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Tort Liability, Combatant Activities, and the Question of Over-Deterrence

Abraham, H; (2021) Tort Liability, Combatant Activities, and the Question of Over-Deterrence. Law & Social Inquiry 10.1017/lsi.2021.66. (In press). Green open access

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Immunity from tort liability for losses that are inflicted during warfare is often justified by a supposedly intuitive concern: without immunity, states and combatants will be over-deterred from engaging in combat. In this article, I test this common perception using three frameworks. First, I theoretically analyze the impact of tort liability on relevant state actors’ incentives to engage in warfare. This analysis suggests that tort law is likely to under-deter state actors in relation to their decisions on whether and how to conduct hostilities. Second, I test this conclusion through an original mixed-methods exploratory research, using Israel as a test case. My findings reveal that while tort liability under-deters state actors from engaging in warfare, it can prompt them to implement regulatory measures to minimize the state’s liability. Third, I offer a legal history analysis, exploring why Israel established an immunity from tort liability for losses it inflicts during combat in 1951, and why and how this immunity has expanded since. I show that as the Israel-Palestine conflict prolonged and intensified, state actors began viewing Palestinians’ tort claims as a civilian means of warfare and immunity from liability as the weapon needed for defending Israel’s interests.

Type: Article
Title: Tort Liability, Combatant Activities, and the Question of Over-Deterrence
Open access status: An open access version is available from UCL Discovery
DOI: 10.1017/lsi.2021.66
Publisher version: https://doi.org/10.1017/lsi.2021.66
Language: English
Additional information: This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions.
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10141169
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