that Belgrade corridor that the fighters were sent up. Th4X-AKC
flight southward thereafter was over obviously unsecure terrain
being for the most part within eye sight of the Yugoslav frontier
observers covering the Struma River Valley, and the rest of the
Yugoslav-Bulgariaii fronticr.
True, the Bulgarian Government note says: "Even after having
been warned, it did not obey but continued to fly towards the
south in the direction of the Bulgarian-Greek frontier." But evidence
of the giving ofawarning or the giving of an alternative is lacking,
and it is believed that testimony will show that there was no firing
across the nose, or other firing not endangering the aircraft, that
the first finng was at the tail of the airplane, starting a fire; then
into the passengers' quarters.
Indeed, any firing would have been unnecessary since the pilots
of the fighter planes, as the evidence shows, had an opportunity to

identify the 4X-AKC from its appearance and markings, and to
report them to the Bulgarian ground authorities. The latter, in
accordance with the present international practice of civilized
governments, then would take the matter up in appropriate diplo-
matic channels uith the Israel Government. Diplomatic inquiry
then would result in a disclosure whether the overAight was acci-
dental, or rendered necessary by supervening circumstances, in
which case it urould be condonable.

2.In any case, should therehave been a security necessity, which
the Bulganan Government has not claimed and cannot claim in hlElIORIAL OF U.S.A. (2 XII 58) 211
this case, to bring the Constellation aircraft down to the ground,
only reasonable methods for doing so could be used. An airfield of

proper facilities must have been shown to the pilot of the 4X-AKC
and the fighters must have led him there. Evidence to this effect
is completely lacking. So far as is known, the only suitable airfield
for a Constellation four engine aircraft on Jnly 27, 1955, was in
Sofia, and there is no cvidence or claim even that the pilots of the
Bulgarian fighter aircraft attempted in any way to direct the
Constellation to Sofia. Instead the fighters atternpted to keep the
Constellation from flying back to Yugosla\~iatoits proper coursein
the Vardar Valley, and then attempted to keep it from entenng
Greece, which was but a few kilometers away from Petrich, where
the plane was shot down and exploded. The United States Govern-
ment notes that when the plane was burning over Petrich and the
Bulgarian fighters were still firing into its passenger portion, the

Constellation 4X-AKC was circling Petrich and, having apparently
seen the landing strip used by Bulgarian light planes, near Sher-
banovo, was going there when it exploded.
3. The purpose of the Bulgarian fighters and the Bulgarian
ground control authorities was not to divert the aircraft from Bul-

garia, or even to use reasonable methods to coinpel it to land. Their
purpose \vas to destroy 4X-AKC and kill its passengers and crew
as the penalty for being flown or wafted within Bulgarian air space,
regardiess of the cause and without judicial or other inquiry.

4. There is no doubt that the questions presented to the Court
by the facts are novel in this Court in a narrow sense. But that
provides no comfort to the respondent government. All new cases
have novel aspects, but Courts have, none the less, principles and
precedents upon which to rely for rendering justice.
It is believed that Article 38 of the Court's Statute lias special
application to the issues of law which may be raised in this case.
Particular reference is made to subsections "b" through "d":

"I. The Court, wliose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
. . . . . . . . . . . . . . . . . . , . , . ,

(b) international custom asevidenceofa generalpracticeaccepted
as law;
(c) the general principles of law recogiiizedby civilized nations;
(d) subject to the provisions of Article jg, judicial decisionsand
the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law."

The legal issues raised specifically in the diplornatic exchanges on
the substance of the controversy are divisible at this stage into

three general headings:212 MEMORIAL OF U.S.A. (2 XII58)
First, there is the international liability of the Bulgarian Gov-
emment for wilfully killing innocent nationals of the United States

accidentally ovedying Bulgaria.
The second, and related, subject is the international liability
of Bulgaria for mistreating overflying civil transport aircraft,
aircraft crew and passengers, among them nine innocent American
passengers. Subsidiary to this question is the question of the modern
rules of the air as derived from the principles of international law
and moraiity and international practice.
The third is the question raised by the Bulgarian Government
in its negotiations with the representatives of the Government of
Israel, and by indirect communications to the United States Gov-
ernment, whether the liability ofElAl as a tortfeasorexculpates the
Government of Bulgaria to the United States Government for
Bulgaria's wrongdoing.
There are, in addition, questions of the effect on the liability of
the Bulgarian Government to the United States Government for

fraud and deceit exercised upon the United States Government, as
upon other governments concerned. These false representations,
upon which governments may have relied, may have resulted
in Bulgaria's obtaining membership in the United Nations without
affirmative resistance in December 1955,

B. KILLING AS AN INTERNATIONA OLFFENSE AND TORT

It may be said that there is no existing treaty or international
code which in terms prohibits a goverument from ordering the
kiiling of innocent passengers in an innocent civil transport aircraft
that has strayed without prior authorization into the territorial air
space of the killing government. But it is submitted that any pro-
posa1 in modern times to make such a treaty, bilateral or multi-
lateral, would be viewed with consternation, The opinion of mankind
constitutes the precedents and the international law which now
make such action internationally criminal, and did so on July 27,
1955. It gives this Court jurisdiction to pronounce judgment and
calls for atonement and com~ensation bv the resuonsible rovern-
ment. -

There are, of course, cases where the acts of a government in
putting persons to death are justified by moraiity or by international
practice and even permitted by international convention. But as to
the rest, argumentation seems supererogatory. In the present cun-
text argumentation may even lend more dignity than the Bulgarian
Government's position deserves. In the absence of the Bulgarian
Government's Counter-Memorial, it is believed necessary only to
point out some self-evident rules.
I.In no case, under any system of law, in any civilized country,
have authorities been permitted deliberately and brutally to kill
innocent and unprovoking persons who have been accidentally 31EMORIAL OF U.S.A.(2 XII 58) 213
carried across their border, particularly by air. The punishment
for overilight is not death; certainly not to the innocent passengers.

That is not even provided by any knowvnBulgarian statute.
It should not require any disputation to arrive at the conclusion
that wanton and wilful, and particularly premeditated. homicide
by one government through itsofficia1agents, against the innocent
nationals of another State, especially such as are in innocent inter-
national transit over the killing government's terrain, is an inter-
national murder and gives rise to a direct claim, in an international
tribunal, for damages and other amends.
2. Following the Rules of this Court and of international law,

it is nevertheless perhaps proper for the record to refer to the
fundamental principle that au organized societies have condemned
such kiiling. As Professor Jerome Hall, in his book Living Law of
Democratic Society (1949) has said, quoting the famous anthropo-
logist, Professor Boas (General Anlhropology, p. 677 (1938)) :

that we know.agesuch as rnurder, theft, lying, rape, are recognized
and in most cases discountenanced within the socialgroup in which
mutual duties are recognized.' "

3. The Biblical injunction in the Ten Commandments is a
general one: "Thou shalt not kill" (King James and Vulgate ver-
sions, Ezodus, Chapter 20, Verse 12, and Deuteronotny, Chapter 5,
Verse 17). The Jewish Publication Society of America (1948 edition)
translation is: "Thou shalt not murder." Ezodus (Chapter 21,
Verse 12) in this same translation states: "He that smiteth a man,

so that he dieth, shall surely be put to death."
The Koran (Chapter 17, Verse 35 in the Rodwell translation)
reads: "Neither slay anyone whom God has forbidden you to slay
unless for a just caÜse."-
In the Sermon on the Mount. Tesussaid: "Ye have heard that it
was said by them of old time, yhou shalt not kill, and whosoever
shall kill shall be in danger of the judgment" (GospelofSt. Matthew,
Chapter 5, Verse 21, King James Version).
4. The same may be said of al1civilized ethical and legal societies.

In the Panca Sila of the Buddhist faith, whose adherents are
in large number, particularly in the Far East, a cardinal principle
is"1 take the precept to abstain from destroying life" (Dhammapada,
Text and Translation by Narada Maha Thera, published by the
hfaha Bodhi Society of India in 1952).
5. Indeed, the Bulgarian law on the subject, contained in the
Bulgarian Penal Code entitled "Assassination", Articles 126, 127
and following, is to the same effect (Les Codes pénaux européens,
by Marcel Ancel, p. 293) (Annex 53).The subject is fully covered in
general comparative law studies (Annex j4).

6. From a more conventional and familiar international law
standpoint the prchibition is implicit in al1 the conventions and214 MEMORIAL OF U.S.A. (2 XII 58)

treaties which have to do with the rights of non-belligerents in
time of war and the rights of soldiers and prisoners of war against
inhumane treatment. It is implicit in the international law which
makes a government liable for manifest denial of justice to an alien.
Grotius said:

"He is, furthemore, bound to give to those whom the dead man
was accustomed to support from a sense of duty, as parents, wife,
and children, so much as that expectation of support was worth
in view of the age of the person killede."

The illegality is essentially held, to come to the precedents of
this Court, in the Corfu Channel Case Judgment in whichthiscourt
condemned the actions of the Government of Albania in killing
British military personnel in the Corfu Channel. Inits Judgment
this Court said that the Court (Refiortsof Judgments, Aduisory
Opinions and Orders, 1949):

"Cives judgment that the People's Republic of Albania is re-
sponsible under international law for the explosions which occurred
on October zznd, 1946, in Albanian waters, and for the damage
and loss of human life that resulted therefrom; ..."

This was in response ta the first question in the Special Agreement
hetween the two parties giving the Court jurisdiction. As the Court
stated in the majority opinion:

"In fact, nothing was attempted by the Albanian authorities to
prevent the disaster. These grave omissions involve the interna-
tional responsibility of Albania.
The Court therefore reaches the conclusion that Albania is re-
s~onsibleiinder international law for the exolosions which occurred
On October zznd, 1946, in Albaniaii watek, and for the damage
and loss of human life which resulted from them. and that there is
a duty upon Albania to pay compensation to theUnited Kingdom.
In the final submissions contained in its oral reply, the United
Kingdom Government asked the Court to give judgment that, as
a result of the breach by the Albanian Government of its obliga-
tions under international law, it had sustained damages amounting
to @7ç,ooo.
In the last oral statement submitted in its name, the Albanian
Government. for the first time. asserted that the Court would not
have jurisdiction, in virtue of the Special Agreement, to assess the
amount of compensation. No reason was given in support of this
new assertion, and the United Kingdom Agent did not ask leave
to reply. The question of the Court's jurisdiction was not argued
between the Parties.
III the first question of the Special Agreement the Court is asked:

XVII,g"On Damage Caused Throughc PInjury,Tand the ObligationArising There-
fram".Part 13. IIEMORI.4L OF U.S.A. (2 XII 58) 215

(i) 1s Albania under international law responsible for the explo-
sions and for the damage and loss of human life which resulted
from them, and
(ii) is there any duty to pay compensation?"

7. As has been averred, the more familiar rules of the conduct
of war supply authority, a fortiori. The subject of rights of non-
combatants is discussed in Oppenheim's InternationalLaw (Lauter-
pacht Edition, Volume II, Seventh edition) in various places,
including Section 241, which reads as follows:

'*Sincewar is not a condition of anarchy and lawlessness, Inter-
national Law requires that belligerents shall comply with its rules
in carrying on their military and naval operations. Ço long, and
in so far, as belligerents do this. their warfare is legitimate; if they
do not, their warfare is illegitimate. Acts and omissions contrary
to International Law can be committed by belligerent Governments
themselves, by commanders or members of the forces, or by indi-
viduals who do not belong io the forces. Belligerents bear a vicari-
ous responsibility for internationally illegal acts of their soldiers,
which turns into original responsibility if they refuse to repair the
wrong done by punishing the offenders and, if necessary, compen-
sating the sufferers. Cases in which belligerent Governments them-
selves order or commit illegitimate acts, and also cases in whicli
they refuse to punish their soldiers for illegitimate acts, constitute
international delinquencies."

In Section 2j9 a he says, as to the killing of hostages, which was
condemned in World War II:
"There ought to be no doubt as to the correctness of these deci-
sioiis. Modern war-total and scientific-inevitably, in its effect,
tends to blur the distiiiction between combatants and noncom-
batants. But this is not asufficient reason for the deliberate killing
of innocent Dersons for the sake of vindictive or ureventive terrof
iiviolalioii <iliofIcg.11l)ril~cil)ltaiid ofcon~idcr3t'ioii<oif 111i111;~iity.
ASstat~d, the i;cncva Cunveiitio~iuf 1. ..Iiiis~>ruliihiredalro~ether
the taking of hostages."

In Chapter VI on Compensation he says:
"There is no doubt that, if a belligerent can be made to pay
compensation for al1 damage done by him in violating the laws
of war, this willbe an indirect means ofsecuring legitimate warfare."

In Section 59 a, in discussing the duty to treat, in wartime,
individuals in a humanitarian manner, he says:
"The four Geneva Conventions of 1 49 provide uniformly that
in the case of an armed conflict not o?an international character
occurring iii the territory of one of the parties to the Convention
each party to the conflict shall be bound to apply, as a minimum,
certain humanitarian ~rovisions of a fundamental character. Thus
it is laid down that pérsonstaking iio active part in the hostilities,
including members of armed forces who have laid down their arms or are incapacitated by sickness, wounds, detention or any other
cause, 'shall in al1circumstances be treated humanely, without any
adverse distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any other similar criteria' (Article 3; this Article
foms part of Chapter 1 which contains the General Provisions and
which is common to each of the four Conventions). In particular
the Conventions prohibit, with respect to such persans, murder,
mutilation, cruel treatment, torture, and,generally, violence to life
and person; taking of hostages; outrages upon personal dignity;
and passing of sentences and carrying out of executions without
previous judgment pronounced by a regularly constituted court
affording al1 judicial guarantees recognized by civilized peoples.
The wounded and sick must be collected and cared for. The parties
to the conflict may conclude special agreements with the view to
bringing into force other parts of the Convention."
8. The applicable law as it appears in the Koran has been dis-
cussed as foiiows:

"...Nous avons vu comment; en autorisant la guerre de légitime
défense, le Coran a fait une distinction nette entre les belligérants
et les non-belligérants, en ordonnant de ne combattre que les seuls
combattants.
Il faut entendre par là ceux qui se trouvent effectivement sur le
champ de bataille et qui font usage de leur force agressive. Ainsi,
guidée par des instructions précises du Prophète, la législation
iàécartertoute confusion pour protéger lesfaiblescontre les méfaits
de la guerre et éviter aux civils toutes ses mesures violentes. Ainsi
femmes, enfants, vieillards, infirmes, aliénés, paysans dans leurs
champs, ermites dans leurs cellules, tous doivent êtreimmunisés
contre les hostilités."

This discussion was taken from "Le Droit international public et
1'Islam" by Dr. Mohamed Abdallah Draz, 5 Revue égyptienne de
Droit international 17, 22 (1949).

9. To add further to these authorities would be, the United
States Govemment submits, unnecessary at this stage. If there
were an international penal Court, the Government of Bulgaria
would suffer a penalty commensurate with those who commit
crimes; the Bulgarian Government might not be asked just ta pay
damages or ta show it has punished individual officers. The United
States will have further to Say on this subject below.

I. Maritime Law
In the opinion of the United States Government, the well-known
maritime precedents are particularly appropriate to cases of over-
flying aircraft. The currents of the air are similar to the currents MEMORIAL OF U.S.A. (2 XII 58) 217
of the sea and the effect of weather and the failure of instruments
and of pilots are as notorions in the air as they are on the sea. The
established law of the sea, in so far as relevant, may properly be

consulted in determining novel difficulties of law arising with
respect to navigation in the air.
There are of course numerous respects in which the situation with
respect to aircraft is not fairly analogous to the situation with
regard to vessels at sea. The cases must be examined as they arise.
But in the present case and in sirnilar cases, as wili be seen, the
analogy in broad outlines is clear.
The case of an aircraft off its proper course in the air is similar
to a ship off its course on thesea. It is, therefore, assimilated to the
cases at sea. Particularly relevant are cases of an act of God or
force majeure driving a ship off its proper course. The law and
practice have long been established at sea that a ship in such a
plight should be aided, not ensnared or held for piratical airns of
salvage, ransoin, or enslavement of the crew. The ancient laws of
the sea are pertinent.

The usages and practices of the sea, which have provided mari-
ners with guides for their conduct for many centuries, form part
of the basic law of civilized governments in the sense that their
principles are incorporated in the codes and the Court decisions
and accepted practices of many nations, including the maritime
nations of the western world.
To cite American authorities:
(a) United States Courts have held that the federal Death on
the High Seas Act, 41 Stat. 537, 46 U. S. C. $§761-767, which was
enacted March 30, 1920, is applicable to deaths occurring in air-
craft flying in the air space over the high seas. See, among other

cases, D'Aleman v. Pan American World Airways, Inc., C.C.A. zd,
decided October z, 1958 (27 United States Law Week, October 14,
1958). The court said, among other things:
"The means of transportation into the area is of no importance.
The statutory expression 'on the high seas' should be capable of
expansion to, under, or over, as scientific advances change the
methods of travel. The law would indeed be static if a passenger
on a ship were protected by the Act and another passenger in the
identical location three thousand feet above in a plane were not.
Nor should the plane have to crash into the sea to bring the death
within the Act any more than a ship should have to sink as a
prerequisite."
(b) "Admiralty law is a body of concepts international in char-
acter like 'international law' itself, or the 'law merchant', which,
like them, has its special history both in andoutside of our Anglo-
American 'law'.In this general and international sense, admiralty
law has its roots in a more remote past than other branches of
our law. It has also its own classic expositions..its ancient codes
and usages ..."(Robinson, Handbook of Admiralty Law in the
U.S., p. 1.)
16218 MEMORIAL OF U.S.A. (2 XII 58)
Of these codes, the ancient ROUS,sometimes calied Judgments, of

Oleron of medieval France are most cited; in Anglo-American
jurisprudence they are particularly valid because they were adopted
specifically by Richard the Lion-Hearted on his retum from the
Crusades. As Judge Coxe stated (in an article on "Admiralty Law"
in 8 Columbia Law Reuiew 172): "These three codes, the laws of
Oleron, the laws of Wisbuy and the laws of the Hanse Towns, are
the most important of the ancient codes-they are the three arches
upon which rests the modern admiralty structure." See also the
famous opinion of Justice Story, in DeLovio v. Boit (C.C. D.
Mass., 1815) 7 Fed. Cas. at p. 419, approved by the Supreme Court
in Insurance Co. v. Dlmhanz (1870) II WaU. 1, p. 35.
As set out in I Peters Admiralty, Appendix Reports reprinted

30 Federal Cases, pp. 1171-1187, Articles XXV and XXVI of the
Laws of Oleron read as foliows:
"ArticleXXV.-If a ship or other vessel arriving at any place,
and making in towards a port or harbour, set out her flag, or give
any other sign to have a pilot come aboard, or a boat to tow her
into the harbour, the wind or tide heing contrary, and a contract
be made for piloting the said vessel into the said harbour accord-
ingly; but by reason of an unreasonable and accursed custom, in
some places, that the third orfourth part of the ships that are lost,
shall accrue to the lord of the place where such sad casualties
happen, as also the like proportion to the salvors, and only the
remainder to the master, merchant and mariners; the persons
contracting for the pilotage of the said vessel, to ingratiate them-
selves with their lords, and to gain to themselves a part of the ship
and lading, do like faithless and treacherous villains, sometimes
even willingly, and out of design to ruin ship and goods, guide
and bring her upon the rocks, and then feigning to aid, help and
assist, the now distressed mariners, are the first in dismembering
and pulling the ship to pieces; purloining and carrying away the
lading thereof contrary to al1 reason and good conscience; and
aftenvards that they may be the more welcome to their lord, do
with al1 speed post to his house with the sad narrative of this
unhappy disaster; whereupon the said lord, with his retinue ap-
pearing at the place, takes his share; the salvorç theirs, and what
remains the merchant and mariners may have. But seeing this is
contrary to the law of God, our edict and determination is, that
notwithstanding any law or custom to the contrary, it is said and
ordained, the said lord of that place, salvors, and al1 others that
take away any of the said goods, shall be accursed and excommu-
nicated. and uni shedas robbers and thieves.asformerlv hath been
dcclnred. ~iii nll fnlsc niitl trenclirrous pilots shall hc'condrninc~l
to sufiern most rigorous 2nd unmcrciful dearli: and Iiigli gibl>ets
may be where they so guided andabrought anJshipieli:iscor vessel tov
min as aforesaid, and thereon these accursed pilots are with igno-
miny and much shame to end their days; which said gibbets are to
abide and remain to succeeding ages on that place, as a visible
caution to other ships that shall afterwards sail therehy." MEMORIAL OF U.S.A. (2 XII 58) 219
"Article XXVI.-If the lord of any place be so barbarous, as not
only topermit such inhuman people, but also to maintain and assist
them in such villanies, that he may have a share in such wrecks,
the said lord shall be apprehended, and al1 his goods confiscated
and sold, inorder to make restitution to such as of right it apper-
taineth; and himself to be fastened to a post or stake in the midst
of hisown mansion house, which being fired at the four corners,
al1shall be bumt together, the walls thereof sball be demolished.
the stones pulled down, and the place converted into a market
place for the sale only of hogs and swine to al1 posterity."

Article XXXI reads:

"If a ship or other vesse1happens to be lost by striking on some
shore,and the mariners thinking to Savetheir lives,reach the shore,
in hope of help. and instead thereof it happens, as it often does,
that in many places they meet with people more barbarous, cmel
and inhuman than mad dogs, who to gain their monies. apparel,
and other goods, do sometimes murder and destroy these poor
distressed seamen; in thiscase, the lord of that country ought to
execute justice onsuch wretches, to punish them as well corporally
as pecuniarily, to plunge them in the sea till they be half dead,
and then to have them drawn forth out of the sea, and stoned
to death."

There are several other articles of similar purport. The original
old French and older English translation are contained in The
BlacR Book of the Admirally, Volume II, pp. 465-469, which is
appended hereto, in photocopy (Annex 55).
The same are given in later French, in Cleirac, Us et Couslumes
de la Mer published in 1661, as XXV, XXVI and foliowing of the
Jugemens d'oleron; and in Pardessus, Collection des Lois maritimes,
Vol. 1 (1828), Chapter VI11 ("Coustumes de la Mer Connues Sous le
Nom de Rooles ou Jugemens d'oleron"), Articles 36 et sep. (pp. 346
et sep.). Pardessus (published in 1828), in fact, contains a classical
discussion of ancient documents anterior to the 18th century,
including the Roman law, the Greek law, and also the Byzantine
law; that is, the law applicable not only to Northern and Western
Europe but to the Orient (which would include the Black Sea). In

describing the maritime commerce of the period he notes in his
introduction (page lxxj) that Bulgaria was a center of European
trade. In practically al1 of the authoritative documents mistreat-
ment of shipwrecked persons or their goods was deprecated and
punished.
In the famous Ordonnance Touchant la Marine du Mois d'Août
1681, of Louis XIV, the pnnciples of Oleron were incorporated.
It was provided in Title IX of Book Four, Article II (Annex 56) :

"Enjoignons à nos sujets de faire tout devoir pour secourir les
personnes qu'ils verront dans le danger ,de naufrage. Voulons que
ceux qui auront attenté à leurs vie et biens, soient punis de mort220 MEMORIAL OF U.S.A. (2 XII 58)
sans qu'il leur en puisse estre accordéaucune grâce ..." (Pardesszrs.
op. cit., Vol. IV, p. 400.)

It is not, of course, asserted that we should at thistime contend
for a judgment against any accused carrying out the particular
punishments specificaily prescribed in the judgments of Oleron.
As the British Court of Appeai said in The Gas Float Whitton,
No. 2 (1896, p. 42, at pp. 47-48), citing Lord Tenterden's introduc-
tion to Abbott's Treatise on Merchant Ships and Seamen, 5th
edition :

"To anyone who reads some of their strange enactments citing
the punishments of chopping off heads, fastening to a stake and
burning it must be ridiculous to suggest that they are part of the
ments of marine practice which, together with principles found in-
the Digest and in the French and other ordinances, were used by
the judges of the English Court of Adrniralty when they were
moulding and reducing to form the principles and practice of their
Court. Al1 these sources of legal principles were used by Lord
Tenterden in his great work..."

In 1825, the United States Congress enacted a law (Chapter 65;
now 18 U.S.C. Secs. 1658 and 1659)which embodies these standards
in part. Its origin las in a Statute of the First Congress of the
United States (Session II,chapter g, Section 16, 1790). It provides.
in the current revision:

"9 1658. Plunder of distresseduessel.
(a) Whoever plunders, steals, or destroys any money, goods,
merchandise, or other effectsfrom or belonging to any vessel in
distress, or wrecked, lost, stranded, or cast away. upon the sea,
or upon any reef, shoal, bank. or rocks of the sea, or in any other
place within the admiralty and maritime jurisdiction of the United
States, shall be fined not more than $5,000 or imprisoned not more
tlian ten years, or both.
(b) IVhoever willfully obstructs the escape of any person endeav-
oring to Save his life from such vessel, or the wreck thereof; or
Wlioever holds out or shows any false light, or extinguishes any
true light, with intent to bring any vessel sailing upon the sea into
danger of distress or shipwreck-
Shall be imprisoned not less than ten years and may be impris-
oned for life. (June 25, 1948, ch. 645, § 1, 62 Stat. 775.)
9 1659. Attack toplunder uessel.

Whoever, upon the high seas or other waters within theadmiralty
and maritime iurisdiction of the United States, by surprise or open
force, malicio;sly attacks or sets upon any visse1 belonging to
another. with an intent unlawfully to plunder the same, or to despoil
any owner thereof of any moneys, goods, or merchandise laden
on board thereof, shall be fined not more than $5,000 or imprisoned
not more than ten years, or both. (June 25, 1948, ch. 645, 5 1,
62 Stat. 775.)" The owner of the vessel incurs no liability by reason of contra-
vention of the foregoing provision."

Reference is made for additional authorities to the discussion
in the Memorial of the United Kingdom, part 6, paragraphs 68
et sep.
The rule in maritime law wh'ich requires vessels at sea to Save
mariners and passengers in distress is well-known and has been
established from time immemonal. It was stated in the United
States Case of Sturtevant v. The GeorgeNicholaus (District Court,
E. D. Louisiana, Nov., 1853, Case No. 13.578, 23 Fed. Cas., page
333) as follows:
"The saving of life is an ingredient in a salvage service which
is always highly estimated by the courts. The mere preservation
of life, it is true, this court has no power of remunerating; it must
be left tothe bounty of the individuals; but if it can be connected
with the preservation of property, whether by accident or not,then
the court can take notice of it, and it is always willing ta join that
to the animus displayed in the first instance. The Aid, I Hagg.
Adm. 84. lt was, indeed, the duty of the master of the Sarah Bridge
to interrupt his voyage for the purpose of taking on board the
survivon of the crew of the George Nicholaus, in their suffering
state, for the safety of tbeirves. It was a duty imposed upon him
by the first principles of natural law-the duty to succor the dis-
tressed, and it is enforced by the more positive and imperative
be deemed a deviation from the voyage, so as to dischargecould any
insurance, or to render the master criminally or civilly liable for
any subseyuent disasters to his vessel, occasioned thereby."

4. B~assels Convention, 1938
There may also be cited as of relevance the "Convention for the
Unification of Certain Rules Relating to Assistance and Saivage
of Aircraft or by Aircraft at Sea" adopted by the Fourth Inter-
national Conference on Pnvate Air Law, held at Brussels, Sep-
tember 1938 The fact that the govemments have not found it

necessary to ratify the Convention does not detract from its validity
as a statement of international law, particularly since it cames
into aviation the law of the Brussels Convention cited above.
Article 2 of the 1938 Convention provided as follows:
"(1) Any person exercising the functions of commanding officer
aboard an aircraft shall be bound to render assistance to anv Derson
who is at sea in danger of being lost, insofar as such per;oh may
do sa without serious da-~ertothe aircraft. her crew, her pass-ngers,
or other persons.
(2) Every captain of a vessel shall be bound, under the circum-
stances contemplated in paragraph (1), and without prejudice to
more extended obligations irnposed upon him by the laws and
conventions in force, to render assistance to any person who is at
sea in danger of being lost on an aircraft or as the consequence of
damage to an aircraft. (3) For the pwposes of this convention, assistance shall mean
any help which may be given to a person who is at sea in danger
of being lost, even by merely giving information, consideration
tion and air navigationreoperate.tionsnder whichmaritime naviga-

(4) The obligation of assistanceshall not exist unless the aircraft
or thevesselis in the course of a trip or ready to depart, and unless
it is reasonably possible for it to render useful aid.
(5) The obligation of assistance shall cease when the person who
rendered by othersgunder similar or better conditions than it could
be bv himself.

(6) The iiationalle~slationsshall determinethe penaltiesdesigncd
i)artirstiallcornmunicatc to eachother tlirouch dii~loinaticchannels
ihe texts of such laws. ".

(7) No liability can rest with the owner or the armateur of the
reason of failure to discharge this obligation, except in the case
where he shall have ordered the person bound to render assistance
not to render it."

This subject was discussed in Hackworth's Digest ofInternational
Law, Volume IV, pages 380 to 383. Itwiil be seen from the discus-
sion there that the analogy to "existing maritime principles" was
embodied in the convention.
In the same connection there is cited in Hackworth a decision
of the Aberdeen Sheriff Court involving a distressed seaplane and
the applicability to that case of a domestic Air Navigation Act in
Great Britain. The question was one of right to salvage costs, a
problem not involved in the present case. The fact that salvage

costs may not be recovered has no bearing on the humanitarian
practices in which ailhumans, people at sea, people in the air, and
authorities on the ground, are required to display.
5. ICAO

Annex L to the Final Act of the International Civil Aviation
Conference of 1944. which was advisory in character, covered
"Search and Rescue, and Investigation of Accidents". It is appro-
priate to cite, not as binding by force on Bulgaria as a signatory,
since Bulgaria is not a member of ICAO, but as evidence of the
opinions of mankind, the last sentence of the introductory para-
graph :
"Upon findingan aircraft whichhas been involved in an accident'
the State iii which the accident occurs shall take al1necessarysteps
for the safety of life of the personnel involved and to establish
adequate protection of the aircraft from disturbance or pilfering,
and take such other steps as are feasible and necessary to preserve
the evidence in order to facilitate the work of investigation."224 MEMORIAL OF U.S.A. (2 XII 58)
It is also to be noted that bv footnote it was stated:

"III rlicclsc ofaircrift IJSwithin rhc territory of&non-iignltory,
tlicr~~i~~oiisil~ilft\r ~c.ir~-lir.cî;iie niirl 'nli.n~i.slionlni.irii.r
of preârrangemént betweenthe State of regi;tration and the non-
signatory."
The remainder of the Annex was devoted to the requirements
of investigation.
The internationailv a~reed standard on this subiect iscontained
in ~nnex 13 to the Convention on ~nternationd Civil Aviation
(Aircraft Accident Inquiry) :

"3.1 The State in which an aircraft accident occurs shall take
al1reasonable measures to ensure the ~rotection of evidence includ-
ing the safe custody of the aircraft andits contents for sucb a period
as may be necessary for the purposes of an accident inquiry. Such
s-fe custodv shall include reasonable ~rotection apainsu further
damage, acleessby unauthorized perçons, pilfering and deterioration,
and shall include the preservation, by photographic records or
other adequate means of any material evidence which might be
removed, effaced, lost or destroyed.
3.2 If a request is received from the State of Registry that the
aircraft. its contents. and anv other evidence remain undisturbed
pcnding insyccrit,n by an :icc;cditi.d reyrr.sriit;itiic. of th< Lof.itr
U,.<iitry.clic St.,t?iri ii.Li~clic;tircr;ift ;icii<l<.rituccurs ,li,iIl r:ak~,
allnecëssary steps to comply with such request, so far as it is
reasonably practicable to do so; provided that the aircraft may
be moved to the extent necessary to extricate perçons, animals,
or to eliminate any danger or obstruction to air navigation, to other
transport or to the public.

3.3 Subject to the provisions of 3.1 and 3.2, the State in which
the aircraft accident occurs shall release custody of the aircraft,
the contents, or any parts thereof, wbich are no longer necessary
for the purposes of an accident iuquiry, to any person or persons
duly designated by the State of Registry. For this purpose the State
in which the aircraft accident occurs shall facilitate access to the
aircraft, the contents or any parts thereof, provided that, if the
which the State finds it impracticable to grant such access. it shall
itself effect removal to a point where access can be given."

Reference might also be made to Article 25 of the Convention
on International Civil Aviation whereby:
"Each contracting State undertakes to provide such measures
of assistance to aircraft in distress in its territorv as it rnav find
practicahle, and to permit, subject to control by itiown authorities,
the owners of the aircraft or authorities of the State in which the
aircraft is registered to provide such measures of assistance as may
he necessitated bv the circumstances. Each contractine S"ate. when
&dertaking searlh for missing aircraft, will collaborate in coordi-
nated measures which mav be recommendedfromtime to time pur-
suant to this Convention:" MEMORIAL OF U.S.A. (2 XII 58) 225
In line with this Article, Annex 12 to the Convention (Search
and Rescue) requires contracting States to permit, subject to
certain provisions, immediate entry into their temtory of equip-
ment or personnel needed for search and rescue.

AU of these provisions were violated by the Govemment of
Bulgaria. They were violated directly, and in their implication.
That govemments owe a duty of safety to ovedying passengers
and crew and a duty riot to kill or destroy or tolerate destruction
and pilferage, is plain.
6. Modern Precedenls

Modern aviation precedents are discussed by Lissitzyn, "The
Treatment of Aerial Intruders in Recent Practice and International
Law", Volume 47, The American Jozirnal O/ International Law,
page 559 (1953). Amorig other authorities quoted by him the fol-
lowing (p. 563), from Article 42 of the Rules of Aerial Warfare
proposed by the Commission of Jurists in 1923, is of interest:

"Where aircraft and their personnel are in distress and seek
shelter in neutral territory, knowing that theirate will be intern-
lost its bearings or experienced engine trouble or run out of fuel,
the neutral State is under no obligation to exclude them; it is, in
fact,morally bound to admit them. This is due to the principle
that those who arc in distress must be succoured. The prohibition
in the article is aimrd at those who enter in violation of the rights
of the neutral State."

The citation is eiven as The American foz~rnaloi InternationalLaw,
Suppl., Vol. 32u(1~~8),P. 35.
He also quotes fron~ the diplomatic negotiations between the
United States Government and the Government of Yu~uslavia of
August 1946 conceming the treatment of deviatingunarmed trans-
ports of the United States Government. These are relevant because
of the general principles involved and the special relevance to the
present case. He quotes first from the instructions to the American
Ambassador in Belgrade, released to the press August 20, 1946
(reprinted on page 571, ibid.).

"It would be assumed that the authorities of Yugoslavia would
wish to render a maximum of assistance and succor to aircraft of
a friendly nation when the latter are forced by the hazards of
navigation in bad weatlier ovcr dangerous mountain barriers to
deviate from their course and seek bearings over Yugoslav territory.
On the contrary, Yugoslav fighter aircraft have seen fit without
previous warning to take aggressive action against such a United
apparent from its markings, and have forced it to crash land aftery
wounding one of its passengers. Subsequently Yugoslav authorities
have detained the plane, its crew and passengers and refused to
permit American consular officers access to the plane or personnel
until specific representations were made by the United States MEMORIAL OF U.S.A. (2 XI1 58) 227
nationals and not in the service of the enemy. If they are enemy
nationals or in the serviceof the enemy, they may be made prisoners
of war.
Passengers are entitled to be releasedunless they are in the
service of the enemy or are enemy nationals fit for military service,
in which cases they may be made prisoners of war.
Release may in any case be delayed if the military interests of
the belligerentso require.
The belligerent may hold as prisoners of war any member of the
crewor any passenger whoseservice in a flight at the closeof which
he has been captured has been of special and active assistance to
the enemy."

D. LIABILITY OF BULGARIA AS A JOINT TORTFEASOR

As has been noted, the only basis which the Bulgarian Govern-
ment appears to have given publicly for its change of mind on the
question of liability is that nobody would have been killed on board
the 4X-AKC if the airplane had not strayed into Bulgarian air
space.

1.The assertion is curious. IfA hires B to transport him safely
to point X, and if B. out of negligence or otherwise, transports
him through a land of brigands and bandits who fa11upon A and
injure him, can it be said that the brigands and bandits are not
liable, if they are caught, merely because B is also liable? Indeed,
can it be said that even if B is made topay he does not have a right
of indemnity against the brigands and bandits if he can catch
them? Yet that is essentially the position now taken by the Bul-
garian Govemment.
The assertion is more than curious. It is morally and legally

inadmissible.
This is a very strange contention, and must derive from despair.
It may be called a "but for" argument. "But for" the unauthorized
crossing of the Bulgarian frontier the Bulgarian Anti-Air Defense
Force would not have been moved to murder the passengers and
crew of the 4X-AKC. Of course, "but for" the construction of
4X-AKC by Lockheed Aircraft it could not have crossed the Bul-
garian frontier or any frontier.
As between the carrier and the passengers, the Rhodian Sea-
Law (see Ashbumer, Rhodian Sea-Law, Oxford, ïgog, page 83)
provided an analogy valid in admiralty and certainly for the
eastern Mediterranean maritime commerce. It provided for the
liability of the captain of a ship who did just this to passengers.

"4. The captain brings the ship into a place which is infested
by thievesor pirates, although the passengers testify to theain
what is at fault with the place. There is a robbery. Let the captain
make the loss good to the sufferers. On the otber hand, if the pas-
sengers bring the ship in in spite of the captain's protests and
something untoward happens, let the passengers bear the loss."228 MEMORIAL OF U.S.A. (2 XII 58)

But the liability of the thieves and pirates is implicit and did
not need to be specified in the Rhodian Çea-Law. It is specified

sufficiently in the Rolls of Oleron, although the liability was neces-
sarily criminal, in addition to being civil.
See also Ashburner, pages cxliii-cxliv:

"Piracy in the palmy days of the empire had practically disap-
pearcd from the Mediterranean. Strabo, III, j, p. 144; Epictet.
Diss. III, 13, g; Plin. N. H. II, 46 (117). Of more weight than
these bits of rhetoric is the rarity of allusions to pirates in the
Digest. Tbe Digest, on the other hand, deals at great length with
wreckers, against whom various emperors were obliged to take
strong measures (see especially Dig. XLVII, 9).
In the genuine part of the Sea-law there is no reference to wreck-

ers. The reason for the omission is, not tliat wreckers did not
flourish, but that the matter was suficiently dealt with in the
Basilica. On the other hand, sea-rohbers and land-robbers received
a great deal of attention. Pirates, fire. and wreck are the tbree
normal maritime dangers. The acts of pirates give rise to general
average contribution (c. 9) as they do in the Digest (XIV, 2, z, 3).
Land-robbers arc often referred to. (1)The land-robber cuts cahles
or steals anchors (c. 1, 2). (2) The captain who, in defiance of the

passengers, brings the ship into a place which is infested with
robbers, must make good to the passengers their losses; and if the
passengers bring the ship in contrary to the captain's wish they
are responsible (c. 4). (3) If some of the passengers go ashore, and
the captain lias to put off suddenly for fear of robbers, he incurs
no responsibility to tliose left behind (c. rj). '"8

' Chapters 4 and 15 may also refer to risks from pirates.

a It is true that in ancient times there were instances where the captain, the
crew and the passengers were co-adventurers and where the faulty navigation
was not chargeable to the captain and crew exclusively. Such a situation is dis-
cuçsed in Ashhurner. The Rhodian Sen-Law, on pages cxli and cxlii:
"Dangers frornIgnorance and Wanl of Dircipli>re
There was very little difference, as regards knowledgof navigation. between
the different persons on board ship. Scientific knowledge there was none:
and in point of experience every one was on much the svme level. It was not
merely that there wus little difference between officersand crew. The merchantç
had often made many voyages accampanying their goodç. and were as well
qualified to give an opinion in matters of wind and weather. of coasts and
harhoun. of shoals and quicksands, as the oldest mariner on board. The in-
evitable result was that in times of emergency every one did give an opinion.
and that the rnovements of the ship were decided upon in the last resort hy
a rnajority.Some legislationç attempt to check. or at least to regulate,this
tendency to nnarchy hy providing a committee of navigation-a sort of rep-
resentative body. Thus the Venetian statute of Zeno(c. 73) prescribes the
appointment of five men-the patronus, the nauclerius. and three merchants
chosen by the whole body of merchantç on board. This body has entire control
of the navigation. The maritime çtatute of Ancons (c. 32) is substantially
to the same effect. [Compare moles d'Oleron, ç. z (Ptird..1,p. 324) "quiring
the captain ta consult the crew.]
The influence of the merchants and passengers upon the navigation is
illustratedin the Sça-law. Apparently the passengers (c. q)or the merchants The Bulgarian position may be further reduced to absurdity.
IVhatever may be said of the various formulations of the rules
of proximate cause and legal causality, it is quite clear that the
only relevance that the crossing of the Bulgarian frontier in this
case has to the killing of the passengers and crew of 4X-AKC is

that it gave to the Bulgarian authorities, and to those who domi-
nate them, an opportunity to exercise with relative impunity the
wilful and wanton and independent act of murder which they
might othenvise have been impeded from exercising had the

4X-AKC been over some other government's terrain. It is appro-
priate, at least in this context, to dispose of the Bulgarian Govern-
ment's contention by citing the dictum of Lord Bacon:

"In jure non remota causa, sed proxima, spectatur. [In law the
near cause is looked to, not the remote one.] It were infinite for
the law to judge the cause of causes, and their impulsion of one
another; therefore it contenteth itself with the immediate cause,
and judgeth of acts by that, without looking to any further degree."
(Bacon, Maxims of the Law, Reg. 1, as cited in Prosser, Handbook
of the Law of Torts (1944).)

2. Beyond that, and strictly in the idiom of lawyers, the offense
of the Bulgarian Government is a separate one; but even if it were

single, with an alleged but undemonstrated related offense of El
Al, the liability would be "in solidum". In al1known legal systems
these offenses are and must be joint and several.

3. It is true that the Statutes and Rules of this Court do not,
nor, as far as can be seen, does the jurisprudence of this Court,
deal specifically with the problems of the apportionment of liability

between joint tortfeasors. But the application, if need be, of
Article 38, I (c) and(d) of the Statute, provides adequate authonty,
for it appears that in al1civilized countrieç the rule is substantially
the same. An aggrieved plaintiff may sue any or al1joint tortfea-
sors, jointly or severally, although he may collect from them, or

any one or more of them, only the full amount of his damage.

(c. 39can insist on taking the ship inta place notwithstanding the protestç
of the vavuznpos. [Cp. Conçtitutum Usus of Pisa c.28. ed. Bonaini, II. p. 915:
Consulate of Sea. c. 56. 64.1
Hoiv late this state of things lasted is show" by various passages in the
Voyages of Andrea Pitti. On one occasion the commander surnrnons the
whole ship's Company to give their opinion what the land is which they see
('il padrone di nave. ragunato tutto huomoa consiglio. volse il parere di tutti'.
p. 16).The identity of education and experience in captain and crew accounts
also for the loss of al1 discipline intime of dangSeethe accounts in Andrea
Pitti of the mariners' behaviour in a great storm: 'Io vedi alcuni marinari
vechi corninciarea piangieree dare ordine a procacciare bvrile vote per potere
çopra esse salvacii' (p. 15'In ultimo rimedio tutti abandonarno la navegittati
in terra ginocchioni, tutti ad alta voce chiamando Sant' Ermo' (p. p)."
131i<.d~:ii\iirthe aii;ieiit îutlir~rfroin Hg~nnrliir clni;,nde;xrlicccvertng
thc eaitern >lidirrrrxnc~nand the I<yr;iiiriiir 1:iiiliire Il furtisu,cll-knuwn.
aprrnd to otlirrarclis.230 MEMORIAL OF U.S.A. (2 XII 58)

4. The relationship between the joint tortfeasors themselves is
a separate problem. Whether a joint tortfeasor who has paid may
have recourse for indemnity or contribution against the others
frequently depends on the relative degree of culpability involved.
Certainly in the present case, the persons who caused the injury of
which the United States cornplains were those who killed the
Amencan citizens on board 4X-AKC, and they were the Bulgacian
authorities. What rights the next of kin of the passengers may
have against El Al Israel Airlines Ltd. is not relevant in the present
proceeding, which is an international proceeding, nor is it relevant
to discuss whether any rights exist against the Government of

Israel.
5. The law that the liability of joint tortfeasors is both joint and
several appears universal.

The American and Anglo-American Common Law rules are
stated in the following quotation from American Jurisfirudence
(Annex 58):
"A person who joins in committing a tort cannot escape liability
by showing that another person is liable also."

The highly authoritative Restatement of the Law of Torts by the
American Law Institute states (Annex 59) :

"..each of two persons who is independently guilty of tortious
conduct which is a substantial factor in causing a harm to another
is liable for the entire harm in the absence of a superseding cause".
Halisbury, in Tlie Laws of England, states the Common Law as

follows (Annex 60) :
"Wherô two or more persons have so conducted themselves as
to be liable to be jointly sued, each is responsible for the injury
sustained by reason of their common act."

The French law on the subject has been stated as follows:

"Origin of the principle. A very old jurisprudence acknowledges
that al1persons who have participated in the same delict or quasi
delict are obliged to make compensation. This jurisprudence has
itsorigin in the Roman principles concerning fraud and violence.
Ifseveral persons committed the delict, al1were liable for the whole
of the damages, because the responsibility of one was not dimin-
ished by the tort of the others; but if one made compensation to
was no more damage to indemnify. This rule haç always beense there
preserved in our old Law.Article 55of the Penal Codewhich estab-
lished joint liability among the authors of a major or minor crime
must be regarded as an application of the traditional principle, and
it is likely that the omission of this principle in the Civil Code is
the result of an inadvertence." (GeorgesRipert, z Traitéélémentaire
de Droit ciuil 356 (zd ed. 1g43).) MEMORIAL OF U.S.A. (2 XII 58) 231

Refemng ta Article 1382 of the Civil Code, authorities have
stated:
"The liability for the whole of the damages of each wrongdoer
was, in fact, established in the old Lawwhich inherited it fromthe
Roman law. To the draftsmen of the Civil Codeit appeared as an
indisputable principle. If they wanted to discard it, they would
not have failedtoexplain it in a special text. The text ofArticle 1382
was probably considered broad enough to include the principle
without being necessary to state it expressly." (Henri Mazeaud et
Léon Mazeaud, 2 Traitéthéoriqueet pratique de la Res$onsabilité
civile 791 (4th ed.).)

Article 1382 provides:
"Any act of a persan that causes damage ta another shall oblige
him, by whose fault it occurred, to compensate."

Another legal writer, René Rodière ("Responsabilité", in Dalloz,
4 Rd$ertoire de Droit civil 582 (1954)). states that "the best discus-
sion and explanation of this liability is found in a decision of the

Court of Cassation of July II, 1892:
'Reparation for a wrongful act due to the fault of two or more
persans must be ordered for the whole amount against either (of
the tortfeasors) for the benefit of the injured party, whenever there
is a direct and necessary relation between each fault and the entire
damage.' (Civ. II Juillet 1892. two decisions, D.P. 94. 1. 513 and
561)."

It is not necessary to discuss, in the present context, the French
law as to contribution and indemnity between joint tortfeasors
except to state that the doctrine applies.
"Contribution among joint tortfeasors. The responsib'ility of
each for the wholeamount isjustified by the interest of the aggrieved
party. When the latter has been compensated, it is not justifiable
that the choice he has made among those who are liable should
exonerate those he didnot sue." (Planiol et Ripert, 6 TraitéPratique
de Droit civil lrançais 981 (zd ed. 1g5z).)

6. The joint and several liability of joint tortfeasors was estab-
lished in Roman Civil Law as has been indicated. In Sohm's
Institutes of Roman Law (Second Edition, Ledlie (I~oI), Section 74).
the law is put in these terms:

economically speaking, only one obligation... A correal obligation is.
means a pluralityof obligations based on a community ofobligation;
a joint liability in respect of the whole of the same debt or a joint
right in respect of the whole of the same claim.
From a correal obligation we have to distinguish a solidary
obligation. A solidary obligation means the se$arate liability of
several persons in respect ofoneand the sameabject. The commonest
example of a solidaryobligation is the case of a joint delict, as when MEXORIAL OF U.S.A. (2 XII 58)
232
two or more persons, acting jointly, do damage to property or
commit a theft. So far as the obligation creates a duty to pay
damages, it is solidary. Each of the CO-delinquentsis liable to make
good the entire damage...
...In the law of Justinian the rule continues to hold good that
correal obligation-joint agreement-means joint liability, and
solidary obligation-joint delict-separale liability in respect of
one and the same act."

7. In fact, the Bulgarian law is precisely the same. In Mevorah,
Commentary on the Law of Obligations and Contracts the following
is stated and a photocopy of thisstatement is included as Annex 61 :

"According to Article gr any joint debtor may be forced to pay
the entire debt. This is the most important effect of passive joint
liability. This means that the creditor may demand full payment
from al1 debtors, from several of them, or from only one of them
(Baudry, 1212).The court which is competent with regard to one
of the debtors is also competent with regard to al1 the remaining
debtors (Article 163 of the Civil Code). This is so obvious that the
legislators did not even have to state it. The sharing of debts
(beneficiumdivisionis)is incompatiblewith the idea of joint liability ;
it may be songht only by a simple CO-guarantor (Article 648). but
not by a joint guarantor or debtor. Indeed, joint CO-debtorsare
guarantors with regard to one another, but they have that status
only in their mutual relations. With respect to the creditor every
one of them is liable for the entire debt."

The liabilities of joint debtors and of joint tortfeasors are in the
present context similar. A fuller text of Mevorah's study is con-
tained in Annex 62.
Indeed, the current Bulgarian Civil Code under the present

regime contains the same. In the 1955 edition of the Bulgarian
Code, the following is stated:
"xzz. The creditor may request liquidation of the entire obliga-
tion of any one of the debtors.
Suit brought against any one of the joint debtors shall not
prejudice the rights of the creditor with regard to the other co-
debtors 'O."

8. The Soviet Code is to the same effect. Article 408 of the
Civil Code of the RSFSR provides: "Persons who jointly cause an
injury shaU be jointly and severally liable to the injured person."

(See Gsovski's Soviet Civil Law, Volume II (1948). page 212.)
Discussing liability for tortious injury and breach of contract,
and commenting on the work of Professor Agarkov, Soviet legal
authority, it is stated (Gsovski, Soviet Civil Law, Volume 1, pages
516 and 517) as follows:

Dr. N. bfevorah. D. 1. Lidzhi and Leon Farkhi,Coinmentovy on the Law O/
Obligationand Contracts (1926)Second Edition, Articles1-333,Vol. 1.
'OColleclioofCivilLawr, Law of Obligations and Contractsadopted November
22, IQ~O,publishedin OfficiaGazette, arnended thereafterpage 243. MEB~ORIAL OF U.S.A. (2 XII 58) 233
"In instances of tortious injury, several persons are held jointly
and severally liable ifnder Section 408 they have 'jointly' caused
the injury.
'Jointly' (Professor Agarkov comments) means that it is impos-
sible toconceive one portion of injury as inflicted by the acts of
one tortfeasor and another portion thereof inflictedby anotherort-
feasor. Under Section 405 parents, guardians, et cetera, are liable
jointly and severallytogether with theirnorchildrenover fourteen
years of age and wards, for injuries caused by the latter."

9. Further generally applicable comparative law on joint and
several liability of joint tortfeasors is contained in Annex 63.
See aiso "Responsibility of Joint Wrongdoers in Continental
Laws", hy Ernst J. Cohn, 51 Law QuarterlyReuiew, p. 468 (1935).

E. MODERNRULES OF THE AIR FOR STRAYING AIRCRAFT

It must be remembered that there is a vast amount of current
practice among civilized nations with respect to the treatment of
straying aircraft, which is not necessarily codified in published
regulations containing exhortations and prohibitions. It is well
known that governments issue notams (i.e. notices to airmen) and
that some governments issue prohibitions and wamings. The im-
portant thing in this case is that the Govemment of Bulgaria, by
July 27, 1955, had issued no tmly applicable warning or notam, so
far as can be ascertained, controlling straying traffic, emergency
situations, or the like; nor has it relied on any in the diplomatic

exchanges upon which the present litigation is based.
In general, as the United States Government is fuiiy aware, its
nationals having among the largest and most numerous air carriers
in the world, the largest air traffic, and having a great number of
active intercepting aircraft, the following facts mnst be bome in
mind by this Court, at the risk of reiteration:

I. In the first place, the appearance of the 4X-AKC over Bul-
garia must have been seen, particularly by observers on mountain
tous. beloneine to the Anti-Air Defense, who reuorted it to the
g&nd concroÏat Sofia. It must alsohave been seenon the numerous
- ~ ~ ~ ~ ~ ~ - - - ~ ~ ~ ~ - Buluarian Govemment undoubtedlv
possesses at different points in Bulgaria that cover substantial
adjacent areas of Yugoslavia as well asthe Bulgarian border; and
the radar observers undoubtedly reported the tracking of 4X-AKC
asit came from Belgrade into Yugoslavia and then followed it with-
in Bulgaria. These facts and the continuous tracking were undoubt-
edly reported by the radar observers to their local controls, and
by the local controls to the central control staff in Sofia. They may
even have been reported to the highest political and defense
authorities of the Bulgarian Govemment in Sofia for information
and instmctions-a matter on which the Bulgarian Government
has the best testimony available.

'7234 ME~IORIAL OF U.S.A. (2 XII 58)
2. The speed of the aircraft and its size could undoubtedly be

observed in this manner. It was obvious to the ground observers
that this was not a jet bomber or fighter but a relatively lumbering,
propeller-driven. civil international transport plane, probably off
course. In any case, the ground control could have easily managed
to communicate, or tried to communicate, with the 4X-AKC in
the air by voice radio, orC\V, near Tm, obtaining a description of
its identification and its purpose in Bulgaria. If the ground control
authorities wished to issue orders that 4X-AKC should leave
Buigaria, they couid have done so and described a route for the
airplane to follow. This is a common practice.

3. The Bulgarian Government obviously possessed fighter

planes of far greater speed and maneuverability than the 4X-AKC,
a relatively slow, propeller-driven Constellation civil transport
plane. The description given in the Bulgarian diplomatic notes and
statements on the interception of the 4X-AKC shows that its jet
airplanes intercepted it below Dupnitsa, perhaps near Sopovo.
Undoubtedly the jets started from Kumaritsa, which is 35 nautical
miles, approximately, from the point of interception. Yet 4X-AKC
itself had onlytraversed, including itsturns east and west, 45 nauti-
cal miles from Tm and a considerably shorter distance from the
moment the fighter aircraft were ordercd into the air. Furthermore,
it may be emphasized, the weather was good, the visibility clear
(see Annex 50). The case necd not be discussed, therefore, of an
intruding aircraft of unidentified nationality, faster than, or as fast

as, defensive fighter aircraft, or insufficiently markcd for identifi-
cation by intercepting fighters. The case necd not, similarly, be
discussed of an aircraft flying evasively or erratically ovcr a known
prohibited security area. This aircraft, 4X-AKC, according to the
Bulgarian Government's own account, flew in a methodical manner
as would a relatively slow transport of an international civil airline.
Inasmuch as the United States Government finds it difficult to
believe that the Bulgarian Government did not engage in some
communication with,the 4X-AKC in the air prior to ordering it shot
doan, and certainly even aftenvards, the point becomes even more
important that the two fighters, making loops and passing around

and in back of the slower transport, as thousands of witnesses in
the Struma Valley saw, were easily able to sec its full markings.
This is the testimony of witnesses (see Annex 52) who further
indicate that the 4X-AKC descended in altitude after interccption.
These markings gave the name of the line as El Al Israel Airlines
and the number of the plane as 4X-AKC, and showed clearly that
the plane had no armament-indeed, the fighteraircraft may have
flown close enough to see the passengers in the passenger portion
of the aircraft and the crew in the crew section.
It is, moreover, incredible that the crew of the 4X-AKC, in the
circumstances, did not by voice, hand signals and C\V implore the MEMORIAL OF U.S.A. (2 XII 58) 235
fighters and the ground control not to shoot, not to continue to

shoot, to let 4X-AKC land or to let it pass back into Yugoslavia
or down into Greece.
It seems equally incredible that the authorities at high level in
the Bulgarian Government, as well as those at lower levels, such
as the fighter planes' pilots and their ground controllers, determined
to kill the crew and the passengers and to destroy the 4X-AKC
despite the pleas of the crew and the inhumanity of the act. But
that is what happened.
4. In these circumstances it was the Bulgarian Government's

international legal duty, the United States Government submits, in
accordance with the long-held principles of international law and
morality and the practice of civilized governments:
(a) To have noted the number of the aircraft and its nationality
and permitted the aircraft to fly out into Greece or into Yugoslavia
and then taken the matter up in diplomatic channels to obtain an
explanation or prevent a recurrence.
This practice has been followed and adopted by the civilized
governments of the world. The United States Government has had
occasion to irivoke this rule in the past, and it has never been
challenged diplomatically. Indeed, in the case of the destruction
by Yugoslav fighters, on August 19, 1946, of an Amencan transport

airplane with military personnel, near Bled, the Yugoslav Govern-
ment paid damages for the killing of the personnel of the overflying
airplane and the Prime hlinister of Yugoslavia stated, in part, in
a note of August 31, 1946 (No. 10381) as follows:
"(Two) As 1already stated both orally and in writing ta Anglo-
American correspondents. 1 have issued orders to our military
authorities to the effect that no transport planes must be fired at
any more, even ifthey might intentionally fly over our territory
without proper clearance, but that in such cases they should be
invited to land; if they refused to do so their identity should be
taken and the Yugoslav Governmcnt informeri hereof sothat any
necessarysteps could be undertaken through appropriate channels."

(For exchange of diplomatic correspondence see U.S. State Depart-
ment Press Release of September 3, 1946, in 15 Department of State
Bnlletin, p. 505. and U.S. Naval War College International Law
Documents 1948-49, pp. 208-216) (Annex 64).)
hloreover, since that time the United States Government has
obtained payment from the Yugoslav Government for the loss of
the aircraft in the case under discussion (see Settlement of Claims
by the Foreign Claims Settlement Commission of the United States
and its Predecessors from September 14, 1949 to March 31, 1955,
pp. 192 ff.).
(6) If the Bulgarian authonties feared that a security violation
or damage sufficient to require the examination of the crew, pas-

sengers orcontents ofthe aircrafthad occurred they could, by under-236 MENORIAL OF U.S.A. (2 XII 58)

standable conversation on voice radio, by CW or intelligible
maneuvers, have made it known to the aircraft that it \vas to follow
a fighter ta a properly designated airiïeld, the fighters' orders being
formulated with due care for the safety of the passengers, the crew
and the aircraft. After proper examination had taken place on the
ground it would have been the duty of the Bulgarian authorities
to release the innocent and to have taken the matter up with
the Israel Government in diplomatic channels.
This practice is universal. The United States Government has
called attention to it in international discourse on a number of
occasions. Most recently it called the attention of the So,viet Gov-
emment to it in a note of September 12,1958, in inquiring concern-
ing the destruction of a United States Air Force transport airplane
in Soviet territory. The United States Government said:

"The United States Government emphasizes tliat the missing
C-r3o aircraft was an unarmed transport aircraft clearly marked
and operating on an instrument flight plan duly filedin advance
inaccordancewith the regulationsofthe International CivilAviation
Organization. As the Government of the USSRisaware,it is recog-
nizedinternational custom whenintercepting an unarmed aircraftto
indicate by signals that the intercepted aircraft sliall follow the
intercepting aircraftta the iiearest appropriate airfield for investi-
gation."

(c)If the Bulgarian authorities were concemed that thereafter,
and while still in Bulgarian air space, the 4X-AKC might offend the
aecurity of the country by overiïying prohibited territory or fly
errantly, it was the duty of the fighters to show the 4X-AKC a
safe route into Yugoslavia or into Greece. In fact, this appeared to
de unnecessary since obviously the pilot of the 4X-AKC had dis-
covered the Struma Valley and was folloming the valley or the
Bulgar-Yugoslav ridge-tops into Greece. Indeed, eye-witnesses
observed that the aircraft was trying, in this narrow corridor, to
fly into Yugoslavia, but was prevented from doing so by the Bul-
garian authorities. It may, in fact, be doubtful whether the pilot
of 4X-AKC did not believe he was over Yugoslavia when the fighters
first shot at him, flying in a southerly direction.

5. It certainly was the duty of the Bulgarian fighters, once they
had disabled the aircraft by shooting it, forcing it to go down to a
lower altitude, so that it was unable to fly over the Belasitsa Moun-
tains separating south Bulgaria from Greece, to have permitted it
to land in the Struma or Strumitsa Valleys. There it could have
gone to the Sherbanovo strip, which was used by small planes.
although this was a risk to the lives of the crew and passengers who
were still alive after the ghastly shooting which the fighters had
directed against the 4X-AKC in flight.
Instead the Bulgarian fighters shot into the fuselage, where
the passengers were, while the 4X-AKC was in flames and the pilot MEMORIAL OF U.S.A. (2 XII 58) 237

was evidently trying to land it in Bulgaria, on the flying strip at
Sherbanovo.
The United States Government has had occasion to protest diplo-
matically, and to reserve its nght for compensation for similar
action which it has charged against a Soviet fighter aircraft, in
a note to the Soviet Government of July II, 1958. There, too,
an unarmed C-1x8 cargo aircraft described as a "slow, four-engine,
propeller-type, unarmed aircraft" ... "while on a routine flight on
the established commercial air route to Tehran inadvertently
crossed the Soviet frontier near Yerevan owing to circumstances
beyond its control". In that case, as in the present case, the fighters
made no attempt to point out a safe landing area to the burning
aircraft and, the note continued, "While the C-118was on its final
approach to an emergency landing, the Soviet fighters made another

firing run on the crippled transport". The Soviet Government has
not attempted to defend this action; it has merely denied it. The
Bulgarian Government's actions have been admitted by that
Government.

6. There is nothing in modern civil aviation history which
compares, in the United States Government's belief, to the heinous
conduct of the Bulprian Govemment's fighters in this case.
There have been, asthe United States Government has charged in
cases in this Court, cases where military aircraft of the Soviet
Government have destroyed United States Government aircraft
engaged in innocent flight in international air space in similar
fashion. There have also been cases of shooting of civil aircraft
by Soviet and Chinese Comrnunist fighters in other contexts. But
there has been no case of a civil international and clearly marked
aircraft so ruthlessly, horribly and indefensibly attacked as this.
The United States Government hopes that, in consequence of the
Court's action in this proceeding, this type of killing will be ended.

7. The United States Government has become aware, in the
course of preparation of this Memorial, that in 1948 the Ministry
of the Interior of the Government of Bulgaria issued certain decrees

and regulations with respect to the overilight of foreign registered
aircraft over Bulgaria (State Gazette, No. 36, February 14, 1948,
Protocol No. 21, 13th Decree of the Council of Ministers; State
Gazette, No. 68, Sofia. Wednesday, March 24, 1948, UKASE, No.
424).
The Protocol of the Ministry of the Interior, containing the
13th Decree of the Council of Ministers, purports to contain Regu-
lations for the Supervision of Air Traffic (Annex 65). The Protocol
and the regulations cannot he cited as justification for the Bulgarian
Govemment's conduct in this case.

(a) They have no provision with regard to the activity of military
aircraft, such as the fighters that were 'involved in this case, for238 MEMORIAL OF U.S.A. (2 XII 58)

it is specifically stated that the Minister of National Defense deals
with regulations on this subject.
(b) These regulations, which do not appear to have been super-

seded, were not generally known. Bulgaria is not a member of the
International Civil Aviation Organization and was not in 1948,
(c) The regulations have nothing to do with an airplane wafted
over Bulgarian territory or mistakenly crossing there. They have
only to do with foreign aircraft which deliberatelyflyover Bulgaria,
in which case permission is required through diplomatic channels.

Article 16 specificaiiy provides that a foreign aircraftwith a "permit
to fly over the country, must cross the frontier at a specified place"
and can land only at "Vrazhdebna" airfield or in the publicly
designated place; Vrazhdebna appears to be the officia1civil air-
field of Sofia, far away-to the north and east-from the place of
interception of the El Al 4X-AKC and the Bulgarian fighters.

(d) Article 20 provides as foUows:
"Any foreign aircraft flying over Bulgarian territory withont a
permit, or having a permit but failing to fly across the frontier
at the specifiedtime, place or height, or failing to observe the air
corridors,entering a forbidden zone, not landing at 'Vrazhdebna'
airfield or the airfield indicated in a convention or in its permit,
fromwhichparachutes or objects are dropped, whichcausesdamage,
deviates from its route or delays without notifying the reasons for
the delay,or which violates the laws and these regulations iswarned
by an order-a landing signal-three shells fired ai an interval of
IO seconds,whichobligesit to take the shortest route to the nearest
corridor and following it to make for 'Vrazhdebna' airfield or the
airfield indicated in the convention or in its permit, flying under
a height of 500 meters.
If the aircraft fails to observe the warning signal, it is forced to
observe the order by opening fire or by other compulsory methods
in the event of which it may be destroyed."

The United States Govemment is not aware whether the pilot of
4X-AKC knew of the contents of this article. Certainly the United
States Government was not aware of it. The presence of innocent
passengers on an aircraft, unknowingly and involuntarily wafted
over Bulgaria, not knowing they were there, should certainly be
a ground for not applying tbis article.

(e) iVIoreover, there is no evidence that the type of waming,
which would lead the fighter planes to conduct the border-crossing
aircraft to Vrazhdebna, was ever performed. It is perhaps for this
reason, among others, that the Bulgarian Govemment in acknowl-
edging liability described the shooting as premature, performed in
"a certain haste". The United States Govemment wishes to add
that if Article zo may ever have international vaiidity, the present
case is not one in which the article can be validly cited. MEMORIAL OF U.S.A.(2 XII 58) 239
Finally, then, as to Article 20 of the Decree of Fehruary 7, 1948,
the foiiowing may be observed:

(i) The Bulgarian Govemment does not claim to rely upon this
decree. That may be because to do so would in itself violate fun-
damental elementary pnnciples of international law.
(ii) Article20 calls for an order consisting of a landing signal of
three shells fired at intervals ofIO seconds, "which obliges it [the
intruding aircraft] to take the shortest route to the nearest comdor
and following it to make for 'Vrazhdebna' airfield ...flying under

a height of 500 meters". This did not happen and is not claimed to
have happened.
(iii) It is only then that "opening fire" or "other compulsory
methods" may he used, including the phrase "in the event of which
it may be destroyed". In other words, the methods used must be
appropriate methods of warning the aircraft to go to Vrazhdebna;
they do not include destruction of the aircraft.

(iv) There is no evidence in this case that any warning signals
were used, for the finng into the aircraft began almost immediately
on interception. Furthermore, the firing was directed to the de-
struction of the aircraft and not to making it land. The aircraft
could have been made to land without firing. In fact, it could have
been boxed in by fighters and shown the route to Sofia.
Any interpretation of this order, which was not generally known,
justifying killing, could hardly apply to a passenger plane with
passengers. They cannot be deemed to be covered. This regulation.
however severe it may be, must be deemed inappropriate and irrel-
evant. In fact this the Bulgarian Government has done in not
citing it in its diplomatic exchange.

(v) To give the regulation any international validity it must
be interpreted for the most extreme cases where, under international
law, no alternative consistent with the security of the country
could be resorted to other than destruction. Even the Bnlganan
Government, in speaking of undue haste and punishment of the
guilty, concedes this.

(vi) In order, then, for this provision to have any international
validity, it must be assumed that it grants authority to the Air
Defense Organization to destroy an aircraft only when such circum-
stances exist as under civilized international law or practice leave
no alternative to the security of the country but destruction.
Such, for example, might be the case of an unauthorized, unfore-
warned flight of a military aircraft of great speed, too much for
fighters to control, which refuses to listen to or comply with reason-
able orders of air traffic control, or of fighters in the air, to identify
itself, which bears no clear markings and which proves by its
character and conduct in other ways to possess, by objective evi-

dence, a clearly hostile intent, directing its flight toward a high240 MEMORIAL OF U.S.A. (Z XII 58)

security area, without deviation. Such a case is not presented,
in the slightest, in the events of July 27, 1955. There the facts
were presumably al1to the contrary. Indeed, if the Bulgarian Gov-
ernment will divulge the conversations and other communications
between the aircraft and the ground, and the aircraft and the
fighter planes pursuing it, the United States Government believes
an entirely different situation will be expressed. It is undoubtedly
for that reason that the Bulgarian Government has failed to refer

to the decree of 1948.
8. The Ministry of Interior's ukase, under the authority of the
decree of the Council of Ministers, prohibits the overflight of
foreign aircraft and landing in Bulgaria, unless by special pcr-
mission (Article 5). It is to be noted, however, that ArticIj calls
not for death as a punishment, but for imprisonment, for unauthor-

ized overflight, and it recognizes "extreme necessity" as a justifi-
cation.
g. If it be assumed, as has heen indicated, that the Bulgarian
authorities at Sofia became concerned with the unidentified air-
craft going toward Sofia, as the Bulgarian Government claims in
its notes on this subject, by the description of the direction of the

aircraft from Trn, that course had been changed and every peril to
the security had ended. Therefore, the rule must apply, as is well
established in various contexts of international law, that a prior
emergency situation justifying hostile action by one government
against the national of another is no longer justified when the
emergency is over. Such is the case of thRtcssianAnzericanBering
Sea Arbitration of1902. The Russian Government was held guilty
of unlawful international conduct in seizing American vessels on
the high seas. The Russian justification that they must have violated

Russian territorialwater regulations some time prior to seizure was
denied.

F. THE DUTIES OF THE BULGARIAN GOVERNMEST REGARDISG
PRIORNOTICE OF BORDER VIOLATION

I.The interest of the United States Government in asserting
the sole liability of the Bulgarian Government derives not only
from the facts of the case but from the general proposition that
what was done by the Bulgarian Government, if permitted to stand
in this Court, can be done to other American citizens flying near

Bulgaria, or other countnes, and on other airlines. It can be done
to nationals of other countries and of al1governments. The United
States emphasizes again that its interest is in obtaining from this
Court a condemnation of universal character against the shooting
of innocent civil aircraft inadvertently ovcrflying ~lthout prior
authorization. It seeks such a judgment both because the Bulgarian
practice is inhumane and unjust to the passengers and to the crews ~IEMORIAL OF U.S.A. (2 XII 58) 241
and is a wrong against the airline involved and because the practice

of civilized nations is otherwise.
2.The position of Bulgaria on this subject is difficult to foiiow.
It talks of a failure of 4X-AKC to obey a warning. Just what
"warning" does it allege its fighters gave ta the 4X-AKC? Was
it a warning that unless the airplane landed at a designated place
the fighter aircraft would take necessary action, such as boxing
it in to make it land? Was it a warning that unless the aircraft left

Bulgaria and went to Yugoslavia other similar action would he
taken against it? Was there a signal that the airplane should
descend to a lower altitude? If it was a warning that the fighters
wonld take more vigorous action to compel the 4X-AKC to come
down in Bulgaria, what place was indicated as the place for de-
scending and what route was indicated for the airplane to follow?
The Bulgarian Government's notes are completely silent on these
subjects.
On the basis of the evidence available, the United States Gov-
ernment iiiust coiiçlude that tliere were no warnings and no convcr-
sation giving the 4X-.4KC opportunity ta Save itself, the crew and
its passengers.

3. The cases where bringing a plane down is resorted to must
be justified by special security considerations,ch were not assert-
ed to be present in this case. In those cases the utmost care must
be taken that no unnecessary finng takes place and that the safety
of the passengers, crew and aircraft are solicitously cared for.

4. The United States Government wishes to take this opportunity
to point out that had the Bulgarian Government made known in
advance, to the world, that its standing orders to its pilots and so-
called Anti-Air Defense were, as the United States Government
has learned and asserts them now to have been, to shoot overflying
aircraft without warning and for the purpose of killing and destruc-
tion, it would have made this fact known to al1its citizens and al1
airplanes. They would have been cautioned to avoid al1 routes

from which they might be wafted over Bulgana. Al1airlines would
undoubtedly have taken extreme measures to avoid flight in the
corridor ofYngoslavia, known as Amber IO,from Belgrade through
Skoplje to Salonika, unless special navigational aids of higher order
than existed on July 27, 1955 ,ere available.
BuIgaria would be kriown and avoided as a wilderness, not gov-
erned by the rules of civilized conduct, and shunned in every
possible way by international aviation; international aviation
would have provided a large and wide margin of safety to passengers,
aircraft and crew. The absencc of such warning is particularly
worthy of the condemnation of this Court however much the shoot-
ing, even with prior warning, would have been condemnable. The
failure of Bulgaria to.have made known to the world its orders orpurpose to shoot to kill automatically on mere overflight and
without warning is a grave violation of international obligation.

5. It is, as has been noted, highly doubtful that any warning
to refrain from entering Bulgaria, to leave it, or to land at a safe
place, was giveii to the airplane 4X-AKC before it was shot and
attacked. The United States Government calls attention to the
statement in the Bulgarian Telegraph Agency report of Augnst 3,
1955, that when the Israeli aircraft 4X-AKC began to overfly
Bulgaria, military aircraft were ordered by "the appropriate com-
mand post" and flew up to intercept (see Annex 34).
The United States Government has been informed by reliable
testimony that the Bulgarian Government. by July 27, 1955, had

divided the territorial air space of Bulgaria into zones; and that
over some zones unauthorized overflight of any kind, whether by
civil or military airplanes, and whether friendly or unknown, re-
quired that the aircraft be shot down and destroyed without warn-
ing; that in fact, oa numher of occasions, such incidentstook place,
and had taken place, before the incident of July 27,1955; and that
in other zones restricted air space was limited to certain altitudes;
and that the shooting might be by Bulgarian fighter aircraft or by
anti-aircraft artiilery.
If an order of such content existed on July 27, 1955, it was,
as applied to such aircraft as 4X-AKC, internationaliy invalid and
should have been, and should be, withdrawn as in violation of inter-
national law.

1. The Bulgarian Government, in its notes, while admitting
liability (repudiated now, however, since Bulgaria's admission into
the United Nations) seeks color of extenuation for the action of
its fighters and its ground controllers, at least as against 4X-AKC
and its owners, in the fact that the 4X-AKC was about to enter
Greece when it was destroyed. In the note of August 4, 1955. the
Bulgarian Government States that the fighter planes warned the
4X-AKC to land "in accordance with international regulations".
As has heen noted, it has never cited specifically what warnings it
gave or how they were communicated. Nor has it indicated whether
the fighters or other appropriate Bulgarian authority indicated to
the plane that it should land in the rocky mountains and hilly
countryside of the Yugoslav-Bulgarian border or whether they
directed the airplane to some proper place for a four-engine aircraft
with passengers, cargo and crew, and if so what place that was.

Ahove all, it has not stated or demonstrated that it was necessary to
effect any landing for the security of Bulgaria or any other inter-
nationally proper reason. To have any semblance of international
legal validity such evidence would be essential. MEMORIAL OF U.S.A. (2 XII 58) 243
The note continues:

"In spite ofthis, it did not obey but continued to flyin a southerly
direction in an attempt to escape across the Bulgarian-Greek
frontier.
In these circumstances, the two fighter planes of the Bulgarian
Anti-Air Defense of this area, astonished by the behavior of the
aircraft,opened fire, as a result of which it caught fire shortly
thereafter and crashed in the area of the town of Petrich."
In continuing to summarize the conclusions of the special gov-
ernmental commission which investigated the incident, the Bul-
garian Government says:

"Eveu after having been warned, it did not obey but continued
to fly towards the south in the direction of the Bulgarian-Greek
frontier."
\mile the Bulgarian Government admits "a certain haste" in

shooting the aircraft-that is, it admits the fighters should not
have shot-the emphasis on the attempt of the qX-AKC passeriger
plane to enter Greece is, by implication, considered a wrong.
2.The United States Government challenges this character-
ization. If it was wrongful for the 4X-AKC to be over Bulgarian
territory, and the Bulgarian authorities had decided that there
was no need to force it to land, then the Bulgarian authorities

should have welcomed the attempt of the 4X-AKC to leave the
Bulgarian air space, especially since it was surrounded by two
fighters who were in a position to ensure that it could not endanger
the security of Bulgaria. There is no question under international
law that an innocent airplane, such as was 4X-AKC, wafted into,
or for any innocent reason flying within, unauthorized air space
should get, and should be helped to get, away fromthere. A special
satisfactory reason must be shown for endangering the lives of the
passengers and crew in forcing such an airplane down rather than
letting it depart under convoy or escort or other observation. The
final destruction took place within eyesight of the Greek frontier,
but the shooting had begun when the plane was far up near, or on,
even over, the Yugoslav border south of Dupnitsa, not far south
from Trn, where it had allegedly entered. The shooting continued

along the Yugoslav frontier. Thus the Bulgarian fighters hatl pre-
vented the 4X-AKC from leaving Bulgaria at any point and re-
entering Yugoslavia from which it had strayed.
3. The United States Government emphasizes again that to lend
validity for any rule of law in a case such as this, decreeing death
for the presence in its air space of an unauthorized aircraft, the
pilot of the aircraft must begiven adequate and reasonable oppor-
tunity for an alternative course of action to cure the invalidity or

to extennate it to the minimum. If the Bulgarian Government did
not desire the 4X-AKC to stay on any course going further into MEMORIAL OF U.S.A. (2 XII 58) 245
overflight could have been made the subject of diplomatic corre-
spondence. This, in substance, is what the Soviet Government has

contended in the cases cited above and this is nndoubtedly the rule
of reason and, therefore, of international law.
2. In this regard it is interesting to note the rule of law that once
a vesse1has ceased to be within the proper jurisdiction of a govern-
ment, the fact that the vessel may have committed some wrong
when within the jurisdiction of the cornplaining govemment does
not entitle that government to seize the vessel. Moore'sInternational
Law Digest, Volume 1, Section 173, pages g23-g2g, discusses the
Rering Sea Fisheries Arbitration between the United States and
Russia.
Since the Bulgarian authorities did not attempt to arrest the

aircraft at any time, wheu there was a claim that it was a security
menace, and did not attempt to bring it safely down, the circum-
stances justifying such action had passed when the shooting began
and the aircraft was destroyed. The aircraft would surely not be
snbject to seizure or injury, much less destruction, over Greece or
Yugoslavia. Therefore, in the circumstances the right of exit was
clear and should have been respected by the Bulgarian authorities.
3. It is true that in the present case the Bulgarian Government,
for the purposes of ordinary jurisdiction, did have authority to
take some appropriate action, in appropriate circumstances, against
an aircraft flying in its, Bulgarian, air space. But the propnety

of such action nould depend not merely upon the technicai crossing
of the border but upon the fact that it was a potential security
or traffic menace flying as far east as Breznik. Its attempts to
get ont of Bulgaria, therefore, extenuate whatever wrong it may
have been guilty of and indicate au intention to remove itself as
quickly as possible from Bulgarian air space. The Bulgarian Gov-
ernment would be entitled to complain, to demand an investigation
of the overflight and make clear its disapprovai of any recurrence,
but in the circumstances recited. that wonld be all.

PART IV

DAMAGES

The United States Government does not believe that there is any
necessity at this time to burden the Court, or this 1\1cmorial,with
a fine exposition of the nature or compntation of the monetary
damages alleged against the Bulganan Government in this case on
behalf of American clainiants for the deaths of American decedents.
The Bulgarian Government has not contested the amount of the
damage suffered: it has contested its substantive liability. The
United States Government has submitted, with its Application, an
adequate spccification of the damages suffered and, unless the246 MEMORIAL OF U.S.A. (2 XII 58)
Bulgarian Government admits its liability and seeks only to chal-

lenge the quantum of damages asserted, the United States Govern-
ment sees no point in enlarging, in this Memorial, on the statement
or the theory of the damages, which are most modest and normal.

I. The United States Government desires to remind the Court
again that the case is not one of damages suffered by negligent act
or vicarious liability. The case is one which, if committed by indiv-
iduals; would submit them to charges of murder and in many
countries to capital punishment and certainly to maximum penal-
ties. The fact that this Court may feel it haç no power to issue such
judgments should not, it is submitted, prevent it from noting that
the Bulgariad government is hardly in a position to quibble about
dollars. However, the sum of $257,875 requested in the Applica-
tion on behalf of the privatc American claimants, is purely com-
pensatory.

2. On the subject of additional amcnds, of which the United
States gave notice in its Application, paragraph 3, the United
States Government respectfully submits that the Court should
grant an additional judgment to the United States Government for

$~oo,ooo for the additional wrongs wantonly committed by the
Bulgarian Government ;that is, other than those committed against
the next of kin whose monetary claims for compensatory damages
have been espoused by the United States. For if we were to follow
oniy the compensatory theory of civil damages in general, we might
conceivably reach a point where no damages would be payable
though treacherous murders were committed internationally by
one govemment of the nationals of another government. Additional
amends to the injured government are therefore desirable and even
necessary.
International law authorities have recognized the existence of
this problem (see, for example, the reservation to the judgment of
Judge Parker in the Lusitania case which is cited by the Memorial

of the Government of Israel in the parallel case, paragraph 104,
page 108, last sentence).
\On the issue of damages the applicable case is, therefore, the
I'm Alone case, which is discussed in Volume 1,Whiteman's Damages
in Internationai Law (1937). pages 151-157, 717. In that case the
commission, consisting of Mr. Justice Van Devanter of the United
States Supreme Court and Duff, Canadiancommissioner, ruled that
the United States should pay, in addition to individual sums for the
sinking of a rum-rnnner of Canadian registry as compensation to
the members of the crew who were not parties tothe illegal conspir-
acy to smuggle liquor into the United States, a sum of $zg,ooo to
the Canadian Government in addition to apologizing to that Govern-
ment for the intentional sinking of the suspected vessel. The com-

mission said that: AIEIIORIAL OF U.S.A. (2 XII 58) 247
"...the sinking could not be justified by any principle of inter-
national law ..The act of sinking the ship ...by officers of the
United States Coast Guard, was ....an unlawful act;"

and the commissioners considercd that the United States ought:
"... formally to acknowledge its illegality and to apologize to His
Majesty's Canadian Government therefor; and, further, that as a
material amend in respect of the wrong the United States should
pay the sum of $25,ooo to His Majesty's Canadian Government;
and they recommend accordingly." (Whiteman, page 157.)

It is noted that in the Imbrie Case, against Persia, the United
States took a similar view (see \Vhiteman, Vol. 1, page 732).
Courts have long recognized that there are situations in \\,hich
no showing of monetary loss need be made to justify a monetary
award. The relevance of the domestic Anglo-American law on
Defamation is an example. As is well known, injury to reputation
docs not need to be provecl to the penny and juries and courts are
permitted to award substantial damages without a showing of
actual injury. The damage inflicted on the United States and the
American people is obviously greater than the damage toan individ-
ual, especially when the guilty party is a government rather than
an individual.
The case presented in this Memorial is not simply a civil problcm
of claims of American nationals. The whole ~robiem of the freedom
of the air and the safety of the nationals oi al1governments from

murderous attack by the government of overflown terrain is involv-
ed. The problem presented transcends the individual 4X-AKC.
The principle that a govcrnment is liable for its torts, both for
those committed against the nationals of other governments aiid
those against other governments themselves, is clear. The subject is
discussed, for example, in Hackworth's Digest of International Law,
Volume V, Section 486. There is cited among other authorities thc
judgment of the Permanent Court of International Justice (1 Hud-
son, World Court Reports, page 589) in the ChorzdwFactory Case,
decided July 26,. 1927. There the German Government sought
damages from the Polish Govcrnment for the seizurc of German
properties in violation of a commitment in a convention known as
the Geneva Convention. The Court said (page 602) :

"It isa principleof international lawthat the breach ofan engage-
ment involves an obligation to make reparation in an adequate
form. Reuaration therefore is the indisuensable cornulement of a
failureto'apply a convention and thereAisno necessiiy for this to
be stated in the convention itself."
The failure of the Bulgarian Government to comply with its

promises to make compensation to the United States for injury to
the United States and its nationals, together with the injuries to
the United States nationals and the well-recognized tortious char- 248 MEMORIAL OF U.S.A. (2 XII 58)

acter of a false statement as to its intentions to make the compen-
sation, to punish the guilty and to prevent a recurrence, are in
international law to be resolved by "reparation in an adequate
form". In addition to the breach of contract involved there is thus
also the element of false representation as to its state of mind and
intention, which at least aggravates the wrong even if it did not
by itself constitute a cause of action on behalf of the United States
against the Bulgarian Government.
The wrong complained of is justiciable and legal and is therefore
not to be confused with wrongs which are merely political in

character (see Lauterpacht, Ofy5elz-eim'sInternational Law, 7th edi-
tion, Volume II, pages 4 and 5).
In view of the limitations on tort and criminal punishment
powers of this Court, an additional judgment for $~oo,ooo to the
United States Government on account of the elements of fraud,
deceit, and wilful and premeditated killing of American nationals
would be proper, in addition to the awards of monetary damages
for the account of the next of kin of the American passengers.

3. The facts recited make it also clear that any judgment by
this Court must include an order for the punishment by the Bulgarian
Government, in accordance with its solemn promise to the United
States Government and other Governments, of the individuals,
subject to its jurisdiction, who ordered and participated in the
killing. The case must remain open until adeqnate proof has been
received by the Court and the United States Agent that payment
has been made as ordered, that the punishment has in fact been
meted out in adequate character, and that appropriate steps have

been taken to prevent a recurrence. These steps by the Bulgarian
Government must include a public denunciation by it to its citizens
and military of any orders to shoot overflying innocent civilian
aircraft, at least insuch a way as to imperil the occupants. The
punishment of the responsible individuals must be in accordance
with the law applicable to murder and the individuals covered
should include al1 the guilty, regardless of rank.

4. The United States Government is also entitled to a judgment
from the Court for the costs of this proceeding. The United States
Government has been forced into expensive litigation, including
complicated and expensive investigations of fact caused by the
refusal of the Bulgarian Government to provide information to
which the United States Government is entitled. The amount
thereof will not be known until the proceeding is complete. The
United States Government submits that:

(a) Its costs in this case, which it is prepared to support in detail,
if properly requested, should be fixed at not less than $~oo,ooo.
(b) Its further costs beyond $IOO,OOO should be aiiowed at the
. end of this proceeding. MEMORIAL OF U.S.A. (2 XII 58)

PART V

RULINGS AS TO THE EVIDENCE

The Government of the United States of America believes that
the foregoing facts, supplemented by the facts adduced in further
testimony before this Court, or as this Court may direct, and the
foregoing statements of law compel certain conclusions as to the
evidence. Pursuant to the Statute and Rules of this Court, for
example, Articles 49 and 54 of the Rules, and Article 49 of the
Statute of the Court, and the practice of this Court, the United
States Govemment requests the Court to order as follows:

I. The Bulgarian Govemment must make available to the
United States Government the evidence. data, documents, and
other material in the Bulgarian Government's possession or avail-
able to it relating to the flight 4X-AKC, on July 27, 1955, its
observation and its treatment bv Bulea.,an authorities. and the
treatmt:iit of the pnsseiigt!rsaCrc\r,ns \vcll 3s the fult%ncnt by
the Hulgarian Go\-eriinii.nt of the proniises madby itin irs note
to tlir Legatioof Sivitzerland:~tSofiaon rlugust 4, 1yj5.

2. In the alternative, as respects any material evidence, the
Bulgarian Govemment shall permit representatives of the United
States Government to examine such material under appropriate
guarantees as the Court may provide. Al1such evidence must be
the original or best available legal evidence.
3. Should the Bulgarian Government not comply with any of the
foregoing directions the United States has the right to proceed

hereafter on the premise that such evidence so requested but not
made available would be unfavorable tothe Bulgarian Government.
In that case the United States Government may consider and
contend, whenever and wherever appropriate, that the Bulgarian
Government should be estopped (a) from producing evidence in its
behalf relating to the evidence thus concealed, an(b)from contest-
ing the admissibility or value of secondary evidence relating thereto
which the United States Govemment may proffer.
The United States Government calls attention in this regard to
the principles established, among other cases, in the Corfu Channel
Case by this Court (International Court of Justice Refiorts, 1949.
page 18) which is also cited in the United Kingdom Memorial,
paragraph 51.

4. In this case the United States Government reserves the right
to contend that such failnre is in itsefirima faciea confession of
guit on the part of the Bulgarian Govemment of the charges
against it made in the Application and in this Memorial of the
United States Govemment.
18250 AIEXORIALOF U.S.A. (2 XII 58)

5. Specifically, the following is a list of the material nhich
should be made available to the United States Govemment, and
to the Court, at the latest in the Bulgarian Govemment's Counter-
hlemorial.
(a) The full report of the Bulgarian official inquiry commission,

allegedly consisting of the Cabinet officers,and of al1other Bulgarian
inquiry commissions, of the incident of July27.1955 .here should
be included di reports by subordinate and advisory investigators
and review officials.
(b) The original, or a photocopy, of the manifest and other
passenger identification documents found on board or in the area
of the crash of the aircraft during examination of its contents on
the ground near Petrich if more documentary legal evidence of the
presence of any of the American nationals on board the 4X-AKC
is desired, or such presence contested. This shall be in addition to
the production of ail copies of other documents. including mani-

fests, fight plans, working charts and radio logs found at the crash
site near Petrich.
(cj Who, by narne, position and rank, made the determination
that the El Al aircraft 4X-AKC could not be identified after cross-
ing the Bulgarian frontier;(2)when and under what circumstances
the determination was made; (3) what instructions were given to
the fighter pilots, and by whom, by name. position and rank, on
dispatch from the aidteld and during flight in the air.
(d) A full account of the tracking of the 4X-AKC by al1 radar
stations and ground observers situated in Bulgaria from Belgrade
through Tm and then the passage farther into and within Bulgaria.

This should include the movements of the Bulgarian fighters. The
account should be supported by all the logs, observation reports,
communications reports and memoranda which bear on these
airplane movements, both of and with the 4X-AKC and the Bul-
garian fighters, and of ground observers and anti-aircraft units.
They should cover the period from the first observation of the 4X-
AKC within Yugoslavia and the dispatch of the fighter planes to
intercept the 4X-AKC, however identified or unidentified, until and
including the filing of the reports of their pilots upon retuming to
base.
(e) There should be included, therefore, with respect to the

incident, the names and ranks of the fighter pilots, copies of their
orders with regard to this incident and, if oral, the written embodi-
ment of the full terms of those orders, the names and ranks of the
radar observers and ground observers, the names and ranks of the
ground controllers, the name and rank of each commandant of the
air fields to which they belonged and to which they reported, the
names and ranks of the senior supervisors, up to and including the
highest rank of those participating, including advisers, or however
denominated, both of Bulgarian and other nationality. hIEMORIALOF U.S.A. (2 XII 58) 2s1
(/) Gun camera film of al1the participating fighters, ail available
logs and reports of radio and radar information covering conver-
sations with 4X-AKC by CW and voice radio with the air traffic
control in the area of flight, with dl the military air defense units
participatiug and al1other participating Bulgarian aircraft.

(g) The full content of al1 communications between the inter-
cepting fighters and 4X-AKC including those which, in the opinion
of the Bulgarian Government, constituted "warnings", giving in
detail the name of the individuai who delivered each "warning"
and the specific recital under oath of aii the surrounding circum-
stances by the individuals involved on the Bulgarian side.

(h) The name of the air field, if any, to which the Bulgarian
fighters attempted to direct the 4X-AKC to land, if they did so,
and liow this attempt was accomplished; if they did not do so, the
names of the available air fields on which the 4X-AKC could have
landed on its own motion in the conditions of the flight.
(i) AU orders outstanding on July 27, 1955, binding upon Anti-

Air nefense personnel of every rank, aircraft as well as ground,
relating to the treatment of unauthorized overflying civil aircraft,
with particular reference to shooting or destruction.
(1) Without regard to the foregoing, there should be specifically
included aU CW and voice communications between 4X-AKC and
civil and military ground control authoritiesprior to the crash and
after the 4X-AKC entered Bulgaria; the fuii radar coverage report
of the entire incident; al1radio communications of the 4X-AKC in
the air that the Bulgarian Govemment possesses, together with
the names of di the Bulgarian witnesses and actors involved,
whether directed toand from Bulgaria or any other place, including
Israel; the conversations and other communications of 4X-AKC

with the ground in Bulgaria and the 4X-AKC with the fighter planes
pursuing it; and the exact venfied conversation of the fighters and
the ground control with the 4X-AKC.
(k) An account of the paymeut of money, the grant of leave, the
promotion or change of status for the personnel of the Anti-Air
Defense personnel and particularly the pilots, radar operators and
ground observers and ground controllers who participated in the
incident of July 27, 1955. ending with the crash of 4X-AKC. This
statement should be made particularly with reference to the pro-
motion of any of the pilots of the fighters who attacked the 4X-AKC
and the award to them of cash, or the equivdent, or of decorations,
or citations of ment, on or after Jul27, 1955. PART VI

SUBMISSIONS

The Government of the United States of America believes that
the foregoing facts, supplemented by such facts as may be adduced
infurther testimony before this Court, and the foregoing statements
of law, supplemented by such other statements of law as may be
hereinafter made, compel the following suhmissions, and the Court

is asked to adjudge and declare the following:
I. That on July 27, 1955, responsible authorities of the Bulga-
rian Government, in violation of international law, wantonly.and
wilfully killed nine innocent American passengers while they were
in the course of flight in a scheduled international civil airliner flying
over Bulgaria, who had done nothing to provoke or justify such
killing, under circumstances of innocent flight described above.
The names of these Americans are given in this l\lemorial and
in Annex 3 to the Application instituting these proceedings.
2. That as a direct effect of the killing of the aforenamed Ameri-

can nationals, the claimants, also American nationals, whose
names are listed in the same Annex, suffered a total damage of
$257,875 representing pecuniary losses and other damages directly
attributable to the act of the Bulgarian authorities. The Govern-
ment of Bulgaria is obligated under international law to pay this
sum to the United States Govemment.
The United States does not believe it necessary to break down
this figure further; the breakdown is sufficiently given in the
aforesaid Annex to the Application.
3. That the Bulgarian Government obligated itself, under inter-

national law, and is now obligated, to pay to the United States
Government the sum of $257,875by virtue as well of the Bulgarian
Government's communication of August 4, 1955. transmitted
through the intermediation of the Legation of Switzerland at Sofia
(Annex 2 to the Application); and that by its repudiation of this
promise, as evidenced by its conduct and by its communication to
the SwissGovemment, contained in the communication of the Swiss
Government to the United States Government of August 8, 1957
(Annex 4 to the Application), the Bulgarian Government became
liable to the United States Government for a breach of an inter-
national obligation, within the meaning of Article 36 (2) of the
Statute of the Court, requiring the Bulgarian Government to pay
to the United States Government the aforesaid sum with interest.

4.That in representing to the United States Government and
to the world, by its Note No. 42803 to the Legation of Switzerland
at Sofia, and through other forms, as set forth hereabove, that it
would "cause to be identified and punished those guilty of causing MEMORIAL OF U.S.A. (2 XII 58) 253
the catastrophe" and "take all necessary steps to insure that snch
catastrophesare not repeated on Bulgarian territory", the Bulgarian

Government made representations npon which the United States
Government and other governments, members of the United
Nations, were entitled to rely in their diplomatic treatment of
Bulgaria, and particularly with respect to its application for mem-
bership in the United Nations.
5. That in making the foregoing representations the Bulgarian
Government had no intention of complying with them and made
them knowing them to be false and untruthful; and that they were
made with the intention that they shonld be relied upon to the

benefit of Bulgaria and to the detriment of the United States
Govemment, as well as other governments, and that these represen-
tations were material.
In the alternative, that the making of the foregoing false represen-
tations aggravates the wrongs committed by the Bulgarian Govern-
ment against the United States Government specified in the fore-
going submissions, I to 4 inclusive, and subjects the Bulgarian
Government to the duty to make additional amends.

6. That the Bulgarian Government has failed, and continues to
fail, to fulfil any of its obligations in this matter, undertaken by it
in its various diplomatic notes and other public representations,
such as the note of August 4,1955 (Annex 2 tothe Application), and
has therehy, as well as by its falsc representations, which aggravate
and exacerbate the obligation, become liable to the United States
Government hoth for the damages sought in the Application and
for other ameiids and reparations, which should be set at $IOO,OOO.

7. That the Court shonld adjudge and declare that the unlawfiil
and deceitful action and the breaches of contractual obligation
recited above constitute delicts for which the Bulgarian Govern-
ment is liable to the United States Government under international
law, and that the nature and extent of the reparations to be made
for these hreaches of international obligation shall, in addition to
the $~oo,ooofixed in the preceding section, include the payment of
the aforesaid sum of $257,875 plus interest from July 27, 1955. at
six per cent per annum.

8. That the Court shall continue to be seized of this proceeding
until the Bulgarian Government has submitted proof to the Court
(a) of the payment in full of the aforesaid sum of $257,875, with
interest as aforesaid, and the additionalsum of $~oo,ooo,and costs
of the proceeding by payment to the United States or to the Regis-
trar of the Court for the United States; (b) of the punishment of the
individuals responsible for the delicts and crimes complained of,
namely :
(i) the two pilots of the fighter aircraft who killed the passengers

of the El Al plane on July 27, 1955, near Petrich;254 iilE&lORIAL OF U.S.A. (2 XII 58)
(ii) the ground controllers who issued the directions for the

kiUing ;
(iii) the advisers who supervised the giving of the directions;
(iv) al1 authorities of the Bulgarian Government who know-
ingly ordered or permitted the killings.
The identification of these persons should be disclosed to the
Court and ta the United States Government by the Bulganan

Government together with the nature of the punishment inflicted,
which should be on the basis of charges not less strict than those
provided by Bulgarian law for intentional homicide.
9. That the Court should issue such other and further awards
and orders to effectuate its determinations, including an award of
costs of not less than $~oo,ooo (Statute, Article 64, and Rules,
Articles 74.1 and 77).
IO. That if the Bulgarian Government shall fail to comply with

any orders of this Court as to production of evidence and witnesses
(including orders ta supply the report of the Inquiry Commission
which investigated the incident of July 27,1955, the names of the
participants as described above (paragraph 8), and al1 the other
orders for the production of evidence and witnesses), the Court will
make the inference that the evidence or witnesses, if produced,
would be detrimental to the Bulgarian Government's position on
the issues in this case and favorable to the United States Govern-
ment's position, and will proceed on that premise in making its
judgment.

Dated this second dav of December, 1958.

(Signed) Loftus E. BECKER,
Agent for the United States
of America. Annexes tothe Mernorial otheGovernment of the
United States of America

Annex I

UNITED STATES - ISRAEL AIR AGREEMENT
[Not reproduced.SeeUnited Nations Treaty Serie212.+p.106-1271

Annex z

FOREIGN AIR CARRIER PERMIT ISSUED TO EL AL
AIRLINES LTD

[Not reprodwed]

Annex 3
EL AL ISRAEL AIRLINES SCHEDULE FROM OFFICIAL
AIRLINES GUIDE

[Not reproduced]

Annex 4

PASSPORT APPLICATION OF MRS. RACHEL AVRAM.
EXCERPT
[Nol reproduced]

Annex 5

COPY OF TICKET OF MRS.RACHEL AVRAM
[Nol reproduced]

Annex 6

AFFIDAVIT OF MENDEL AVRAM
[Not reproduced]

Annex 7
DEATH CERTIFICATE OF MRS.AVRAM
[Not reproduced]256 ANNEXES TO U.S. MEMORIAL

Annex 8
COPY OF TICKET OF MRS.ORA COHEN

[Not reproduced]

Annex g

PASSPORT APPLICATION OF MRS. ORA COHEN, EXCERPT
[Nat reproduced]

Annex IO
DEATH CERTIFICATE OF MRS.ORA COHEN

[Not reproduced]

Annex rr

AFFIDAVIT CONCERNING PURCHASE OF TICKET OF
MRS ANNA HAHN IN NEW YORK CITY

[Not reproduced]

Annex 12

PASSPORT APPLICATION OF MRS. ANNA HAHN. EXCERPT
[Not reproduced]

Annex 13

COPY OF TICKET OF MRS.ANNA HAHN

[Not reproduced]

Annex 14
DEATH CERTIFICATE OF MRS.ANNA HAHN

[Not reproduced]

Annex 15

PASSPORT APPLICATION OF MRS. MARY KATZ, EXCERPT
[Not reproduced] ANNEXES TO U.S. MEMORIAL

Annex 16

COPY OF TICKET OF MRS.MARY KATZ
[Not reproduced]

Annex 17
COPY OF TICKET OF MISS ANNE KATZ

[Not reproduced]

Annex 18

DEATH CERTIFICATE OF MRS.MARY KATZ

[Not reproduced]

Annex 19

DEATH CERTIFICATE OF MISS ANNE KATZ

[Nat reproduced]

Annex 20

PASSPORT APPLICATION OF A. M. MANN, EXCERPT
[Not reproduced]

Annex 21

COPY OF TICKET OF A. M. MANN
[Not reproduced]

Annex 22
DEATH. CERTIFICATE OF A. M. MANN

[Not reproduced]

Annex 23

COPY OF TICKET OF MISS RIVGA SACKS

[Not reproduced]258 ANNEXES TO U.S. MEMORIAL

Annex 24
COPY OF TICKET OF MISS DEBORAH SACKS

[Not reproduced]

Annex 25

COPY OF TICKET OF MRS.ANNA SACKS
[Not reproduced]

Annex z6a
PASSPORT APPLICATION OF MRS.ANNA SACKS,EXCERPT

[Not reprodnced]

Annex 266

PASSPORT APPLICATION OF MISSDEBORAH SACKS,EXCERPT
[Not reproduced]

Annex 26c
PASSPORT APPLICATION OF MISS RIVGA SACKS, EXCERPT

[Not reproduced]

Annex 27

AFFIDAVIT CONCERNINGTHE PURCHASE OF FLIGHT
TICKETS FOR RIVGA, DEBORAH, AND ANNASACKS
[Not reproducedj

Annex 28
DEATH CERTIFICATE OF MRS.ANNA SACKS

[Not reproduced]

Annex 29

DEATH CERTIFICATE OF MISS RIVGA SACKS
[Not reproduced] ANNEXES TO U.S.MEhIORIAL

Annex 30
DEATH CERTIFICATE OF MISS DEBORAH SACKS

[Nat reproduced]

Annex 31

BULGARIAN TELEGRAPH AGENCY COMMUNIQUE OF
JULY 28, 1955 (TRANSLATION FROM BULGARIAN HOME
SERVICE, JULY 28,1955, 1000GMT)

[Nat reproduced]

Annex 32

PHOTOGRAPHS OF EL AL CONSTELLATION AIRPLANES
[Nat reproduced]

Annex 33

RABOTNICHESKO DELO, No. 210, JULY 29, 1955
COMMUNIQUEOF THE BTA (BULGARIANTELEGRAPH
AGENCY)

[Not reproduced]

Annez 34

RABOTNICHESKO DELO, No. 215. AUGUST 3,1955,
COMillUNIQUE OF THE BTA (BULGARIAN TELEGRAPH
AGENCY)

[Not reproduced]

Annex 35
BULGARIAN GOVERNMENT'S ENGLISH RADIO BROADCAST

ON AUGUST 12,1955
[Not reproduced]

Annex 36

RABOTNICHESKO DELO, NO. 223, AUGUST II, 1955,
"WHO IS INTERESTED IN DISTORTING THE TRUTH?"

[Not reprodzcced] ANNEXES TO U.S. MEMORIAL
Annex 37

ANNOTATED MAP OF
YUGOSLAVIA-BULGARIA-GREECE

[Not reproduced]

Annex 38

UNITED NATIONS RECORDS-HISTORY OF BULGARIAN
COMPLAINTS OF OVERFLIGHTS
[Not reproduced]

Annex 39
UNITED NATIONS RECORDS-BULGARIAN INTERFERENCE

IN GREEK CIVIL WAR
[Not reproduced]

Annex 40

EXCERPTS OF SPEECH BY THE MINISTER OF NATIONAL
DEFENSE, GENERAL PANCHEVSKI, SEPTEMBER 23,1955

[Nof reproduced]

Annex qr

INTERNATIONAL CIVIL AVIATION ORGANIZATION'S
STATISTICS ON INTERNATIONAL AIR TRAFFIC
[Not reproduced]

Annex 42
UNITED STATES TREASURY DEPARTMENT STATISTICS

[Not reproduced]

UNlTED STATES DEPARTMENT OF JUSTICE STATISTICS
ON INTERNATIONAL TRAFFIC

[Not reproduced] ANNEXES TO U.S.MEMORIAL 261

Annex

AIR TRANSPORT ASSOCIATION STATISTICS ON AMBER IO
TRAFFIC
[Nat reproduced]

Annex 45a

BULGARIAN APPLICATIONS FOR MEMBERSHIP IN THE
UNITED NATIONS

[Nat reproduced]

Annex 45b
BULGARIAN APPLICATIONS FOR MEMBERSHIP IN THE

UNITED NATIONS-U.S. POSITION
[Nat reproduced]

Annex 46

PRECEDENTS IN AMERICAN-SOVIET INCIDENTS
A. B-zg Case of October 7, 1952

B. B-50 Case of July 29, 1953
C. B-zg Case of November 7, 1954
D. Bering Sea Case of June 23, 1955

[Nat reproduced]

Annex 47
YUGOSLAV NOTAMS ON OVERFLIGHT OF CIVIL AIRCRAFT

[Nat reprodz~ced]

Annex 48
YUGOSLAVPERMISSION FOR EL AL OVERFLIGHT JULY 1955

[Nat reproduced]

Annez 49

YUGOSLAVLOG OF 4X-AKC COMMUNICATIONSWITH THE
YUGOSLAV GROUND STATIONS
(EXTRACT FROM ANNEX 50c)

[Nat reproduced]262 ANNEXES TO U.S.MEMORI.AL
Annex 50a

UNITED STATES WEATHER OPINIONS FOR YUGOSLAVIA
AND BULGARIA, JULY 27,I9j5:UNITED STATES WEATHER
BUREAU

[Nol reproduced]

Annex job

UNITED STATES WEATHER OPINIONS FOR YUGOSLAVIA
AND BULGARIA, JULY 27, 1955:CAPTAIN OTTO JENISTA,
UNITED STATES AIR FORCE

[Not reproduced]

Annex joc

YUGOSLAV GOVERNMENT WEATHER RECONSTRUCTION
FOR JULY 27,1955

[Not reproduced]

Annex 51

BRITISH PHOTOGRAPHS OF THE AIRPLANE CRASH NEAR
PETRICH, JULY 30, 1955

[Not reproduced]

Annex 52

\VITNESSEç' STATEMENTS
A. Bulgarian Witnesses

B. Greek Witnesses
C. Yugoslav Witnesses
[Not reproduced]

Annex 53
BULGARIAN PENAL LAW ON HOMICIDE, FROM ANCEL'S

"LES CODES PENAUX EUROPÉENS"
[Nol reproduced] ANNEXES TO U.S. hIEMORIAL
Annex 54

IXTERNATIONAL CODES ON HOMICIDE
[.Vol reprodzrced]

Annex jg

LAWS OF OLERON
The Black Book of theAdmiralty, Volume II
(SirTravers Twiss Edition, 1873)

[Not reproduced]

Annex 56

EXTRACT FROM VALrN'S COMMENTAIRE DE LA MARINE

NouveauCommentaireSur L'OrdonnanceDeLa Marine, Du Mois D'Août
1681, Volume II, A La Rochelle, 1681
[Nol reproduced]

Annen 57
SOhfE ANCIENT TEXTS SUPPORTING MODERN

MARITIME LAW
[Nol reproduced]

Altnen 58
AMERICAN JURISPRUDEiVCE ON LIABILITY OF JOINT
TORTFEASORS

Iirom American Jurisprudence
[Not reproduced]

Annen 59

RESTATEMENT OF THE LAW OF TORTS ON JOINT
TORTFEASORS

From Restatementof the Law of Torts by the American Law Institute
[Nol reproduced]264 ANNEXES TO U.S. hlEhIORIAL
Annex 60

HALISBURY'S THE LAWS OF ENGLAND ON JOINT
TORTFEASORS

The Earl of Halisbury, The Laletsot England, Volume XXVII
[Not reproduced]

Annen Gr
PHOTOCOPY OF MEVORAH, COMMENTARY OhT THE LAW
OF OBLIGATIOiVS AiVD CONTRACTS

(Aiot reprodnced]

Annex 62

FULLER TEXT OF MEVORAH'S STUDY

Commentary on the Law of Obligations andContracts, Second Edition,
Fadenhecht, Printed by Herman Pole &Sons,Sofia,"3EarsStreet." 1926

[Not reprodirced]

Annex 63

COMPARATIVE LAII' ON LIABILiTY OF JOINT AND SEVERAL
TORTFEASORS

[Not re$rodi~ced]

Annex 64

1946 DIPLOMATIC INTERCHANGE RELATING TO FLIGHT OF
AhlERICAN PLANES OVER YUGOSLAV TERRITORY
[Not reproduced]

Annex Gj
BULGARIAN DECREES AND REGULATIONS REGARDING
OVERFLIGHT OF AIRCRAFT

[Not reproduced]