Collateral Damages: Domestic Monetary Compensation for Civilians in Asymmetric Conflict

Abstract

The armed conflicts of the twenty-first century, which often take place among civilian populations rather than on traditional battlefields, push states to acknowledge and rectify the resulting harm to foreign civilians. In particular, asymmetric conflicts, which involve confronting non-state actors within civilian populations, tend to cause more of what has come to be known as ‘collateral damage.’ Such harm to civilians can be inflicted, for instance, in a car accident caused by security forces, drone attack, or riot control efforts. How should these losses be addressed? This Article examines two competing models. The U.S. military provides compensation to civilians injured by its activity in Iraq and Afghanistan through a military-run program, governed by the Foreign Claims Act and condolence payments. In contrast, Israel enables non-citizen Palestinians injured by Israeli military actions to bring tort lawsuits before Israeli civil courts. Notwithstanding differences between these two conflicts, both entail military forces engaging with civilians while assuming quasi-military or policing roles. Yet, scholars have not yet juxtaposed the distinct compensation mechanisms applied in each conflict, vis-à-vis the goals of monetary damages under tort law. This Article seeks to fill this gap. Drawing on tort theory, social psychology, and socio-legal studies, the Article examines the structure of domestic conflict compensation programs. It utilizes data from public records, interviews with relevant stakeholders, NGO reports, and Freedom of Information Act requests to compare the American and Israeli compensation paradigms. Through this analysis, the Article offers guidelines for designing compensation programs which address both government accountability and victims’ needs, to effectively redress the harm modern-day conflict causes to civilians.