Tort Liability, Combatant Activities, and the Question of Over-Deterrence

65 Pages Posted: 5 Jan 2022 Last revised: 10 May 2022

Date Written: December 13, 2021

Abstract

Immunity from tort liability for losses that are inflicted during warfare is often justified by a supposedly intuitive concern: without immunity, states and combatants will be over-deterred from engaging in combat. In this article, I test this common perception using three frameworks. First, I theoretically analyze the impact of tort liability on relevant state actors’ incentives to engage in warfare. This analysis suggests that tort law is likely to under-deter state actors in relation to their decisions on whether and how to conduct hostilities. Second, I test this conclusion through an original mixed-methods exploratory research, using Israel as a test case. My findings reveal that while tort liability under-deters state actors from engaging in warfare, it can prompt them to implement regulatory measures to minimize the state’s liability. Third, I offer a legal history analysis, exploring why Israel established an immunity from tort liability for losses it inflicts during combat in 1951, and why and how this immunity has expanded since. I show that as the Israel-Palestine conflict prolonged and intensified, state actors began viewing Palestinians’ tort claims as a civilian means of warfare and immunity from liability as the weapon needed for defending Israel’s interests.

Keywords: tort law, deterrence, warfare, combat, combatants

Suggested Citation

Abraham, Haim, Tort Liability, Combatant Activities, and the Question of Over-Deterrence (December 13, 2021). Law and Social Inquiry 2021, Faculty of Laws University College London Law Research Paper No. 1/2022, Available at SSRN: https://ssrn.com/abstract=4000631

Haim Abraham (Contact Author)

UCL Faculty of Laws ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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