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Military Investigations in Armed Conflict
ISBN-13: 9781032415673 / Twarda / 2024 / 208 str.
Military Investigations in Armed Conflict
ISBN-13: 9781032415673 / Twarda / 2024 / 208 str.
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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.
Contents
Acknowledgements
Chapter 1: Introduction
· The problem with “militaryness”
· Why focus on armed conflict?
· What is an investigation?
Chapter 2: The legitimacy of military justice
· A brief historical overview of military justice
o Basis of military 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
o Basis of the “military nexus” criticism
o The “functional concept” of military jurisdiction
o Jurisdiction over serious violations of IHRL and IHL
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
Chapter 4: The independence and impartiality of investigations in relation to their effectiveness
· Defining independence and impartiality
· The independence and impartiality of judges, courts, and tribunals
o Legitimate governance and the rule of law
· The independence and impartiality of investigations
o Do investigations need to be independent and impartial?
o Overall independence and impartiality as serving effectiveness
· 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
Chapter 5: Military institutional challenges to independence and impartiality
· Introduction
· The effect of military hierarchy on independence and impartiality
o The impact of subordination and discipline
o Other relationships in a hierarchy: command responsibility and “implication”
o Nature of the offence: rotten apples or rotten institutions?
o Too much independence? The matter of expertise
· Military culture: loyalty, camaraderie, and the wall of silence
o The scope of loyalty: “unit, corps, God, country”?
Chapter 6: The impact of armed conflict on independence and impartiality
· Reasonableness in armed conflict
o Reasonableness in fulfilling international legal obligations
o Reasonableness in IHL as balance between military necessity and humanity
o How to measure reasonableness in independence and impartiality
· Legal and practical obstacles to independence and impartiality in armed conflict
o Jurisdiction: the impact on independence
o Access to the scene and security: who can investigate?
· Legitimacy in armed conflict: impact on the perception of independence and impartiality
o Addressing legitimacy concerns
· 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 The scope of problematic biases affecting the impartiality of investigators
o Systemic problems that don’t affect independence and impartiality
· Achieving independence and impartiality when investigating patterns of violations
o The need for cross-cutting investigation in the context of a pattern of problems
o Removing obstacles to independence and impartiality at a functional level
o Creating meaningful justice: Perception of independence and impartiality
· Systematic impunity and measures of last resort
o Systematic impunity in the international legal regime
o A measure of last resort: international mechanisms
o The matter of “unable”
· Overview: Independent and impartial military investigations
o The role of military justice systems in investigating violations of IHL
o The independence and impartiality of investigations in relation to their effectiveness
o Challenges to the independence and impartiality of military investigations
o Safeguarding the independence and impartiality of military investigations
· Going forward
Dr Claire Simmons is a senior lecturer in the Department of International Affairs at the Royal Military Academy Sandhurst, and fellow of the University of Essex Armed Conflict and Crisis Hub. She has experience working on international humanitarian law and human rights in academic institutions and non-profit organisations. The views expressed in this book are those of the author and do not necessarily reflect the views or positions of any affiliated entities.
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