War Torts

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.

The lack of legal remedy for civilian harms is a holdover of an earlier international legal order, where individual rights weren’t recognized. The creation of war crimes was a first step towards greater accountability for civilian harms in armed conflict; it’s time to take the next one.

This Article proposes developing an international “war torts” regime to hold states strictly liable for all civilian harms. 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 state liability 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 harms. Collectively, a war torts regime would further the law of armed conflict’s foundational purpose of minimizing needless civilian suffering.