Comparative perspectives on the judicialization of foreign affairs: adjudication of military deployments in national courts.

Author:Ayres, Thomas E.
Position:Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law

This panel was convened at 1:00 p.m., Friday, April 1, 2016 by its moderator, Katja S. Ziegler of the University of Leicester, who introduced the theme and the panelists: Major General Thomas E. Ayres, Deputy Judge Advocate General of the U.S. Army; Douglas Wilson, Legal Director at the UK Foreign and Commonwealth Office; Claire Landais, Director of the Department of Legal Affairs, French Ministry of Defence; and Eyal Benvenisti of the University of Cambridge. *

INTRODUCTORY REMARKS BY KATJA S, ZIEGLER ([dagger])

In many jurisdictions, the executive branch has historically conducted military operations with limited interference from the judicial branch. However, in the comparative perspective, a trend of a shifting balance between the executive and other branches of government is discernible in the context of military deployment. Modern interpretations of human rights and the rule of law, both at the levels of national and international law, require a conceptually different approach. At the same time, the context of military deployment may contribute to more precise formulations of aspects of the rule of law.

We have seen two dimensions of a trend of limiting executive power in the context of military deployment. The first concerned parliamentary involvement in deployment decisions, which was enhanced in two waves over the last two decades by a number of European states: in the 1990s after the coalition action against Iraq subsequent to the invasion of Kuwait; and after the 2003 Iraq war. The panel's focus is on the second dimension: recent military engagements of Western democracies in conflicts and post-conflict situations--such as Iraq, Afghanistan, Kosovo, and the former Yugoslavia (and potentially now Syria)--have resulted in increased judicial engagement with executive decisions to use armed force, after the fact or even during operations, on a scale hitherto unknown. Some states' courts consider themselves flooded with cases while facing considerable uncertainty about how to apply the principles of the rule of law and human rights to the specifics of conflict scenarios.

Today we find a spectrum of approaches in different legal systems at different stages of "recalibrating" the relationship between the executive and the courts in the context of military deployment within their established constitutional setting, based on constitutional rights, or based on international human rights. One of the most prominent examples involves the changes in the UK over the last 2.5 years, moving from an almost complete nonjusticiability of actions brought against the state, either by UK soldiers or by foreign nationals affected in a theatre of conflict, to a far-reaching consideration of such issues in the courts. Other examples include:

--The Netherlands, where the Supreme Court held the state to account and ordered it to pay damages for forcing Muslim men to leave the compound of the Dutchbat unit of UNPROFOR in the course of the fall of Srebrenica. While undertaking a full review, the court stated that the specifics of the situation, such as decision-making under pressure, had to be taken into account.

--German courts also, in principle, adopt a "full review" approach, for example they (and ultimately the Federal Constitutional Court) decided a tort (state liability) action concerning Germany's contribution to a NATO decision to include the Varvarin bridge (in Serbia) in the list of targets in the Kosovo campaign.

--The European Court of Human Rights reviewed in detail whether a death following from a "checkpoint incident" in Iraq amounted to a breach of the right to life and required high standards of investigation of deaths in such circumstances (Jaloud v. Netherlands).

--The Israeli High Court of Justice in its 2006 judgment in Targeted Killings confirmed the justiciability of actions of the Israeli Defence Forces because they give rise to legal questions which courts are competent to decide (including proportionality) and because it was also required by international humanitarian law. It modified the intensity of review only in regard to a margin of appreciation when assessing the proportionality.

This trend also raised concerns amongst some governments about whether more judicial involvement might overly constrain military operations, or even make decisions to use force impossible in the first place. Militaries are concerned about serious practical challenges in planning, conducting operations, and investigating incidents, for example in the context of detention, targeting, and civilian casualties. At the same time, some have noted that judicial involvement may not only lead to a more principled, rule of law-oriented approach, but also to a clearer legal framework and clearer limits for the (political) executive branch--both are in interest of the military. Furthermore, it may lead to desirable outcomes such as providing a remedy for civilians harmed by military operations, curtailing military practices that violate international law, and promoting better integration of human rights considerations into military planning and operations.

The session outlines approaches of a number of jurisdictions and critically analyzes recent case law on the conduct of armed forces in recent conflicts from national courts in the United States, United Kingdom, France, and Israel. The session aims to: (1) explain the circumstances under which courts have been willing to adjudicate issues relating to military deployment; (2) identify common approaches to adjudication and areas where differing interpretations of doctrines such as nonjusticiability lead to different results; (3) assess the operational impact of this trend toward the judicialization of military deployment decisions; and (4) consider challenges in implementing judicial decisions in the context of ongoing and completed operations.

A UNITED STATES PERSPECTIVE

By Thomas E. Ayres **

INTRODUCTION

I am honored and privileged to lead, with my boss LTG Flora Darpino, over 1,800 fulltime uniformed Judge Advocates, over 625 full-time civilian attorneys, and over 3,000 U.S. Army Reserve and Army National Guard Judge Advocate General (JAG) attorneys. While probably the least eloquent of all of the attorneys to speak to you today, this is an issue of significance and importance to me as the Deputy Judge Advocate General to the U.S. Army. Judicial intervention in military operations has the very real potential to continue to impact military operations in even greater ways in the future than it already has in the past. While it is clear that many courts around the world, including the European Court of Human Rights (ECtHR), have waded into reviewing military operations, U.S. courts have similarly not shied from reviewing U.S. combat operations. Judicial intervention in matters impacting U.S. battlefield operations has been primarily focused on the right of detainees to seek writs of habeas corpus. The U.S. judiciary's focus on writs of habeas corpus, and their general reluctance to intervene in other matters, is largely the result of three factors.

First, U.S. federal law places numerous hurdles to tortious claims against U.S. officials for battlefield activity.

Second, the focus on habeas corpus is largely the result of the U.S. constitutional structure: the Constitution specifically contemplates a role for habeas proceedings.

Third, while the U.S. has ratified the International Covenant on Civil and Political Rights (ICCPR), both our legislature and judiciary have limited the right of private action under that regime.

Lastly, I will briefly discuss benefits and perils of judicial intervention from the perspective of state militaries, and from my own personal perspective as a military lawyer advising combat commanders.

U.S. FEDERAL LAW

Avenues of Approach

Federal law provides numerous avenues for tort claims against U.S. government officials, but their applicability to the battlefield is inherently limited:

--Federal Tort Claims Act: The FTCA has two primary limitations that make it virtually impotent in federal litigation: (1) it limits claims arising out of combat activities; and (2) it does not apply in foreign territory.

--Alien Tort Statute: The ATS creates a right of action for violations of "the laws of nations." However subsequent interpretation has limited its utility to plaintiffs claiming violations of international law. In particular, it was interpreted not to apply "international law norms with less definite content and acceptance among civilized nations than the historical paradigms familiar when the law was enacted in 1789." (Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004)).

--Bivens claims are a judicially created right of action whereby private individuals can sue federal officials for violations of their constitutional rights. However, the courts have limited Bivens claims to actions alleging violations of the first, fourth, fifth, and eighth amendments of the U.S. Constitution. There are limited challenges to national security policies that will be justiciable in these contexts (See, e.g., Al Shirmari v. CACI Int'l Inc., 658 F. 3d 413, 419, (4th Cir. 2011) (suggesting that the very purposes of tort law conflict with the pursuit of warfare)).

Other Obstacles to Federal Court Intervention

Even if the FTCA, ATS, and Bivens claims did not have these inherent limitations, actions for battlefield activities would be unlikely to succeed. There are at least four obstacles that inhibit any civil action against the U.S. government: qualified immunity; derivative immunity; the political question doctrine; and a presumption that U.S. federal statutes do not apply extraterritorially.

Qualified Immunity

The doctrine of qualified immunity shields federal officials from prosecution in certain circumstances. There are two general requirements to pierce a federal official's qualified immunity:

--The conduct must be shown to be unlawful; and

--The unlawfulness is...

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