It is highly important to have internationally recognized standards in investigating and prosecuting “potentially unlawful deaths”—an issue that is well recognized in the Foreward of the recently updated Protocol on Investigation of Potentially Unlawful Death (the “Minnesota Protocol”), as well as in Christof Heyns’ piece published at Just Security on Wednesday. As Heyns points out, however, the Protocol deals primarily with investigations outside the conduct of hostilities. Unfortunately, for the norms of human rights to truly have impact, and for civilians to be protected, States must find a way to apply the Protocol during the conduct of hostilities – when it often matters most, but also when it can be most difficult to apply as a practical matter.

Paragraph 21 of the Protocol requires a State to “conduct a full investigation and prosecute those who are responsible” when there are “reasonable grounds to suspect that a war crime was committed.” (For more on this, Nathalie Weizmann’s excellent 2015 Just Security article discusses when international law requires countries to investigate war crimes). Paragraph 20 of the Minnesota Protocol recognizes that conducting investigations during armed conflict may pose “practical challenges,” but gives short shrift to the realities of conflict as well as to the principles for which the Protocol stands in such situations. Investigating allegations of unlawful deaths “promptly, effectively and thoroughly, with independence, impartiality and transparency” is a monumental task at any time; doing so during armed conflict – with or without resources readily available – is even more so.

In 2012, I was the lead prosecutor in the military court martial of Robert Bales, a US Army soldier who eventually pled guilty to murdering sixteen Afghan civilians in an event referred to as the “Kandahar Massacre.” The reports of Bales’ crimes gained immediate international attention, and conducting an investigation was a priority for the US military. At the time, there were still nearly 100,000 American troops on the ground in Afghanistan. The available resources included a detachment of American military criminal investigators at Kandahar Airfield, less than 50 kilometers from the crime scene; a local ability to conduct autopsies, if given the opportunity; and a prosecution team from the US that was quickly dispatched to Afghanistan to guide the investigation. In short, conditions were as good as they were going to get to facilitate a “full investigation” as required by the Protocol.

Despite these resources, it took nearly three weeks for investigators to get to the crime scene. There were legitimate fears of retribution from hostile forces in the area (one Afghan investigator was killed the day after the murders when local law enforcement tried to visit the area), and rumors swirled that the victims’ homes were lined with IEDs. American investigators were finally able to visit all four crime scenes, but not without the support of a nearly company-sized security detail, including helicopter gunships, reallocated from other combat missions. Though evidence was gathered that connected Bales to the victims, all four homes had been swept nearly clean (and the evidence that had been gathered by Afghan criminal investigators would not have withstood the evidentiary requirements of American courts).

Events like the Kandahar Massacre, where the crime was so horrific that it mobilized both military and political will, might be an outlier, but they serve as an effective benchmark: Conducting an investigation during wartime – particularly one that is, as Weizmann points out, “bona fide in nature, prompt, independent and impartial” – is hard. Here’s the reality: Wartime investigations that are not prompt are nigh impossible to prosecute successfully, and a State simply cannot counter impunity without successful prosecutions.

So how does a State respect the principles of the Protocol, and the human rights of civilians caught in conflict zones around the world, under the adverse conditions of wartime – especially when those conditions are further compounded by a lack of resources and accessibility; a potentially uncooperative host nation; evidentiary challenges; and lack of competent personnel (more importantly, competent personnel willing to go to war zones)? How does the US, specifically, adhere to investigative norms when involved in conflicts where there are few or no US personnel on the ground? How do US forces ensure accountability when partner nations are complicit, particularly when those partner nations lack both the political will and the technical expertise to investigate criminal allegations adequately?

To compensate for the inability to comply with the Protocol, the US – both through its own forces and when working with partners – must build the capacity for future compliance—meaning planning and preparing for future investigations and prosecutions. For example, the US and its partners must make post-strike or Battle Damage Assessments that account for civilian harm the standard, rather than the exception. Soldiers must understand the moral importance of protecting civilians, which includes ensuring that illegal acts are timely and properly reported. Commanders as well as individual soldiers must understand the importance of preserving evidence of crimes, and the prospect of future trials.

US forces regularly conduct investigations (and, frankly, investigations of investigations) into criminal allegations, and Army Regulation 15-6, the bible for conducting investigations, is constant in all theaters of operations. But an investigator’s handbook can be largely irrelevant if there are no forces on the ground to conduct an investigation, or if there is no way to access a crime scene. This must be compensated for by planning in advance – what local actors or agencies possess the competence or expertise? What non-governmental or civil-society organizations are available to assist in gathering evidence? Even some hazy evidence can be better than none, particularly when gathering evidence that might be useful at a later date.

 The Protocol is an important source of guidance, and deserves endorsement as a much-needed step in making real a global commitment to accountability. Impunity corrodes the legitimacy of the laws and institutions that help to protect civilians and ensure peace. But those who are committed to this greater project’s success must ensure that the recommendations can be implemented in practical terms, first by candidly acknowledging the practical challenges, and then by pressing States to build the capacity and allocate the resources needed for severely complicated circumstances. An honest appraisal of a State’s willingness and ability to meet its obligations will require a clear-eyed assessment of its capacities to do so in wartime.


Photo: The Carabinieri Corps, Italy’s dual police and military force tasked with training Iraq’s police force during a crime scene class, October 5, 2016 – Photo by Staff Sgt. Alex Manne