Tort Liability for Belligerent Wrongs

Abstract

Most legal systems deny civilians a right to compensation for losses they sustain during belligerent activities. 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.

Is there a new case for reparations?

“…No information of the price and exchange rate assumptions are provided by the State Department. 12 See Abraham (2019) and C. Evans (2012). It is doubtful that such proposals will come to fruition soon.…”

“…12 12 See Abraham (2019) and C. Evans (2012). It is doubtful that such proposals will come to fruition soon.…”

Tort Law and State Accountability for Overseas Violations of International Human Rights Law and International Humanitarian Law: The UK Perspective

“…78 Similarly, Abraham has recently argued that some of the losses that States inflict during war are private law wrongs that establish a claim of compensation in tort; where the in bello principles are not observed, losses to person and property constitute wrongs, which those who inflict them have duties of corrective justice to repair. 79 If tort law can lead to a remedy for a violation of international human rights law or international humanitarian law, it can also lead to a remedy for an overseas violation of this kind. Unlike international human rights law treaties, tort law is not of territorial application and there are well-developed rules of private international law which allow courts to assume jurisdiction over, and determine the law applicable to, foreign torts, even if such torts are committed in the course of exercise of public power.…”