War Torts

80 Pages Posted: 25 Feb 2022 Last revised: 13 Aug 2023

See all articles by Rebecca Crootof

Rebecca Crootof

University of Richmond School of Law; Yale University - Yale Information Society Project

Date Written: February 21, 2022

Abstract

The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. The only accountability mechanisms for civilian harms are limited to unlawful acts: individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt.

This Article proposes developing an international “war torts” regime, which would require states to pay for both lawful and unlawful acts in armed conflict that cause civilian harm. Just as tort and criminal law coexist and complement each other in domestic legal regimes, war torts and war crimes would overlap but serve different aims. Establishing war torts and creating a route to a remedy would not only increase the likelihood that victims would receive compensation, it would also create much-needed incentives for states to mitigate or reduce civilian harm. Ultimately, a war torts regime would further the law of armed conflict’s foundational purpose of minimizing needless civilian suffering.

Suggested Citation

Crootof, Rebecca, War Torts (February 21, 2022). New York University Law Review, Vol. 97, 2022, Available at SSRN: https://ssrn.com/abstract=4040075 or http://dx.doi.org/10.2139/ssrn.4040075

Rebecca Crootof (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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