Tort Liability for Belligerent Wrongs

39(4) Oxford Journal of Legal Studies 808-833 (2019)

39 Pages Posted: 4 Oct 2019 Last revised: 27 Oct 2022

Date Written: July 19, 2019

Abstract

Most legal systems deny civilians a right to compensation for losses they sustain during warfare. Arguments for recognising such a right are usually divorced, to various degrees, from the moral and legal underpinnings of the notion of inflicting a wrongful loss under either international humanitarian law or domestic tort law. My aim in this article is to advance a novel account of states’ tortious liability for belligerent wrongdoing, drawing on both international humanitarian law and corrective justice approaches to domestic tort law. Structuring my account on both frameworks, I argue that some of the losses that states inflict during war are private law wrongs that establish a claim of compensation in tort. Only in cases where the in bello principles are observed can losses to person and property be justified and non-wrongful. Otherwise, they constitute wrongs, which those who inflict them have duties of corrective justice to repair.

Keywords: tort liability, tort law, warfare, war, international humanitarian law, corrective justice, compensation

Suggested Citation

Abraham, Haim, Tort Liability for Belligerent Wrongs (July 19, 2019). 39(4) Oxford Journal of Legal Studies 808-833 (2019), Available at SSRN: https://ssrn.com/abstract=3458944

Haim Abraham (Contact Author)

UCL Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

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