Form and Substance in the Law of Counterinsurgency Damages

20 Pages Posted: 25 Feb 2008 Last revised: 5 Sep 2008

Date Written: February 25, 2008

Abstract

American-style damages payments have become one of the ways the twenty-first century U.S. military attempts to win the hearts and minds of civilians in war zones. In places like Afghanistan and Iraq, many American judge advocates are doing the work of personal injury lawyers and insurance company claims adjusters: using cash to settle civilian claims against the armed forces. In many ways, the use of damages law in the military campaign against terrorism takes part in an old American tradition of insisting that law is in the service of strategy. But a close examination of the law of foreign claims raises a deeper problem for the use of law as a non-lethal weapon in counterinsurgency contexts. Call it the dilemma of law and strategy. In the law of foreign claims, as the field is known, the relationship between legality and strategic advantage is often inverse. The more law-like the claims payment system, the less tactical flexibility soldiers have to deploy money as a weapon tailored to the terrain of the battlefield. The more flexible it is, the less law-like it tends to be. Commanders and claims officers in Afghanistan and Iraq seem to understand this much better than the official doctrine suggests. But in these theaters, the opposite problem has begun to come to the fore. Unconstrained tactical flexibility produces inconsistent determinations, and lawless inconsistency may be as strategically harmful as overly legalistic rigidity. The nub of the law-strategy dilemma is that legality is both a threat and an imperative.

Keywords: Torts, Foreign Claims Act, counterinsurgency, damages, collateral damage, civilian, military, army, armed forces,

JEL Classification: K00, K13, K33, K10, K19

Suggested Citation

Witt, John Fabian, Form and Substance in the Law of Counterinsurgency Damages (February 25, 2008). Loyola of Los Angeles Law Review, Forthcoming, Columbia Public Law Research Paper No. 08-181, Available at SSRN: https://ssrn.com/abstract=1096587

John Fabian Witt (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4944 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
180
Abstract Views
1,227
Rank
301,996
PlumX Metrics