Who Is This Book For?
This publication is intended as an accessible resource for anyone interested in how international law applies to the UKās 1 armed forces and how our institutions respond to allegations of unlawful conduct. No prior knowledge of international law is required since it is important that policymakers, journalists, rule of law practitioners, and lawyers, scholars and students specialising in other fields or other countriesā experiences can engage with this topic. I hope the book will encourage readers in the UK, including forces personnel and the general public, to ask more questions of our policymakers and commentators who propose changes to the way our laws, policies and institutions currently deal with alleged military misconduct overseas. Decisions on these matters must be evidence-based and that is more likely if the debate is depoliticised and democratised.
The next chapter will highlight current developments that throw UK investigations into the spotlight, including Brexit and proposals for a British Bill of Rights. Chapters 3 and 4 will familiarise readers with the UKās international obligations requiring investigation of alleged military misconduct, how these are reflected in national law and the role that service (military) law plays in regulating the conduct of UK armed forces. We discuss UK ātruth-seekingā efforts more widely, the pros and cons of other mechanisms of investigation such as inquests and public inquiries, and the challenges posed by domestic laws on freedom of information, data protection and official secrets. Chapter 5 takes a tour of the roles and powers of the individuals and institutions involved in criminal investigations, from commanding officers to specially trained civilian and military police. Newly declassified documents (reproduced in the Appendix) show the guidance given to investigators. We also look at what happens after the investigation, including decisions not to prosecute. In Chapter 6, the real-life challenges of investigation are discussed, with input from UK experts, including former senior military and civilian prosecutors, who provide reflections on the obstacles and advances of recent years. We also look at some of the major investigations of the post-1945 era, from post-war Germany to Iraq. We close with Chapter 7 , reflecting on the issues most likely to determine whether the UK can meet the challenge of investigating these crimes.
What Is Accountability?
Accountability is common shorthand for responses to crimes and human rights violations, but it has no universally accepted definition. It can be seen variously as a legal, moral and practical concept. At its narrowest, it means holding individuals legally responsible for their behaviour and imposing some form of sanction on them if that is warranted. In its widest sense, it is sometimes used to express any concept of institutional and even societal recognition of harm caused. In practice, the search for accountability usually involves diverse official and unofficial mechanisms to understand, expose, sanction and prevent further wrongdoing.
When dealing with war crimes and crimes against humanity (including genocide), accountability is frequently described as āthe absence of impunityā, largely because a working definition of impunity exists, thanks to Louis Joinet and his Set of Principles to Combat Impunity adopted by the United Nations General Assembly in 1977 and updated in 2005: 2
Impunity is a failure of States to meet their obligations to investigate violations, take appropriate measures in respect of the perpetrators, particularly in the area of justice, to ensure that they are prosecuted, tried and duly punished, to provide the victims with effective remedies and reparation for the injuries suffered, and to take steps to prevent any recurrence of such violations.
We might say then that accountability is achieved in any particular case when states have exercised reasonable efforts to take these appropriate measures. Finally, while some view accountability as causally linked to democracy, the principal underlying rationale of efforts to combat impunity in international legal instruments is more narrowly focussed: reckoning with a violent past better equips societies to prevent recurrence future crime. The former head of the UK Service Prosecuting Authority stresses, āAccountability demonstrates the health of a system in a modern civilisation. It is not a necessary evil required by international conventionā. His successor and current Director of Service Prosecutions warns that words require action: āReviews of military operations to ensure their compliance with the law can be a painful, expensive and lengthy process. But because of the interests at stake it has to be doneā. 3
The focus in this book is on the investigation of war crimes and related human rights abuses. The book does not deal with the crime of aggression or accountability for political decisions to go to war, which are expertly analysed elsewhere. 4 Since our focus is investigation, reparations and prevention are likewise not covered in this volume. 5
Why Investigations?
Why do investigations matter? In recent decades, there has been an unprecedented proliferation of international criminal law and institutions and of human rights litigation before domestic courts and regional bodies. 6 The level of knowledge and expectation among victims and their representatives is also increasing, meaning not only more but better-prepared claims against state institutions worldwide. Legal claims and journalistic coverage are now aided by scientific advances from mobile phone camera apps 7 to social media platforms to satellite imagery, all of which make it easier to document and share potential evidence of war crimes and human rights abusesāeven in the midst of war. The use of drones presages an era of automated warfare in which human decisions may become ever more physically remote from the battlefield. 8 When allegations of crimes arise, armed forces, justice systems, policymakers, victims and civil society groups must navigate this complex, ever-changing landscape. States with a reputation for upholding international law will be constantly working to clarify what that law requires of them and finding appropriate domestic laws and mechanisms with which to do so. Investigation of alleged wrongdoing is pivotal to their success or failure.
Our discussion focusses on alleged killings and mistreatment when they amount to war crimes, or torture and other cruel inhuman or degrading treatment or punishment. We will look at the laws, institutions and mechanisms the UK has in place to respond, particularly its service (military) justice system. 9 The emphasis is on the Royal Military Police, part of the British Army, rather than the service police forces of the Royal Navy or Royal Air Force. This is primarily because the majority of incidents and the most high-profile allegations of such crimes in the last six decades have involved the Army.
Why Focus on Military Misconduct?
British forces have been victims of very serious crimes of the same nature as those we will d...