International Conflict and War ♦ Online 64 Va. J. Int’l L. Online 1 (2023)

Frameworks for Accountability: How Domestic Tort Law Can Inform the Development of International Law of State Responsibility in Armed Conflicts

HAIM ABRAHAM

The development of international law of state responsibility in warfare thus far has either implicitly relied on tort law and theory as a means of comprehending elements of liability, or explicitly suggested that reparations in international law could follow domestic tort law in form and substance. In this Article, I argue that both approaches raise concerns about coherence and clarity and suggest that a Contextual Reliance Approach is required. Accordingly, the principles and concepts underlying domestic tort law can be adapted and applied to international law of state responsibility, but the unique features of warfare must be accounted for. In doing so, the Contextual Reliance Approach crystalizes the boundaries and unique functions of tort law and international law of state responsibility.

By deploying the Contextual Reliance Approach, I clarify four main contested doctrinal and theoretical issues in the field of international law of state responsibility during warfare. First, the right to reparations under international law should only be extended to states. Second, duty to make reparations should only arise when a loss is inflicted by infringing the law of war. Third, fully correcting wrongs requires distinguishing between just and unjust wars, imposing compensatory damages for the former but allowing additional aggravated damages for the latter, while maintaining a prohibition on punitive damages. Fourth, global damages can be awarded, but only for losses that cannot be quantified based on market value.