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Judicialization, Iraq and its aftermath...

A British Army Snatch Land Rover (credit: UK Ministry of Defence)

(BRUSSELS2) At the time when we were discussing “judicialization” and the risks for the armies at IHEDN, the Institute of Advanced National Defense Studies, a new stage had been reached across the Channel. Families of four soldiers injured or killed in Iraq have obtained from the Court of Appeal recognition of the merits of a legal action against the Ministry of Defense for negligence and having failed in its obligations by not providing the correct or adequate equipment. One of the soldiers was hit in the first days of the war by friendly fire from a Challenger 2 tank, two others were seriously injured. Other cases involve the Snatch Land Rover, a protected patrol vehicle designed to travel in “low threat” areas, which exploded. Details and analysis for subscribers B2 club – to subscribe online, it’s here.

All things considered - as the facts and events are so different, we cannot help but think of the tragedy of Uzbin which struck the French elements in Afghanistan in the summer of 2008 and of the legal proceedings initiated by certain families. We can actually discuss the arrival of justice in the military sphere. And opinions in the military sphere are often negative. In my opinion, this opinion must be put into perspective. Of course, we can estimate, as the philosopher Monique Castillo says, that we are witnessing a victory of the individual over the collective or that through the questioning of “responsibility” we are attacking “legitimacy”. ”. It’s very fair and very philosophical. But this is not enough to justify an attitude of withdrawal... The movement of “judicialization” today affects all subjects of society. And it is not abnormal that the defense is spared. Especially since certain elements - the under-equipment in certain operations, the fact that soldiers are obliged to equip themselves (a recurring problem in several armies in the world) - still raise questions.

It therefore seems normal that the duty of “protection” that the State must assume towards its agents does not have a notable exception, that of the army, where the duty of protection is no more crucial than elsewhere. It is not thus intervening in the “course of the battle” to ask this question and even, with supreme audacity, to answer it. If families and soldiers take legal action, it is perhaps because somewhere, they did not have the feeling of being heard, recognized, listened to. This too is part of the nature of human relationships today. Equal treatment and no longer an infantilizing feeling. A little judicial balance would therefore not be so superfluous. How to frame this notion of “negligence”. Should we proceed in the way we assess strict liability or liability for gross negligence in administrative law? Or in civil or criminal law, medical error? The question remains open… But it deserves to be asked.

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).