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?
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.’
Following the withdrawal of most UK service personnel from Iraq in 2009, and while the public inquiry into the death of Baha Mousa was still ongoing, IHAT was established by the UK Ministry of Defence to investigate the growing number of allegations of abuse of Iraqi civilians and refer credible cases for prosecution. Staffed by retired Royal Navy Police officers and former civilian detectives to meet ECHR requirements for investigative independence, it was criticised by Iraqi victims for lack of transparency. By the time IHAT closed in June 2017 it had received some 3,400 allegations of unlawful killing and ill treatment but not secured a single successful prosecution. Remaining cases were referred to a new Service Police Legacy Investigations team, which closed 90 per cent of them quickly. In addition, the obligation for a publicly-accountable investigation into the specific and wider circumstances of death (as required under Art. 2 of the European Convention on Human Rights (ECHR)) is designed to be met by the IFI without the need for a statutory public enquiry.
Whether this record satisfies the complementary requirements under the Rome Statute of the International Criminal Court (ICC) remains to be seen. Under her preliminary examination of the Iraq cases, the ICC Prosecutor concludedin December 2017 that there was ‘a reasonable basis to believe that members of the UK armed forces committed war crimes within the jurisdiction of the Court against persons in their custody’. Her ongoing admissibility assessment will turn on the gravity of the crimes alleged and on whether the UK has demonstrated that it was willing, genuinely, to carry out investigations or prosecutions.
In the absence of domestic prosecutions, it has largely been left to the civil courts to determine abuse cases. Also in December 2017, Mr Justice Leggatt in Iraqi Civilians v Ministry of Defenceawarded damages to four Iraqi claimantsfor inhuman and degrading treatment and unlawful detention. He ended with the hope that the judgment would enable a realistic assessment of the likely outcome in a further 600 outstanding cases.
Investigatory Obligations under International Humanitarian Law
Compared with investigative duties under international criminal law or human rights law, investigations mandated by IHL have received less attention (a notable exception being the second report of the Turkel Commission into the Mavi Mara incident during the Gaza blockade).
Although the duty to investigate civilian deaths is not explicitly formulated on the face of the Geneva Conventions 1949, investigatory obligations nonetheless exist in IHL, both in the law protecting victims of armed conflict and in that governing the conduct of hostilities. The Conventions and their Additional Protocols of 1977 include extensive duties on all parties to conflict to account for the dead and the missing, prompted mainly, according to Art 32 Protocol I, ‘by the right of families to know the fate of their relatives’ (a rare case of a reference to rights held by natural persons, and moreover civilians). For example Art 131 GC IV requires that every death or serious injury of a civilian internee ‘shall be immediately followed by an official enquiry’. Art 33 Protocol I obliges parties to conflict to record detailed identification information about persons who have died ‘during any period of detention’, and, also, in para. 2(b), states that they shall:
‘to the fullest extent possible, facilitate and, if need be, carry out the search for and the recording of information concerning such persons if they have died in other circumstances as a result of hostilities or occupation.’
The ICRC official commentary notes that, unlike a search after a battlefield clash, the search for the missing is not so much a question of combing a well-defined area, but of carrying out a real investigation’[emphasis added] and sub-paragraph 2.(b) applies ‘in particular to the registration of the missing and the dead after bombardments.’
Although these provisions apply to international armed conflicts (IACs), and the corresponding obligations in Additional Protocol II, on non-international armed conflicts (NIACs), are considerably more brief (eg Art. 8), the ICRC study on customary IHL quotes extensive state practice (including from Israel and the opinio juris of the US) to establish accounting for the dead and the missing as a norm applicable in NIACs too. That ICRC Customary International Humaniarian LawStudy, includes the rule, for IACs and NIACs, that ‘Each party to the conflict must take all feasible measures to account for persons reported missing as a result of armed conflict and must provide their family members with any information it has on their fate.’
Turning to the law governing the conduct of hostilities, criminal investigations are clearly required where there is reasonable suspicion of the wilful or intentional targeting of civilians or civilian objects or the launching of an attack where the expected civilian injury or damage to civilian objects is excessive in relation to the military advantage anticipated. But in her latest report on the Iraq/UK cases quoted above, the ICC Prosecutor notably concluded that ‘…new information available does not alter the previous determination that, in the absence of information indicating intent to kill or target civilians or civilian objects, or cause clearly excessive civilian injuries, there is no reasonable basis to believe that war crimes within the jurisdiction of the Court were committed by British armed forces in the course of their military operations not related to the context of arrests and detentions.’
The IHL obligation to take precautions in attack, however, is not limited to the avoidance of war crimes but is governed by the need to take constant care to spare the civilian population and the requirement to take all feasible precautions in the choice of means and methods of attack in order to avoid, or at least minimise, civilian collateral damage. Appropriate investigations are required to suppress violations of this obligation and in furtherance of the general duty to respect and ensure respect for IHL – not least in avoiding targeting errors or carelessness (or indeed recklessness which does not meet the Rome Statute standard for criminal responsibility).
A well-known case from the war in Afghanistan illustrates the point. In September 2009, up to 100 civilians were killed in Kunduz when a US fighter jet destroyed two fuel tankers that had been hijacked by Taliban insurgents. The strike was called in by a German Bundeswehr commander who feared that the tankers might be used as a bomb to attack a NATO base. German prosecutors undertook a criminal investigation but no charges were brought against the commander on the basis that his actions were reasonable given the information available to him at the time. A military investigation, however, found that the intelligence had been misleading and that the perceived threat could have been dealt with by ground troops rather than an aerial attack. There was no war crime, but the consequences in terms of loss of civilian life could hardly have been more serious.
What implications are there for air campaigns such as those over Mosul and Raqqa? Precautionary measures, including obtaining adequate information to verify the target as a military objective, the provision of advance warning and the choice of alternative means and methods of attack, require commanders to obtain detailed information in advance of, and during, an attack. When civilian casualties are incurred (either unexpectedly or expectedly) an investigation is required to find out what happened in order to establish whether there was a violation of the obligation to take feasible precautions and to enable an informed decision to be made about the risk to civilians in the next attack(s). Commanders’ decisions may be judged on the information available at the time, but they cannot be isolatedfrom the feedback loop. Even if incidents of unexpected civilian casualties are ascribed to military error, their frequent repetition gives rise to the suspicion that lessons have not been learnt from past practice, that all feasible precautions have not been taken and therefore that a violation of IHL may have occurred, albeit one which may not meet the relevant standard of mens reato entail individual criminal responsibility.
At the end of 2008 the International Security Assistance Force in Afghanistan established a civilian casualty tracking cell to,inter alia, ‘demonstrate proportionality, restraint and utmost discrimination in the use of firepower; [and] acknowledge civilian casualties immediately and transparently investigate allegations rapidly’. The more recent practice of international coalition forces in Iraq, Syria and other theatres appears to show a retreat from this standard. At the same time, theunderstandable tendency of the media (and some human rights NGOs) to focus on headline-grabbing allegations of war crimes may divert attention from other investigatory obligations under IHL with respect to military operations which result in avoidable civilian deaths.
This post has noted only a few of the very wide-ranging obligations under international law to investigate civilian deaths in armed conflict (for more details, see my chapter in The Grey Zone). Surveying UK practice in Iraq, particularly with regard to investigations of alleged violations in southern Iraq in 2003-2009, it is difficult not to conclude that the UK’s approach has been dominated by a series of long and sometimes repeated criminal investigations into the conduct of relatively low-ranking service personnel, that have resulted in only a handful of convictions to date (despite the fact that serious abuses did indisputably occur, not least in the case of Mr Mousa). Such an approach, including the limitations on transparency it entails, is hardly conducive to the swift correction of mistakes in military planning and control, and the wider implementation of lessons learned for civilian protection.
Although the suppression of war crimes and other serious violations requires parties to conflict to use criminal sanctions, many IHL investigation obligations under both Hague and Geneva law are not conceived as criminal investigations ab initiobut rather as fact-finding exercises to improve IHL compliance and address the needs of victims. This is particularly pertinent with regard to the current generation of high-intensity air campaigns in the Middle East, which have resulted in high levels of civilian casualties. Where the facts in specific incidents indicate the possible commission of a war crime, a criminal investigation must be initiated. But given the UK’s apparent difficulty of pursuing criminal cases even involving serious violations committed against detainees, the chances of a successful conviction in relation to a violation committed as part of an aerial bombardment would appear to be remote. The danger in such situations of an over-reliance on criminal investigations is to encourage the misconception that where there is no crime (or no realistic prospect of conviction for a crime) there is no violation, and effectively to green-light a strategy of attack that may pay due attention to avoiding the commission of war crimes but nonetheless has a calamitous effect on the security of civilians. Conversely, greater attention to wider investigatory obligations under IHL might lead to improved precautionary measures in attack and to fulfilling the right of families to the know the fate of their relatives.