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Home Posts tagged "duty to investigate"

The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 

Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

 
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Minnesota Protocol on the Investigation of Unlawful Death Gets a New Life

Published on May 26, 2017        Author: 

The Revised Minnesota Protocol on the Investigation of Potentially Unlawful Death has just been published. It sets out the international human rights and criminal justice standards applicable to national investigations into alleged summary executions and other suspicious deaths, while also providing detailed advice on crime scene investigation and forensic methodology.

The document is highly relevant for human rights lawyers and criminal justice practitioners.  As I also discuss here [pp. 204ff], human rights cases dealing with suspicious killings regularly turn on the quality of the national criminal investigation into the crime. If the investigation was done properly, international human rights mechanisms will typically defer to its findings; if not, they will find a procedural violation of the right to life, even if state responsibility for the killing itself cannot be proven.

The original Minnesota Protocol was prepared in 1991 by a small group of lawyers from that icy state and later published by the United Nations Secretariat. Formally also known as the United Nations Manual on the Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the document has been cited with approval by the Inter-American and European human rights courts.

The just published version of the Minnesota Protocol/U.N. Manual maintains the established brand names. But the text has been completely overhauled by the drafting team around outgoing U.N.  Special Rapporteur on Summary Executions, Christof Heyns (note: the author was not involved). A biopsy of the old and new versions of the Minnesota Protocol goes to show how far human rights law has advanced over the last quarter century. Read the rest of this entry…

 
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Al-Saadoon and the Duty to Investigate

Published on September 16, 2016        Author: 

On September 9, a UK Court of Appeal handed down its judgment in Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811]. Much of that case revolved around when and how the European Convention on Human Rights (ECHR) applies to the conduct of a State beyond its own borders (i.e., extraterritorially) in situations of armed conflict where that State is in some way linked to a use of force that results in death.

This post focuses on a separate issue in the judgment: the duty to criminally investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose after two individuals who U.K. military forces captured in Iraq claimed they were transferred to U.S. custody and in whose hands they were subsequently ill-treated. The Article 5 issue arose after U.K. military forces operating in Iraq detained several individuals who claimed to have had their Article 5 rights violated whilst in U.K. custody. The question that Lord Justice Lloyd Jones had to resolve was whether, under the ECHR, the U.K. had a duty to conduct criminal investigations into these alleged violations.

Lloyd Jones LJ, agreeing with Mr. Justice Leggatt’s prior High Court judgment, said that no such obligation to investigate exists for all Art 3 non-refoulement and all Article 5 violations. Read the rest of this entry…

 
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