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French Lawfare

Thursday, Oct. 29, 2009

Jean-Dominique Merchet notes the latest example of civil law's intrusion into warfare: The families of two of the French soldiers killed in an August 2008 ambush in Afghanistan are pursuing a civil lawsuit against the operation's commanders for "deliberately endangering the life of another."

Now, two things worth noting here. The first is that the families are reacting in large part to the lack of any formal sanction of the unit's officers, who even the army concedes committed "errors of evaluation" in the operation in question. The families also expressed dissatisfaction with the army's account of the events that led to the ambush and subsequent deaths of 10 soldiers, as well as with official responses to their repeated queries for answers. So this is some ways a protest against the army's opaque handling of the incident.

The second is that France does not have a peacetime military justice system. That is, the army can sanction soldiers professionally (suspension of duties), but any criminal behavior -- even in the line of duty -- falls under the jurisdiction of the civilian criminal code and justice system. Exceptional courts martial can be established when troops are stationed or deployed operationally abroad. (I'm not sure if that's been done in Afghanistan.) But the precedent for civil jurisdiction over military behavior is firmly established.

The complication arises, of course, from the European aversion to "war," both the reality and the word. Merchet wonders, "Isn't military action always essentially 'deliberately endangering the life of another'?" The answer, of course, is, Yes. But for political reasons, no one here is willing to call the "military action" in Afghanistan "war." So long as that's the case, French (and, it seems, German) soldiers will be vulnerable.

My question is, How long before Afghan civilians hear about this and bring the same sort of lawsuit?