International Conflict and War ♦ Article 63 Va. J. Int’l L. 319 (2023)

Implementing War Torts

REBECCA CROOTOF

Under international law, no entity is accountable for lawful acts in war that cause harm, and accountability mechanisms for unlawful acts (like war crimes) rarely create a right to compensation for individual victims. Accordingly, states now regularly create bespoke institutions, like the proposed International Claims Commission for Ukraine, to resolve mass claims associated with international crises. While helpful for specific and politically popular populations, these one-off institutions have limited jurisdiction and thus limited effect. Creating an international “war torts” regime—which would establish a route to compensation for civilians harmed in armed conflict—would better address this accountability gap for all wartime victims.

This Article is the first attempt to map out the questions and considerations that must be navigated to construct a war torts regime. With the overarching aim of increasing the likelihood of victim compensation, it considers (1) the respective benefits of international tribunals, claims commissions, victims’ funds, hybrid systems, and domestic courts as institutional homes; (2) appropriate claimants and defendants; and (3) the elements of a war torts claim, including the necessary level and type of harm, the preferable liability and causation standards, possible substantive and procedural affirmative defenses, and potential remedies.

Domestic law has long recognized that justice often requires a tort remedy; it is past time for international law to do so as well. By describing how to begin implementing a new war torts regime to complement the law of state responsibility and international criminal law, this Article provides a blueprint for building a comprehensive accountability legal regime for all civilian harms in armed conflict.