Tort Liability in War

Wednesday, December 15, 2021 at 14:15-15:45

Recording is available here

The event was also streamed live on Facebook 

Abstract

The legal community’s conceptualization of war, the legal restraints on the use of force, and accountability for combatant activities, have vastly changed throughout history. Warfare is no longer viewed as a time in which ‘the laws fall silent’, but rather it is regulated by a dedicated body of law which aims to protect civilians and minimize human suffering in a time of great uncertainty and violence. War crimes can be prosecuted and punished, and if combatants do not comply with their state’s rules of engagement, they can face administrative and criminal proceedings.
Yet, despite this progress, civilians’ ability to stand on their rights is still hampered by special immunities that prevent them from directly claiming compensation for injuries inflicted upon them during warfare. In this presentation, I will present my current research project, in which I establish that the current legal regime of special immunity from tort liability is not morally and legally warranted or defendable. I demonstrate that even during war individuals enjoy certain protections of their private law rights, and a wrongful violation of these rights warrants an effective remedy. Only in cases where the laws that govern the conduct of war are observed can losses be justified and considered non-wrongful. Otherwise, they constitute tortious wrongs, for which the state that inflicted them has moral and legal duties to repair. I maintain that existing tort law doctrines can be used to address the infliction of wrongful losses, and that identifying what amounts to an infliction of a wrongful loss in the context of warfare is informed by the laws of war.

Dr. Haim Abraham is a Lecturer at the University of Essex, School of Law (and starting January 2022, at UCL Faculty of Laws). He holds a Doctor of Juridical Science degree from the University of Toronto, a Master of Law degree from the University of Cambridge, and a Bachelor of Law degree combined with the Interdisciplinary Honours Program in the Humanities from The Hebrew University of Jerusalem, where he was on the editorial board of the Israel Law Review. Before returning to academia, Dr. Abraham served as a Law Clerk at the Israel State Attorney Office, Civil Department. Dr. Abraham's research and teaching interests include tort law, private law theory, liability of public actors and authorities, the intersections of private and public law, and gender and sexuality law.