Unfolding compensation and accountability mechanisms in asymmetric conflict

This dissertation is at the intersection of tort law, civil procedure, international law and professional responsibility, exploring mechanisms that provide monetary compensation for victims in asymmetric conflicts, by which I mean conflicts between belligerents whose relative military power or strategy differ significantly. There is currently a dearth of empirical knowledge on the workings of conflict-related compensation mechanisms. To begin closing this gap, this dissertation provides an on-the-ground account of the role tort law plays in one asymmetric conflict, using the politically-charged tort litigation of the Israeli-Palestinian Conflict as a case study. In Israel, a court-based system enables Palestinian residents of the West Bank and—until recently—the Gaza Strip to bring individual claims for damages before Israeli civil courts for injuries caused by Israeli security forces' actions ("the Claims"). Through this case study, which has not been explored to date, I conceptualize the function of tort litigation in the conflict from three angles, each constituting a separate paper. The research builds primarily on 55 in-depth, semi-structured interviews I conducted with the various types of lawyers involved in the Claims, as well as other key stakeholders such as plaintiffs, retired judges, and representatives of human rights organizations. In addition, I performed a content analysis of 300 court decisions, a census of the decisions rendered at first instance in the Claims between 1975 and 2015, coding for the lawyers involved in the Claims and their affiliation. Finally, I rely on several secondary sources, including Israel's Civil Tort Act (Liability of the State) and its various amendments, Parliament protocols, news articles on Claims, NGO reports, and information from Israeli Ministry of Defense Freedom of Information Act (FOIA) requests. The first paper, entitled: "Money for Justice: Plaintiffs' Lawyers and Social Justice Tort Litigation, " focuses on the impact of plaintiff-side lawyers on the use of tort litigation in the Israeli-Palestinian Conflict. Through the conceptual framework of cause lawyering as developed by Sarat, Scheingold, McCann, Erichson, and others, I offer insight into the characteristics, practices and motivations of lawyers who operate in this field. In the context of the case study, I expose how profit-oriented plaintiffs' lawyers stepped into a void left by Israeli human rights organizations. While these private lawyers, whom I call "de facto" cause lawyers, have notched achievements on the individual client level, their involvement has shaped the litigation as a stream of particularized claims rather than a systematic struggle for social change. It also inadvertently—and ironically—supported the State's legislative initiatives to discourage anti-government tort claims. Through this analysis, I show that categorizing lawyers as cause lawyers matters for our conceptualization of where social change comes from. I also demonstrate the impact for-profit lawyers had on the capacity of tort litigation to induce change in the context of the case study. The second paper, entitled: "Access Denied -- Using Procedure to Restrict Tort Litigation: the Israeli-Palestinian Experience, " looks at the role of the injuring state in conflict-related tort litigation, particularly the use of procedure to curtail politically-charged tort lawsuits and limit claimants' access to civil justice. I show how starting in the early 2000s, Israel began using a host of procedural obstacles to restrict Palestinians' access to its civil courts, effectively precluding their ability to bring claims arising from Israeli military actions. I then use the lens of the literature on procedural justice and access to justice, as well as Atuahene's framework of dignity taking and dignity restoration, to argue that while the use of procedure to encroach on an injured person's right to compensation may be considered a taking of property, such an analysis overlooks a key component of the harm. Procedural restrictions that block access to the courts also deny Palestinians of their right to participate in the litigation process, which provides benefits such as accountability, transparency, and recognition. These benefits, I argue, are particularly important when it comes to plaintiffs from vulnerable, disadvantaged groups. The third paper, entitled: "Collateral Damages: Domestic Monetary Compensation for Civilians in Asymmetric Conflict, " builds on the first two papers to provide a more holistic view of the function tort law may assume in asymmetric conflicts. I offer an analysis of the institutional design of domestic compensation mechanisms in such conflicts, comparing the compensation paradigm applied in Israel to the model implemented by the U.S. in Iraq and Afghanistan—a military-run program governed by the Foreign Claims Act and condolence payments. I draw on tort theory, social psychology literature, and socio-legal studies and utilize, in addition to the data described above, data from legislative materials, NGO reports, and Freedom of Information Act requests pertaining to the American compensation regime. Through these sources, and by comparing the two models, I suggest that—alongside providing adequate compensation—addressing both government accountability and victims' needs is crucial for designing programs to effectively address the harm modern-day conflict causes to civilians. I subsequently offer concrete guidelines for policy-makers designing such programs, to help shape a more just compensation regime in asymmetric conflicts. By exploring the unique Israeli-Palestinian experience in this context, this dissertation both promotes a deeper understanding of the role tort litigation plays in the Israeli-Palestinian Conflict itself and suggests broader lessons to be learned from this case study towards coming up with better accountability and compensation regimes in other asymmetric conflict settings.

Keywords: Law JSD.
Advisor: Engstrom Nora Freeman 
Hensler Deborah R.
MacCoun Robert J.