Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Comparative Perspectives on the Judicialization of Foreign Affairs: Adjudication of Military Deployments in National Courts

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Comparative Perspectives on the Judicialization of Foreign Affairs: Adjudication of Military Deployments in National Courts

Article excerpt

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. *


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. …

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