[Updated] Paradis Enters the Fray

6/1/2021

Editor Michel Paradis enters the commander discretion debate with two pieces over at Lawfare and at Articles of War.

Update: Eugene Fidell responds here.

2 Comments

Philip D. Cave link

6/1/2021 01:12:52 pm

This is how Germany might deal with alleged offenses while deployed. (Another ally putting prosecutions in hands other than the commander.)

Hanan v. Germany, was decided by the European Court of Human Rights, 16 February 2021.

https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-208279%22]}

Hanan made a complaint (application no. 4871/16) against the Federal Republic of Germany under Article 34, Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Hanan alleged that civilian prosecutors had not conducted the effective investigation required by Article 2 of the Convention, into an airstrike of 4 September 2009 near Kunduz, Afghanistan, that killed his two sons. Relying on Article 13 of the Convention taken in conjunction with Article 2 of the Convention, the applicant further alleged that he had had no effective domestic remedy to challenge the decision of the German Federal Prosecutor General to discontinue the criminal investigation.

The interesting point for us that it was the civilian prosecutors who were responsible for investigating and perhaps prosecuting two German servicemembers for actions in Afghanistan while operating as part of ISAF.

Brian L. Cox link

6/3/2021 11:19:09 am

Phil, this is undoubtedly an example of another ally putting prosecutions in hands other than the commander - and presumably (based on your scholarship and previous comments here and elsewhere) you consider this to be a good thing. Before you hold this up as an example to which others (especially the US) should aspire, I would encourage you to go back and conduct a critical assessment of the decision the civilian federal prosecutor published when explaining the decision not to prosecute.

I have been studying this case -- and the no-pros decision -- for quite a while (it is one of the central aspects of a comparative study I have been conducting involving two separate attacks that resulted in civilian casualties in Kunduz Province, Afghanistan). When that study is finished and published, it will contain a full critical assessment of the German federal prosecutor's published (no-pros) decision. For this comment, though, please permit me to summarize a few limitations I have discovered in studying the decision in depth.

- Imprecise application of even the most fundamental LOAC rules
- Overreliance on secondary sources (particularly the ICRC CIHL study) to develop "authoritative" expressions of international law
- Inaccurate conflation of LOAC and human rights law when determining the applicable legal framework to apply when deciding whether to initiate a full prosecution
- Overreliance on US and ISAF investigations and a corresponding inability to develop independently-informed legal judgments
- A lack of portability, which required the entire process to be performed long after the attack and far removed from the battlespace.

Now, this is not to say that the US MJ system is the model of efficiency - and my comparative analysis identifies several limitations inherent in the process the US military utilized to dispose of potential allegations against servicemembers responsible for the attack on the MSF trauma center in Kunduz (the other incident in my comparative set). However, there are several measures the US can take to improve our practice - while there isn't much that can be done to make the German adjudicative process more efficient or responsive.

In short, it *is* an interesting point for us that it was the civilian prosecutors who were responsible for "investigating" (though, really the US and NATO investigators did that) and perhaps prosecuting (ultimately, declining to do so) after this attack. If your intent is to hold it up as a model to which the US should aspire, though, my advice is to be careful for what you wish....you may just get it.

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CAAFlog

[Updated] Paradis Enters the Fray

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