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Moderating the discussion, Professor Katja Ziegler highlighted that the panel sought to underscore courts’ growing influence in military deployments across the globe. Panelists included Major General Thomas E. Ayres, Deputy Judge Advocate General of the U.S. Army; Douglas Wilson, UK Foreign and Commonwealth Office; Claire Landais, French Ministry of Defense; and Eyal Benvenisti, Tel Aviv University, University of Cambridge Faculty of Law. The panelists, many of whom are or have been government officials, highlighted that the views expressed are their own and do not represent the governments or organizations with which they are affiliated.
Major General Ayres began his discussion by reviewing the various ways courts have adjudicated individuals for battlefield activity. After addressing Alien Tort claims, Bivens claims, and Habeas cases, the Major focused on the practical implications of increased adjudication of military activities, noting it may both benefit and undermine military activities. More specifically, judicial intervention—through which a court examines, evaluates, and perhaps approves a certain activity—may enhance the legitimacy of and public support for that specific act and military operations more generally. Nevertheless, judges are legal, but not military, experts, and accordingly may not be sensitive to the unique circumstances of military operations. This disconnect between the adjudicator and the situation being adjudicated may drive soldiers to lose confidence in the traditional judicial channels and instead take matters into their own hands to achieve justice.
Acknowledging the increasing judicialization of military activities, Mr. Wilson highlighted the importance of constructing a clear, predictable framework to govern military activities. This was especially important in light of the growing impact of the European Court of Human Rights and European Commission on Human Rights on international humanitarian law. Mr. Wilson highlighted that the ECtHR's jurisprudence often lacks clarity and is difficult to apply from one case to another or use as a guiding principle. Accordingly, a more cohesive regime addressing a human rights-sensitive international humanitarian law is needed to better inform and guide responsible government action in military deployments.
Ms. Landais discussed the French justice system’s unique handling of military-related cases. In present-day France, only civilian courts (as opposed to military tribunals) have jurisdiction to hear military-related matters. The result of an ongoing case surrounding the death of French soldiers in Uzbin, Afghanistan, this situation actually yields more lenient justice for service members, with only the public prosecutor authorized to investigate a complaint for death in battle. This results in the presumption that death in action is not a priori suspicious; soldiers who die on the battlefield are accordingly not necessarily victims of criminal offenses, but are instead heroes. Considering this relatively lax approach to approach to prosecuting military cases, Ms. Landais highlighted the uncertainty surrounding how France will address French fighters who have joined ISIL, specifically whether they will be treated as combatants or terrorists.
Mr. Benvenisti’s presentation focused on the Supreme Court of Israel’s approach to examining military-related cases. Mr. Benvenisti highlighted that the military is allotted a zone of proportionality that governs its actions. Nevertheless, issues surrounding the proportionality of military actions are legal in nature. Distinguishing military expertise from legal expertise, Mr. Benevisti noted that the Court will only interfere in these matters when the relevant circumstances exceed the military’s allotted zone of proportionality. While this judicial intervention might be seen as constraining military action, it often instead lends legitimacy to the contested operation, and also provides the army with a means to control its own soldiers and their actions.
Laura Livingston is a Law Fellow at the Public International Law & Policy Group.