Tort Liability in War

Rethinking States' Immunity

During armed conflicts, civilians often sustain significant losses to life, body, and property. Yet, their ability to obtain a remedy for their injuries is limited. Under international law, states are not obligated to compensate private individuals for inflictions of losses during war, and they enjoy a special immunity from domestic tort liability, known as the ‘combatant activities exception’. This exception means that no matter what kind of a wrong states might inflict on civilians while engaging in warfare, no tort liability can be imposed on them by their own courts.

In this project, Dr Haim Abraham examines the current legal regime and seeks to answer a fundamental conceptual question: could and should tort liability be imposed on states, and compensation be awarded to civilians, for losses inflicted during combat? Relying on rights-based theories of tort law, international humanitarian law, and a substantive rule of law approach, Dr Abraham establishes that the current legal reality, in which states are immune from compensating civilians who suffer losses as a result of their actions during wartime, is neither legally nor morally defensible. He then offers a novel account of the limits of tort liability that is compatible with the distinctive features of warfare, which is supported by a comparative analysis of tort law and the combatant activities exception in Australia, Canada, England and Wales, Israel, and the United States.

This project is supported by an international open-call grant from the Minerva Center for the Rule of Law under Extreme Conditions.