Military Investigations in Armed Conflict: Investigating Themselves?
Editors’ note: This post is based on the author’s recently published book, Military Investigations in Armed Conflict: Independence and Impartiality under International Law, published with Routledge.
“We investigated ourselves and found we did nothing wrong.” This ubiquitous joke nicely summarises one of the issues behind my research: civil society’s perception that military investigations into war crimes committed by their own forces are instances of “marking their own homework,” and cannot contribute towards effective accountability.
Recent decades have brought increased scrutiny to government investigations, including military justice, in part through extensive human rights law jurisprudence on procedural guarantees. Despite a trend toward civilianisation of certain parts of military justice systems worldwide, States are unlikely to completely abandon military investigations anytime soon, at least when it comes to armed conflict and/or extraterritorial military operations, where possible violations of international law are first investigated. Most States rely on some form of military involvement in operational investigations. Even States that purportedly no longer have a full “military justice system” may still in practice need military bodies to contribute to certain parts of the investigation.
There are many reasons why complete civilianisation of these processes might not be helpful. There simply might not be any other body able and/or willing to carry out certain investigative steps. And, when carried out properly, military investigations can contribute to a State’s compliance with its obligations to suppress violations of international humanitarian law and ensure respect for the 1949 Geneva Conventions and their Additional Protocols. This does not mean such investigations are never problematic, however, and there are certainly military-specific concerns which must be addressed and monitored in these contexts.
Whether military investigations contribute to or hinder accountability for violations of international humanitarian law is the topic of my book published this year. I suggest that many of the deep-set criticisms of military investigations, and military justice systems more broadly, can be understood through the lens of independence and impartiality. Can a military institution really be expected to carry out an independent and impartial investigation when one of its own is under scrutiny? Or do such situations necessarily foster impunity? Rather than anything inherently problematic with the “militarness” of the proceedings, it is important to provide legal and practical clarity on how a properly structured military justice system can conduct an effective investigation into serious violations of international law. Only then can we fairly scrutinize whether these systems can comply with a State’s international legal obligations.
Must Investigations be Independent and Impartial?
The idea for the book partly stemmed from discussions held in expert meetings during the drafting of the Guidelines on Investigating Violations of International Humanitarian Law, published in 2019 by the Geneva Academy of International Humanitarian Law and Human Rights and the International Committee of the Red Cross. During discussions on Guideline Number 7 on the independence and impartiality of criminal investigations, as well as other guidelines on non-criminal (administrative) investigations, experts disagreed about what standards should apply, or what the legal foundation for such standards were.
It is frequently assumed that investigations should be independent and impartial, perhaps in a similar way that we expect judges, courts, and tribunals to be independent and impartial. The need for an independent and impartial judiciary can be traced back to the social contract between governments and citizens who have given up their rights to self-adjudicate and use force. These standards now exist at the international level under international human rights law: a suspect’s right to fair trial may be violated if there are any deficiencies in upholding the standards of independence and impartiality, both separately and collectively.
Yet investigations are not necessarily part of the same judicial category, nor do they take the same jurisprudential journey as fair trial rights. International bodies originally focused on impartiality in the collection of evidence, together with other standards such as promptness in investigating. In fact, regarding the duty to investigate violations of international law, what matters is “overall effectiveness,” namely answering the question, “have reasonably sufficient means been put into the investigation to enable it to achieve its objective (e.g., identify the perpetrator, clarify whether a violation occurred, provide a remedy)?”
This way of understanding the standards has been laid out most clearly by regional human rights courts (e.g., some cases before the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights). I suggest that it is also an appropriate benchmark to measure investigations under international humanitarian law, and indeed also international criminal law. The interplay of these bodies of law is explored elsewhere and further in my book.
As opposed to absolute independence and impartiality required for judges, courts, and tribunals, what matters for investigations is therefore whether, when considered as a whole, they are sufficiently independent and impartial to be effective. In this way, independence and impartiality are means to an end, the end being to achieve an effective investigation.
When Can Military Bodies Contribute to Effectiveness?
Making an investigation effective requires, on a case-by-case basis, determining which type of investigator is the most appropriate to investigate violations of international law. Militaries can be the most effective investigators in some contexts, especially in armed conflict and/or extraterritorial settings, even if they are not the most independent. What matters is that they are sufficiently independent and impartial to contribute to the overall effectiveness of the investigation.
There are a few ways in which military investigators can contribute to effectiveness:
– If the law or legal agreements envisage that the military will investigate (e.g., extraterritorial offences or war time jurisdiction);
– If members of the military are the only people who can (safely or physically) access the scene;
– If they can investigate most promptly;
– If they have expertise in the matters at hand.
Some of these reasons were explored in the ECtHR Hanan v. Germany case. In Hanan, the Court cited the abovementioned Guidelines in laying out the legal framework. Germany also cited them and indicated that the German Prosecutor had used them as a benchmark for carrying out investigations.
However, the applicant submitted that the investigation could not be considered sufficiently independent inter alia because “[a]ll investigators involved were part of the German military contingent in Afghanistan” (para. 158). In response, Germany explained it does not actually have a “military justice system” in the usual sense of the term. Indeed since the Second World War only civilians try criminal matters committed by military personnel. Yet this does not mean that Germany does not have military investigators. In fact, because of the situation on the ground and NATO legal agreements, Germany had to have military investigators to comply with its legal obligations. Military personnel are involved in the first stages of the investigation, then they hand everything over to the German civilian prosecutor who takes over the case.
The Court concluded that within the context of the ongoing hostilities, extraterritoriality, and legal arrangements, the investigation overall could be considered sufficiently independent and impartial to be effective (paras. 223-27). The hostilities were significant here, as the Court recognised that the ongoing conflict “constitutes a significant difference to [previous cases] where the deaths to be investigated did not occur in the active hostilities phase of an extraterritorial armed conflict” (para. 223).
The Court provided many more specifications as to what may constitute sufficient safeguards to ensure the effectiveness of investigations in such contexts. In my opinion, this case was a welcome development in light of certain governments’ backlash against human rights bodies, claiming such human rights bodies should not scrutinise armed forces’ activities abroad. The fact that the Court was able to consider the realities of armed conflict and apply the standards of impartiality and independence realistically and reasonably is promising for enhancing compliance.
Military Institutional and Cultural Challenges
The above does not imply that military investigations do not pose any problems for achieving independence and impartiality. There are unique aspects of military institutions and military culture which must be taken into account. These may be divided into: (1) the chain of command and military hierarchies; (2) matters of implication under command responsibility; and (3) matters of loyalty and military culture.
The Chain of Command and Military Hierarchies
First and most obviously, military hierarchies and chains of command have unique power dynamics which affect decision making. For example, if an investigator is subordinate to someone who is allegedly involved in a violation, they cannot be expected to act impartially. But these difficulties can be addressed by creating a separate chain of command for judicial military personnel, such as by ensuring that the military police fall outside the operational chain of command. For example, the UK has repeatedly reformed its military justice system following ECtHR litigation, changing the relevant command structures to ensure the independence of the military police and prosecuting authorities, and introducing a new independent unit to investigate serious offences to address concerns of undue influence by Commanding Officers. The issue of military hierarchies is not an insurmountable obstacle, but one that requires specific safeguards and context-specific considerations.
Matters of Implication under Command Responsibility
Second, there are unique matters of “implication” with regard to command responsibility under international criminal law. Given that (in law and theory at least) commanders may be held individually liable for war crimes committed by their subordinates, it should logically follow that the commander’s personal liability is one element which will need to be investigated. For this reason, a commander also should not be considered impartial, at least for investigations into potential war crimes. The increasing trend of removing commanders from investigating “serious” violations committed by their subordinates is a positive step in this regard.
Matters of Loyalty and Military Culture
Finally, there are matters of loyalty and military culture which I believe are the main concerns behind the quip cited at the beginning of this post. This is because the armed forces are always, and explicitly so, institutions based on loyalty as a value which is encouraged and promoted. It is a value for which it is necessary for members to fight effectively and potentially lose their lives.
But suggesting that this loyalty will always be problematic is itself a problem. It is necessary to look instead at when this loyalty may have become “toxic,” when members of a specific group consider themselves above the law and will do anything to protect the members within. And it is also necessary to identify the catchment of this toxic loyalty. Is it present within a unit, a platoon, a division, a service, the armed forces as a whole? Or even something broader, such as along national, ethnic, or religious lines? Such toxic loyalty can indeed pervade spheres beyond the armed forces, in which case civilianising the process would not solve the problem.
Being a member of the same institution will not necessarily mean an investigator should be considered “toxically loyal” to all its members to a point where they would try to cover up their misconduct. In fact, in some cases, it may have the opposite effect, as individuals loyal to their institution might want to weed out such behaviour.
These cultural issues linked to impunity go beyond issues of independence and impartiality, and merit further research, given the wide-ranging issues tied to the closing of ranks and the “wall of silence” in multiple investigations into military conduct. Further independence in such contexts would not solve these challenges and may in fact aggravate them.
Concluding Thoughts
Military investigations do not necessarily violate the principles of independence and impartiality in investigating simply by being “military.” Rather, sufficient safeguards must be in place to ensure that overall, they are sufficiently independent and impartial for the investigation to be effective. This clarification is important when considering military investigations in armed conflict because there are many factors other than independence that also need to be taken into account in assessing effectiveness, such as who can actually access the scene, who can gather evidence on time, or who knows the dynamics of what was going on.
Such a clarification should not be seen as giving a “free pass” to military bodies, in fact quite the opposite. Clarifying and strengthening the fact that military institutions are subject to international law emphasises that States must be very careful in the way they structure their judicial institutions to make sure they comply with international legal standards.
Doubtless, certain military investigations were not only flawed but actively served to promote impunity for atrocities committed by military personnel. Yet if we expect to hold States and their militaries to account, fair scrutiny needs to be based on legal reasoning, and criticisms need to be fully informed of all the circumstances, practical and legal. Informed scrutiny is crucial not only for accountability, but also to credibly bridge the civilian-military divide which can hinder meaningful conversations on what accountability in armed conflict should look like.
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Photo credit: U.S. Naval Forces Central Command/U.S. Fifth Fleet
