Tort Liability for Belligerent Wrongs

Research output: Contribution to journalReview articlepeer-review

Abstract

Most legal systems deny civilians a right to compensation for losses they sustain during belligerent activities. Arguments for recognising such a right are usually divorced, to various degrees, from the moral and legal underpinnings of the notion of inflicting a wrongful loss under either international humanitarian law or domestic tort law. My aim in this article is to advance a novel account of states' tortious liability for belligerent wrongdoing, drawing on both international humanitarian law and corrective justice approaches to domestic tort law. Structuring my account on both frameworks, I argue that some of the losses that states inflict during war are private law wrongs that establish a claim of compensation in tort. Only in cases where the in bello principles are observed can losses to person and property be justified and non-wrongful. Otherwise, they constitute wrongs, which those who inflict them have duties of corrective justice to repair.

Original languageEnglish
Pages (from-to)808-833
Number of pages26
JournalOxford Journal of Legal Studies
Volume39
Issue number4
DOIs
StatePublished - 1 Dec 2019
Externally publishedYes

Bibliographical note

Publisher Copyright:
© 2019 The Author(s). Published by Oxford University Press. All rights reserved.

Keywords

  • compensation
  • corrective justice
  • international humanitarian law
  • tort liability
  • warfare

ASJC Scopus subject areas

  • Law

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