Military Investigations in Armed Conflict

This book explores a topic of critical importance in legal and policy discussions surrounding the accountability of military operations in armed conflict, and problematises some presumptions that are often made about the topic.

An allegation is made that a war crime was committed by a soldier during a conflict. Who should investigate the allegation? How should they investigate?

This book explores a topic of critical importance in legal and policy discussions surrounding the accountability of military operations in armed conflict, and problematises some presumptions that are often made about the topic. The work provides the international legal framework necessary to address these questions and establishes the precise standards of independence and impartiality as applicable to investigations in armed conflict. It questions the assumption that the standards of independence and impartiality of investigations should be measured in the same way that we measure these standards for judges, courts, and tribunals. It also explores the ways in which military institutions and culture, as well as the context of armed conflict, may impact on the effectiveness of investigations or the perception of justice by those affected. By demonstrating the precise ways in which military investigations can contribute to or hinder the effectiveness of investigations, the book clarifies States' responsibilities with regard to their accountability efforts for serious violations of international law in armed conflict. The work will be a valuable resource for academics, researchers, and policy-makers working in the areas of international humanitarian law, international human rights law, as well as political science and military ethics.

Autorentext

Claire Simmons is a Senior Lecturer in the Department of Defence & International Affairs at the Royal Military Academy Sandhurst, and Fellow of the Essex Armed Conflict and Crisis Hub, part of the Human Rights Centre at the University of Essex (UK).

Inhalt

Contents

Acknowledgements

Chapter 1: Introduction

?

· What is an investigation?

Chapter 2: The legitimacy of military justice

· A brief historical overview of military justice

justice: discipline

o The "justice" part

· Is it possible to compare military justice systems?

o Defining military justice

o The common/civil law divide: a useful problematic divide

o "Disciplinary" versus "criminal" in the common and civil law systems

o Comparing standards of fair trial and due process

· The scope of military jurisdiction over serious violations of IHL and IHRL

"military nexus" criticism

Chapter 3: The obligation to investigate effectively under international law

· Introduction

· A duty to investigate under IHL

o A comment on the interplay of bodies of international law

o Ensuring the implementation of treaty provisions

o A procedural duty under IHL

o Investigations as effective remedies

· A duty to investigate serious violations

o Violations affecting physical integrity

o Violations which are part of a pattern

o Non-serious violations?

· A duty to investigate effectively

o The concept of effectiveness

o Reasonable means

o Purpose of the investigation

· Conclusion

· Defining independence and impartiality

· Assessing independence and impartiality for investigations

o Is the investigator "implicated"?

o Independence from those with responsibility

o Independence and impartiality in light of the whole investigation

· Conclusion

duction

scope of loyalty: "unit, corps, God, country"?

· A failure to investigate as a form of responsibility

· Patterns of problems affecting independence and impartiality

o Patterns of violations implying a failure to investigate

o Policy-related violations: Undue pressure from above

o Systemic problems that don't affect independence and impartiality

o Systematic impunity in the international legal regime

o A measure of last resort: international mechanisms

o The matter of "unable"

: Independent and impartial military investigations

justice systems in investigating violations of IHL

· Going forward