2022 Ukraine Crisis

The Case for War Torts—for Ukraine and Beyond

By Rebecca Crootof
Wednesday, December 14, 2022, 8:01 AM

In May 2022, President Volodymyr Zelenskyy announced Ukraine’s intention “to ensure that Russia compensates in one way or another for everything it has destroyed in Ukraine. Every burned house. Every ruined school, ruined hospital. Each blown up house of culture and infrastructure facility. Every destroyed enterprise. Every shut down business, every hryvnia lost by people, enterprises, communities and the state.” In November, he reemphasized the import of compensation: Zelenskyy stated that he would meet to discuss peace negotiations only if Russia agreed to five preconditions, one of which was paying “compensation for all war damage.”

Zelenskyy’s plea is one for basic justice. He must regularly reiterate it, however, because of the inadequacy of current accountability mechanisms for wartime civilian harms. As I observe in a recent law review article, under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. To the extent they exist, accountability mechanisms are limited to unlawful acts: People who willfully commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts are liable under the law of state responsibility. But neither international criminal law nor the law of state responsibility includes a right to compensation for individual victims. Moreover, no entity is liable for lawful but unintended harmful acts, regardless of how many or how horrifically civilians are hurt. 

Creating a permanent “war torts” institution—which would establish a route to compensation for civilians harmed in all armed conflicts—would both ensure that there are consequences for Russia’s actions now and minimize civilian harm in the future.

No Individualized Remedies for Civilian Victims of Unlawful Wartime Acts

The law of state responsibility and international criminal law—the two main existing international accountability mechanisms for unlawful wartime acts—rarely create a right to individualized compensation for victims.

The law of state responsibility requires states that commit internationally wrongful acts to make reparations—but in a regime where states are the relevant legal actors, payments are claimed by and made to the victim state. Individuals rarely receive compensation for their harms. First, there are a host of political, economic, and other reasons why a state might be unwilling to bring a claim against another state, especially following an armed conflict. In fact, states regularly sign away their nationals’ rights to bring claims in peace treaties. Second, while a state that does pursue and receive reparations could theoretically disperse the funds to individual victims, it is not expected nor obligated to do so—and there are many times when a state’s interests do not correspond with those of harmed civilians, especially if they hail from politically marginalized groups. Third, even when a state is interested in redressing its civilians’ harm, doing so is usually conceptualized as using reparative funds for the general good. Certainly, Ukrainian schools, hospitals, and other infrastructure desperately need investment and improvement, but community rebuilding does little to help those struggling to absorb devastating and unevenly distributed personal losses. A comprehensive reparation regime would address both collective and individual harms.

International criminal law holds individuals liable for war crimes. It is not designed nor intended to create a means of compensating victims. Victims generally have no say in whether a charge is filed, investigated, or prosecuted. And even if there is a war crimes conviction, it is usually punished with incarceration—there is no right to victim compensation, let alone individualized compensation. As International Criminal Court (ICC) Judges Christine Van den Wyngaert and Howard Morrison have noted,

It is emphatically not the responsibility of the International Criminal Court to ensure compensation for all those who suffer harm as a result of international crimes. We do not have the mandate, let alone the capacity and the resources, to provide this to all potential victims in the cases and situations within our jurisdiction.

Nonetheless, in the absence of other compensatory mechanisms, victims and their advocates often look to international criminal law to provide some route to reparation. But in the few situations where international criminal institutions have awarded damages to victims, they have tended to award collective (rather than individualized) and symbolic (rather than compensatory) amounts. Of the three cases where the ICC has ordered reparations, only in Al Mahdi did it require individual, compensatory payments—the others provided collective or symbolic awards. Further, while Al Mahdi did demonstrate that it is institutionally possible to provide reparations to discrete wartime victims (thus far, payments have been made to 740 beneficiaries), it also highlighted another problem with doing so through criminal law: War criminals generally do not have the funds to provide compensation for the damage they cause. In Al Mahdi, the defendant’s lack of resources necessitated the intervention of the (largely volunteer funded) ICC Trust Fund for Victims to cover the costs of the damages. 

No Remedies for Civilian Victims of Lawful Wartime Acts

While the lack of individualized remedies under the law of state responsibility and international criminal law is troubling, there’s yet a larger issue: No entity is accountable for the myriad harmful but lawful wartime acts.

International humanitarian law often prohibits intentionally harming civilians but permits their incidental harm. For example, intentionally targeting protected individuals and objects (like civilians, medical infrastructure, and cultural property) is forbidden, but all unlawful targets may become incidental “collateral damage” of a strike targeting a military installation. Provided the incidental civilian harm is not excessive compared with the military value of the target, the harm is lawful—the state incurs no compensation obligations under the law of state responsibility and there is no basis for a war crimes charge.

Nor are there many legal consequences for accidental civilian harms. While international humanitarian law excuses only mistakes that are both objectively and subjectively reasonable, the fog of war fosters many reasonable mistakes. A few rules—such as the obligation to ensure that all weapons can be lawfully fielded and the obligation to take feasible precautions to minimize civilian harm—attempt to minimize accidental civilian harm, but they don’t eliminate it. A state’s legal review evaluates only whether a given weapon can be used in compliance with international humanitarian law; it does not require a weapon to meet any objective safety standards. And not only is there a low bar for compliance with the feasible precautions requirement, it is also rarely understood to apply to mistakes. In explaining what would constitute a violation of this international requirement, the U.S. Law of War Manual notes that “mere poor military judgment (such as mistakes or accidents in conducting attacks that result in civilian casualties) is not by itself a violation of the obligation to take precautions.” Accordingly, neither the law of state responsibility nor international criminal law is implicated by many accidental civilian harms, no matter how deadly the consequences.

Ultimately, innocent victims are almost always left to shoulder the costs of their wartime injuries, regardless of whether the harmful acts are accidental or intentional, lawful or unlawful. 

The Need for War Torts

International humanitarian law has an accountability problem. As warfare shifts from traditional battlefields to urban environments and as states employ weapons that minimize risk to their troops, civilians are increasingly burdened with emotional, physical, and monetary harms. This displacement—the actual accountability gap at the heart of international humanitarian law—undermines the normative power of the entire legal regime.

To close this accountability gap, I have argued that we should develop an international “war torts” regime, where states would pay compensation for civilian harms in armed conflicts. First and foremost, a war torts regime would increase the likelihood that civilian victims would receive individualized compensation. This certainly wouldn’t make them “whole”: Money alone will never fully compensate victims for the harm they suffer. But it would address victims’ emotional needs for acknowledgement, respect, and closure, as well as their practical needs for funds for funerals, prostheses, treatment, and property repair and replacement.

Establishing a war torts regime would also create now-missing legal incentives for states to minimize civilian harms. A standardized, centralized reporting mechanism would ensure that militaries, civilian advocates, and others interested in minimizing needless civilian suffering would have more information about the sources and scope of civilian harms, which in turn could facilitate state adoption of practices to minimize such harms. Absent any legal accountability mechanism for accidental civilian harm, there is little incentive to learn from past mistakes. As Azmat Khan has reported, U.S. activities in Middle East conflicts are “marked by deeply flawed intelligence, rushed and often imprecise targeting, and the deaths of thousands of civilians. ... [B]reakdowns of intelligence and surveillance occur again and again.”

Further, a war torts regime could bolster other accountability mechanisms. Criminal and tort law serve overlapping but distinct purposes in domestic legal regimes: Criminal law prohibits certain acts and punishes violators, while tort law creates consequences for (lawful and unlawful) acts that harm others by requiring the payment of damages. Just as one harmful act might be simultaneously a crime and a tort in domestic law, a harmful wartime act might be a war crime, a war tort, both, or neither. State responsibility, war crimes, and war torts regimes could coexist and complement each other. Collectively, the three would constitute a more comprehensive international accountability system for civilian harms in armed conflict. 

Implementing War Torts

Implementing war torts requires making myriad design decisions that require reconciling difficult political trade-offs, so I have been hesitant to make specific recommendations. Instead, in a forthcoming article, I have mapped out many of the issues those constructing a war torts regime would need to consider. These include the respective benefits of different institutional structures, appropriate limitations on claimants and defendants, and the necessary elements of a war torts claim (including the required level and type of harm, appropriate liability and causation standards, possible affirmative defenses, and potential remedies).

At minimum, an international war torts institution would need to be able to receive and process claims, the capacity to make findings of fact and law, and the means to make damage assessments and distribute or enforce awards. It could be modeled on an adversarial tribunal, like the International Court of Justice or the ICC; it could look more like an insurance-like indemnification system, similar to the U.N. Claims Commission; or it could be structured as some combination of the two, like the 9/11 Victim Compensation Fund or workers’ compensation systems. For example, a hybrid institution might combine traits from both structures, like an adversarial process with lowered evidentiary requirements or an indemnification system that allows for more tailored damage awards. Alternatively, like the 9/11 Fund, it might be possible to have an institution with both a claims commission and a tribunal. Claimants could choose whether to pursue speedier, relatively guaranteed resolution or to file a suit against a particular defendant state to hold it directly accountable, gain more clarity on what happened, or receive a more personalized award. 

Not only can international and domestic regimes work in combination, but international regimes can foster the development of parallel domestic law. The Geneva Conventions require states to investigate and prosecute war crimes; the Rome Statute encourages domestic war crimes prosecutions by deferring jurisdiction to state courts. A war torts institution could similarly foster the development of domestic routes to a remedy by requiring states to develop processes for investigating and evaluating war torts claims and deferring jurisdiction to those able to do so effectively. 

Why Now?

Seventy years ago, German aggression led to the creation of war crimes. This movement to increase accountability for wartime wrongs began with Nuremberg, was followed by the proliferation of numerous bespoke tribunals, and finally produced the International Criminal Court and modern international criminal law. But the focus on an individual’s intended acts obscured the need for accountability for unintended systemic harms. Justice sometimes requires a tort remedy.

Today, Russian aggression may make possible the creation of war torts. Russia’s unlawful war and unlawful tactics have focused the world’s attention on the need for more accountability mechanisms for wartime harms. There have been active conversations on creating a special tribunal to try senior Russian officials for the crime of aggression, as well as on how to prosecute alleged war criminals. In addition to these criminal law conversations, there’s also general interest in finding a legitimate mechanism for using the roughly $300 billion in frozen Russian bank assets (or investing it and using the returns) to help Ukrainians. Two weeks ago, European Commission President Ursula von der Leyen stated that frozen Russian assets could be used to “compensate Ukraine for the damage and cover the cost for rebuilding the country.”  

To do so, Ukraine and other states are exploring creating an International Claims Commission for Ukraine, which would “adjudicate claims for compensation arising out of Russia’s actions.” There seems to be growing international support for this proposal: In November, the U.N. General Assembly adopted a resolution recognizing that Russia’s actions in Ukraine have violated its international legal obligations and, per the law of state responsibility, Russia must make reparation for the associated injuries. The resolution notes that there is a need to establish “an international mechanism for reparation” and recommends the creation of a registry for damages. This is a momentous step toward holding Russia accountable for all harms caused by its internationally wrongful invasion—but it doesn’t go far enough.

As currently described, the proposed International Claims Commission for Ukraine would be a one-off, bespoke institution. While any route to a remedy would undoubtedly be a blessing for Ukrainians, and while there are benefits to tailoring compensation regimes to particular situations, such custom institutions generally have limited jurisdiction and thus limited effect. Creating a new institution to address only Ukraine’s damages would leave less politically popular civilian populations without recourse or remedy.

Now is the time to think big. This war’s well-publicized horrors could spark a generative moment for the law of armed conflict, fostering the political will to establish a new, permanent war torts institution with broad jurisdiction. While this may seem impossibly ambitious, it is worth recalling that last year, the idea of holding senior members of a P5 state accountable for the crime of aggression seemed equally farfetched. Yet just last week, at the 21st Session of the Assembly of States Parties of the International Criminal Court, there was a side event on “reforming the jurisdiction of the ICC ... and other options to directly address the crime of aggression committed against Ukraine.”

Establishing a war torts regime would both create a needed consequence for Russia’s current actions and address the accountability gap at the heart of international humanitarian law for all wartime victims—in Ukraine and in the future.