Litigating How We Fight

It is well-documented that the way the Bush administration chose to conduct its conflict against al Qaeda caused a significant rift between the United States and European States. US policies that authorized the use of renditions, secret detention facilities and harsh interrogation techniques created diplomatic tension between the United States and many of its European allies, making it harder to focus on other bilateral and multilateral issues and at times diminishing law enforcement and intelligence cooperation. Many of these European reactions and decisions were discretionary, taken by the political branches of European countries in response to pressure from their electorates and human rights groups. One might reasonably think, therefore, that some of the changes introduced by the Obama administration related to the conflict with al Qaeda—the three January 2009 executive orders, for instance—would have started to close that rift. But something remarkable—and surprisingly unremarked upon—has been happening since 2001 that is both widening and securing the permanence of this transatlantic divide. Courts on both sides of the Atlantic are deciding cases brought by individuals who are contesting the way States have been fighting armed conflicts with non-State actors (such as the Taliban and al Qaeda, as well as armed groups in Iraq). With the exception of individual claims related to the lawfulness of detention at Guantanamo, the US government has won the vast majority of its cases, with the courts often declining even to reach the merits of the claim. In contrast, European States (with the United Kingdom leading the way) have lost virtually every case on these issues that has come before their courts or before the European Court of Human Rights (ECtHR). These cases are having a systematic effect on States’ decisions about how to conduct themselves in armed conflict. It therefore is in the interests of policymakers and warfighters to understand this trend. Part II of this article examines the wide spectrum of cases in which States or State officials have been sued for their alleged conduct related to non-international armed conflicts. Part III assesses the real-world implications for the judicial decisions in each area, not only for the specific litigants but also for government policy and operations more generally. Part IV considers possible explanations for the divergent outcomes of these cases and offers some thoughts about how States might try to manage these developments in the future.