Tort Liability, Combatant Activities, And The Question Of Over-Deterrence(Part 1)

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Immunity from tort liability for losses that are inflicted during warfare is often justfied 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 about 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 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.

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INTRODUCTION

It has long been argued that one of tort law’s key functions is to deter potential tortfeasors from acting without due care. Yet, tort law’s ability to deter presents a challenge. If the incentives are too strong, individuals might avoid taking action, even when such actions will not result in a wrong, as they will be over-deterred. In contrast, if the incentives are too weak, individuals might act without taking due care, thus increasing the likelihood that their actions will result in wrongdoing, as they will be under-deterred. A prime example of this challenge arises in the context of combatant activities. Legislatures, courts, and scholars have asserted that if combatants are not afforded complete immunity from tort liability for losses they inflict during warfare, then they will refrain from engaging in combat or from doing all that they can to achieve their military goals (Koohi v. the United States 1992, 1330–31; Jamal Kasam Bani Uda v. Israel 2002, 5; Estate of Hardan v. Israel 2003, 14; Saleh v. Titan Corp. 2009, 18; Jacob 2003, 129–30). A “combatant activities exception” to tort liability is, therefore, justified, as it prevents combatants and states from being over-deterred.1 In this article, I challenge these accounts and justifications, using a novel empirical examination of tort liability’s ability to deter state actors from engaging in warfare. The findings indi- cate that impositions of liability under-deterred state actors from conducting hostile- ties, yet prompted a regulatory side effect: the expansion of the combatant activities exception to halt what some actors viewed as the continuation of warfare through civilian means.

The combatant activities exception can be found in many common law jurisdictions,2 and it stands against a general trend that began in the mid-twentieth century of eliminating states’ and public officials’ immunities (Bradley and Bell 1991, 15; Harlow 2004, 23; Kerr, Olivo, and Kurtz 2014, 75). The fear of over-deterring combatants is based on the notion that public officials and public bodies might bear the risks of their activities, but they generally do not gain the benefits of their activities in the same way that private individuals do. This incentive scheme raises the concern that public offi- cials and public bodies might be more prone to risk-averse behavior, causing them to act overcautiously and to fall short of fulfilling their public functions properly (Schuck 1983, 68; Fairgrieve 2002, 483; Surma 2002, 390). However, thus far, no empirical evidence has been offered in support of the argument that tort liability will over-deter pub- lic officials, and theoretical analysis of deterrence points to the opposite conclusion. In this article, I empirically examine the assertion that tort liability for losses that are inflicted during warfare will result in over-deterrence. Through this examination,  I offer substantial insights into the implications of imposing tort liability on public officials and public bodies for military actions. I demonstrate that the common instru- mental justification for the combatant activities exception does not align with the the- theoretical underpinnings of deterrence and that there are indications that, in this context, tort liability will not result in over-deterrence. I also offer an innovative legal history analysis of the causes of and motivations for the development of Israel's immunity from tort liability for losses it inflicts during warfare, relying on data from 1951 to 2021. This analysis indicates that the motivations of state actors developed, at least in part, in response to and alongside changes in the character and intensity of the conflict between Israel and Palestine. As military forces were being used to perform policing and counterterrorism activities in the Gaza Strip and the West Bank, state actors began viewing the Palestinian civilian population as an enemy and tort claims as a means of continuing warfare through civil litigation. Israel’s immunity from liability was expanded not because of a fear of deterring combatants from engaging in battle, but to support this form of “combat.”

In doing so, this study sheds new light on two factors that are currently mission-conceptualized: the identity of relevant state actors and their incentives for action or inaction about engagement in battle. Courts and scholars’ theoretical concern with over-deterrence focuses either on the effects of the imposition of tort liability on the state, as if it were an autonomous actor, or on its combatants. Furthermore, the theoretical concern with over-deterrence seems to assume that the risks associated with liability are deemed to be at least as important as the security interests of the state and its agents. Yet, theorizing deterrence in this way disregards the fact that states can only act through their public officials. It also overlooks the possibility that public officials, who are not combatants but can influence whether and how to engage in combat, could be over-deterred. Additionally, the assumption that the risk of tort liability is as important as security risks seems to be counterintuitive. Rather, security interests are likely to take precedence over other liability-related considerations, and so the liability-related considerations should have little to no effect on the decision to engage in combatant activities. In this sense, this study not only creates a dataset of tort liability’s effects on state actors during combatant activities but also adds to the theoretical discourse on the role and scope of tort liability’s deterrent effects on public actors. To achieve these objectives, I offer an exploratory research example using both quantitative and qualitative methods and focusing on Israel as a test case. My analysis is composed of an original empirical survey of 320 Israeli combatants; thirteen in-depth, semi-structured interviews with members of the Knesset (the Parliament of Israel), high- ranking officers, legal advisors to the Israel Defense Forces (IDF), and the Ministry of Defense (MoD), and state and district attorneys;3 an evaluation of the explanatory notes and protocols regarding the legislative amendments to the exception by the Israeli legislature; and additional secondary sources about state actors’ incentives to engage in combat or expand the combatant activities exception.

Israel provides a rich legislative history regarding the combatant activities exception that cannot be found in other jurisdictions. In Canada and the United States, for example, the rationale for enacting the exception is nonexistent, and while in Australia and the United Kingdom the exception is a creation of the common law, the courts have not provided a fully fleshed out justification for it (Canada, Parliament, House of Commons Debates 1953, 3332; Shaw Savill & Albion Co. v. Commonwealth 1940, 361–63; Johnson v. the United States 1948, 769; Mulcahy v. Minister of Defence 1996, 748–49; Ibrahim v. Titan Corp. 2005, 18; Saleh v. Titan Corp. 2009, 120). In contrast, Israel offers an abundance of materials. When Israel was established in 1948, it barred all tort claims against the state and its officials for two reasons. First, it feared that its public officials were not experienced enough and were therefore likely to bring about a significant number of injuries (Protocol of the 185 Session of the Second Knesset 1952, 2112). Second, it assumed that individuals were likely to sue the state for the actions of its inexperienced officials, which would result in mass debt that the state could not repay (2112). However, in 1952 it enacted the Civil Wrongs (Liability of the State) Act, which both enables the state to be held tortiously liable and immunizes it against any tortious liability for losses related to combatant activities. Unlike other jurisdictions, the Israeli legislature amended the scope of the exception three times, providing some insight into the motives for the exception through the Bills’ explanatory notes and protocols from the Israeli Parliament’s Constitution, Law, and Justice Committee in which the amendments were discussed.

Furthermore, Israeli courts interpreted the applicability, scope, and rationale of the exception in over 290 cases4—more than the Australian, Canadian, UK, and US analyses of the topic combined—and have continuously broadened the interpretation of its scope. Plaintiffs in these cases are civilians, and on rare occasions corporations, that sustained a loss due to the operations of Israel’s security forces, and the defendant is the state. The vast majority of plaintiffs are nonnational Palestinians, although Israeli and other foreign nationals have also occasionally brought tort claims in this context. Causes of action are mostly concerned with negligence and trespass to persons and property that arise from a range of activities, either within Israel or in the Gaza Strip and the West Bank. These activities include, inter alia, counterterrorism warfare, operation of checkpoints and policing activities by the military, and even traffic accidents involving combatants on duty. The article proceeds as follows. In the second section, I examine whether the imposition of tort liability will result in over-deterrence from a theoretical standpoint. I identify three relevant groups of state actors who participate in the decision-making process regarding whether and how to engage in combat and who could be deterred from the imposition of tortious liability: politicians, combatants, and government attorneys. I conclude that over-deterrence of these actors seems improbable, as the necessary elements for deterrence (ability to choose course of action, information on risks and costs, and internalization of liability costs) are absent or nonoperative about combat. In the third section, I test this conclusion using quantitative and qualitative methods, assessing state actors’ deterrence from hypothetical impositions of liability, and the legal history of the establishment and expansion of the combatant activities exception in Israel. An analysis of the collected data suggests that imposition of liability for losses that are inflicted during battle under-deters the relevant state actors from engaging in belligerent activities. Yet, tort litigation and liability have a secondary side effect on pol- politicians and government attorneys, as it prompted them to initiate and adopt legal amendments that greatly restrict potential plaintiffs’ access to effective remedies. The fourth section concludes by suggesting that the beliefs that ground the justifications of the combatant activities exception should be revisited. The findings of this study indicate that the minimization of tort liability was driven primarily by a desire to limit courts’ ability to hold that the state inflicted a wrongful loss, rather than a fear of over-deterring combatants or a concern that tort suits would prove too costly for the state to bear. Additionally, while tort liability and litigation did not deter state actors from engaging in wrongful combatant activities, they did have an important regulatory side effect in that tort liability and litigation seem to have prompted state actors to expand the scope of the immunity from liability. Given these findings, it is difficult to defend the combatant activities exception through the concept of over-deterrence.

OVER-DETERRENCE OF COMBATANT ACTIVITIES: A THEORETICAL ASSESSMENT

The existence of the combatant activities exception is often justified because liability would over-deter states and combatants, causing them either to refrain from engaging in belligerent activities altogether or to avoid using all the means at their disposal.5 For instance, in the Koohi case, which to date provides the most exhaustive analysis of the exception’s rationales given by a court, Judge Reinhardt held that Tort law is based in part on the theory that the prospect of liability makes the actor more careful ::: Congress certainly did not want our military personnel to exercise great caution at a time when bold and imaginative measures might be necessary to overcome enemy forces; nor did it want our soldiers, sailors, or airmen to be concerned about the possibility of tort liability when making life or death decisions amid combat. (Koohi v. the United States, 1330–31)6 Judge Reinhardt’s argument illustrates an additional point that is evident in both judicial opinions and scholarship on this topic: they often consider the deterring effects of tort liability either on the state as a single entity or on combatants as the only relevant state actors. Yet, the state is comprised of various groups of actors, each of which might have different considerations and incentives. In the context of belligerent activities, there are three relevant groups of state actors who play an active part in the decision on whether and how to engage in battle: politicians, government attorneys, and com- patents.7 Both politicians and combatants are decision-making actors about engagement in or refraining from battle. In this sense, an imposition of liability, either directly on them or vicariously on the state, might, in theory, deter them from engaging in certain activities. In addition, government attorneys are relevant actors both because they advise politicians and combatants about the possible legal ramifications of their conduct and because they can be an integral part of the legislative processes that determine who is liable in tort.8 The key question is, therefore, whether these three groups of actors could be over-deterred from engaging in combatant activities for which tortious liability could be imposed.

To this end, it is essential to understand what I refer to as “the spectrum of deterrence.” Deterrence is commonly understood as the potential of tort liability to influence an actor’s decision whether to engage in a potentially injurious activity or how to conduct it considering the pecuniary costs and benefits that are associated with the various choices she has. Under-deterrence is at one end of the spectrum, and it occurs when tort liability does not incentivize individuals to take due care. Over-deterrence is at the other end of the spectrum, and it occurs when tort liability provides incentives so strong that individuals might avoid taking action even when it will not result in a wrong for which they will be held liable. Somewhere in between lies the optimal level of deterrence, which prompts individuals to act with an adequate degree of care.9 This understanding of deterrence is premised on three assumptions. First, individuals have a choice of whether to participate in or refrain from an activity and whether to take precautions about that activity (Jacob 2003, 127). Otherwise, tort liability is not likely to influence their behavior to a significant extent, as they must act, or refrain from acting, in the particular way that is prescribed to them. Second, it is assumed that individuals have accurate information about the costs and benefits that are associated with action and inaction and an opportunity to engage in a rational analysis of this information.10 Partial information and lack of expertise in analyzing its meaning result in erroneous determinations, which in turn could provide misguided ex-ante incentives to individuals (Goldberg 2003, 552). Third, it is also assumed that imposition of liability will, generally, change individuals’ balance of reasons, thus incentivizing them to act more carefully, and that without this incentive individuals will not act with due care (Sugerman 1989, 12–18). In the context of belligerent activities, none of these preconditions seem to be met by the three relevant actors during warfare.

Take the fact that the ability to choose freely between courses of action is somewhat limited in combat, for example. When politicians are in the position of directing the military’s activities, they are free to choose whether the military will engage in combat. Indeed, they can opt for a completely pacifistic approach to any threat their country and constituents face. Yet, it is equally possible that politicians will prefer to incur the financial costs that arise from engaging in a battle over the political or financial costs of inaction, even if the former is greater than the latter.11 Politicians’ discretion, in this regard, is wide. That said, politicians might not have the knowledge or willingness to choose the exact course of action and so might defer on this issue to high-ranking combatants. Combatants’ discretion is significantly more limited. Once politicians have ordered them to engage in a belligerent activity or refrain from it, they have little choice over the matter. High-ranking combatants might have the ability to choose how and when to engage in the belligerent activity, but this potential choice is more limited, by and large, when it comes to lower-ranking combatants. Most commands are given to lower-ranking combatants with a high degree of specificity and a low degree of discretion. Furthermore, when faced with a risk to themselves or others, combatants might feel obligated to act in self-defense (Benbenisty, Ben-Shalom, and Ronel 2010, 42), lack the time to make cost-benefit considerations, or be forced to act inadvertently.12 In either case, it is hard to see how liability could have any deterrent effect as freedom of choice is very limited (Englard 1993, 43–44; Jacob 2003, 128). Additionally, while they can refuse to participate in belligerent activities, and perhaps enlist altogether, in doing so they are accepting the possibility that they could be held criminally or administratively liable. Likewise, government attorneys’ discretion is limited. They can advise politicians and combatants on the legal nature and implications that certain acts or omissions might have. In doing so, they cannot offer legal advice that is beyond the scope of their role, and they are generally not in a position to order that a combatant activity be conducted or not. Rather, they advise the individuals who will decide whether to engage in combatant activities.

As for information about the various costs and benefits of combatant activities, it seems that all three groups of actors are unlikely to have a full and accurate account. War has been aptly described as “the realm of uncertainty” (Clausewitz 1832, 101). Any analysis could not be made with certainty or even a high degree of plausibility, and it is unclear whether the lack of information will result in over-or under-deterrence. The degree of deterrence that imposition of liability would add to this calculation hinges on the level of risk-aversiveness of each group of actors, the weight they assign to tort liability considerations, and their ability to freely choose their course of action. Furthermore, while politicians, government attorneys, and high-ranking combatants might have access to more information regarding the various costs and benefits of each particular activity, lower-ranking combatants are less likely to have such information. Lower-ranking combatants might be informed about what costs and benefits their mis- sion generally entails once it has been decided, but they will not be informed of various alternatives to their mission. Lastly, all three groups of actors are unlikely to bear any of the costs personally for three main reasons. First, potential plaintiffs are discouraged from filing claims due to high litigation costs, low potential compensation, and procedural hurdles (Bachar 2017, 849–51). With fewer plaintiffs standing on their rights, neither individual state agents nor the state fully internalizes the costs of the losses the state inflicts (Schwartz 2002, 1071). Second, in those instances where plaintiffs do decide to use, it is the state and not any particular agent of it that is sued. This could be because the identity of the combatant who inflicted the loss is unknown. After all, the state has deep pockets from which plaintiffs can recover their costs (Jacob 1992, 455; Crootof 2016, 1390), or because of a legal hurdle to holding a public official liable.13 Third, even if individual agents were sued, the state could not only be held directly or vicariously liable but also might pay the cost of compensation in its agents’ stead.14 The combination of these three factors results in little to no internalization of costs by individual state agents from any of the three relevant groups. Moreover, the state is likely to be indifferent to the costs of tort liability, as such liability is unlikely to have a significant budgetary consequence.

Consequently, it seems that politicians, combatants, and government attorneys are unlikely to be deterred by a potential imposition of tort liability. While politicians have relatively more freedom to choose their course of action, combatants and government attorneys are more restricted in what they can and cannot do, especially while belligerent activities are being conducted. Information for all groups is partial, and lower-ranking combatants are generally likely to have the least amount of information regarding the costs and benefits that are associated with various forms of action and inaction available to them. Individuals from all groups of actors will not internalize the costs of losses they impose, and the state’s budget will not be affected in any signifi- cant way by the imposition of tort liability. Given that none of the groups of state actors meets all three preconditions, it is hard to maintain that tort liability in this context will have an over-deterring effect;15 deterrence in this context seems theoretically unlikely.