Sunday, September 22, 2019

Investigating LOAC violations: war crimes and more

The Geneva Academy, along with the International Committee of the Red Cross (ICRC), just published the fruits of their five-year labor: a comprehensive document providing non-binding guidelines regarding how States should investigate Law of Armed Conflict (International Humanitarian Law) violations, including war crimes and and lesser violations of both treaty and customary international law applicable during armed conflicts. Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy and Practice is found here.

There are numerous reasons why it is so important that States discharge their international legal obligations to repress and suppress serious violations of the Law of Armed Conflict:  to better achieve the humanitarian goals of the law itself; to address complementarity as a threshold jurisdictional issue for the International Criminal Court; and to more effectively counter propaganda leveraging how States deal with allegations of war crimes, to name just a few. Given the crucial nature of such obligations, this document will ideally play an important role in assessing whether States have credibly discharged their war crimes accountability obligations. Considering the expertise and effort that contributed to this set of Guidelines, it will almost certainly be used as a baseline to critique the credibility of States' accountability efforts. This means that these guidelines will likely contribute positively to the reality and perception of credible accountability process. However, there is also risk that these Guidelines can undermine the perception of credibility if they set an unrealistically high standard for what is appropriate – if they set a standard that is not legally required. 

This work is surely one of careful, well-developed legal and policy analyses, given that it was crafted by three eminently-qualified and well-respected authors (Jelena Pejic from the ICRC, for example, drafted the immensely important ICRC work on procedural safeguards in armed conflict detention in 2005, a document that assisted the United States in improving its detention practices), and I greatly look forward to analyzing it in-depth. Jelena is joined by Professor Noam Lubell, University of Essex and The Geneva Academy of International Humanitarian Law and Human Rights, as well as Claire Simmons, also from Essex and The Geneva Academy, both widely-respected international law scholars (for example, Dr. Lubell's 2010 book, Extraterritorial Use of Force Against Non-State Actors, published by Oxford University Press, substantially advanced the legal discourse regarding such uses of force).

However:  most such documents (the ICRC's 2008 DPH Interpretative Guidance, ahem), often include a controversial recommendation or two, perhaps a mischaracterization of a statement as representing lex lata instead of clearly stated as part of the authors' lex ferenda wish-list. From my perspective as a former Judge Advocate military officer, one who worked extensively with the ICRC from 2006-2010 regarding, inter alia, the strength and credibility of U.S. Central Command’s (and subordinate units') many investigations into allegations of LOAC violations in both Afghanistan and Iraq, these Guidelines may include a few such lex feranda concepts that could be misconstrued as lex lata, particularly by those intentionally trying to portray States as failing to meet their legal accountability obligations. For example, the Guidelines' assertion that "It is submitted that States must have a law enforcement agency outside the chain of command (e.g., the military or civilian police), that conducts investigations into suspected war crimes committed by members of the armed forces in order for criminal investigations to be independent and impartial and be seen as such" strikes me as one such lex ferenda moment. Perhaps the “it is submitted” language indicates otherwise – that this is more of a recommendation than an assertion of existing legal obligation. But this is certainly an issue I hope States’ legal advisors and scholars will eagerly analyze and critique. 

Substantively, even a cursory review of these new Guidelines reveals that one of the project's main contributions is the recommendation that even when a State conducts a thorough, appropriate investigation into allegations of war crimes and subsequently absolves actors of individual criminal responsibility, a State should also consider any systemic failures that may have contributed to the results at issue. The document's integration of systemic reviews into what counts as an appropriate investigation will surely be one prompting discussion and perhaps regulatory changes going forward. Again, as a former Judge Advocate military legal officer, the importance of such systemic review seems almost self-evident: we should expect all commanders to possess and manifest a genuine interest in diagnosing ailments in a unit’s training, culture, and leadership that contributed to incidents that come anywhere close to suggesting members of the unit committed war crimes. That this is not already universal customary practice is more than troubling. 

Meanwhile – congratulations to all involved in this worthy endeavor, one that will surely help positively advance the worthy goals of the Law of Armed Conflict.


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