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.’ Read the rest of this entry…