CONTRACTOR TORT IMMUNITY UNDER THE LAW OF MILITARY OCCUPATION

The United States' invasion and subsequent military occupation of Afghanistan and Iraq have led to a number of tort suits filed against civilian contractors accompanying United States military forces on these operations. Most of the court opinions and scholarly commentary that address these tort suits have focused on applying ordinary, peacetime tort defenses to the plaintiffs claims. There are two viable immunity defenses that are war-specific and available to contractors in battlefield tort suits. The first such immunity, recognized initially in Coleman v. Tennessee, 97 U.S. 509 (1878), provides an immunity from the laws of an invaded or occupied territory for all persons who are not regular inhabitants of the territory. The second immunity, initially recognized in Dow v. Johnson, 100 U.S. 158 (1879), provides an immunity from tort claims based on any acts done in the prosecution of a public war. This article posits that both of these doctrines should apply with full force to civilian contractors retained by the United States to support a military invasion or occupation, just as they apply to soldiers performing similar roles as part of the total invading or occupying force, and these immunities are a superior basis for resolving battlefield tort claims than trying to adapt peacetime tort defenses to the context of war.