Mr. Lietzau assessed the A1 Jeddah and Al Skeini cases in the context of the broader debate regarding detention policies and the impact those judicial decisions could have on the battlefield. While consistently advocating the protection of human rights as the raison d'etre of both international humanitarian law (IHL) and human rights law (HRL), he detailed the very different circumstances these two bodies of law were intended to address, explaining why the respective frameworks are not interchangeable and why the European Court of Human Rights's application of HRL during armed conflict was neither appropriate nor sustainable in war.
Mr. Lietzau began by framing the two paradigms: law enforcement and war. Beginning with the lex generalis of HRL and its relevant domestic implementing framework in criminal law and criminal procedure, he detailed the various requirements associated with depriving a free individual of liberty as punishment for a past act. With respect to the lex specialis of IHL as it would apply against a belligerent, he noted that the individual in question enjoyed a much less favorable starting point: potential targeting from the perspective of opposing armed forces, as opposed to the freedom of a person observed in the peacetime context.
He also noted that the purpose of detention in such a context was not that of punishing a prior bad act, but instead of mitigating a future threat. Comparing the two, he provided an analysis to conclude why one should not expect a body of law developed for one purpose and circumstance--peacetime law enforcement--to provide useful guidance for another context: wartime detention of belligerents. Perhaps most compelling was the recognition that even in the instance of a predictable overlap of past bad acts and future threat, criminal law's appropriately high standard of proof beyond a reasonable doubt in a common-law tradition--was entirely inappropriate in a wartime context where the standard of proof for justifying kinetic targeting is, and has always been, something much less. As a deontological matter, we would never want to hold a soldier who has captured the enemy to a higher standard of proof to justify detention of the enemy than we would use to assess the far more significant decision to kill.
Working against the backdrop of these paradigms, Mr. Lietzau explained many of the practical difficulties International Security Assistance Forces encounter in Afghanistan, as they plan military operations to be executed by a variety of state military forces, often with different legal frameworks and standards. It became obvious that prudence would militate against using any forces for combat operations that could be put at risk of ECHR litigation using an HRL paradigm. …