Retired United States General David Petraeus added an important international voice to a chorus of senior United Kingdom political leaders, military commanders, veterans and retired soldiers who have expressed concern about the impact that investigations into alleged misconduct in Northern Ireland, Iraq and Afghanistan are having on the British military. General Petraeus’ comments center on the “judicialization” of conflict; the increasing friction between human rights and humanitarian law; and the effect such developments will have on operational effectiveness if the United Kingdom cannot “reform the legal framework within which it fights, and restore the primacy of the law of armed conflict.” A particular concern is the European Court of Human Rights’ displacement of humanitarian law by human rights law.

Certainly, observing from the other side of the Atlantic it is easy to see that the British armed forces are undergoing accountability fatigue.  The Defence website set up to help veterans indicates that serving and retired Army personnel are involved in legal processes arising “from legacy operations including criminal investigations under the Service Justice System (SJS), civilian criminal investigations, civil litigation, inquests and, when directed, public enquiries.” Reviews of military conduct have included the Chilcott, Gibson, Al Sweady, Baha Mousa, and Saville inquiries, as well as the Iraq Fatality Investigations (IFI). Investigations such as those undertaken by the Iraq Historic Allegations Team (IHAT) and the Northern Ireland Historical Enquiries Team (HET) and successor inquiries have been directed by the UK Government. Further, United Kingdom courts, the European Court of Human Rights and the prosecutor of International Criminal Court (ICC) have become involved in aspects of the treatment of detainees.

The number of reported allegations, spanning both domestic and international operations, have been truly astonishing: over 3,500 and 551 allegations of abuse or torture of detainees for Iraq and Afghanistan respectively, and 354 incidents of alleged unlawful killing associated with Northern Ireland.  In the latter case some of these allegations stretch back to the 1970s. The track record of the authorities in laying criminal charges is not good. By June 2018 the Service Police Legacy Investigations team, which inherited the IHAT caseload, closed 88 percent of the files without charges being laid, with only 143 allegations remaining under review.  Clearly allegations must be properly vetted and investigated, however, these investigations, frequently set up to meet real and perceived requirements under the European Convention on Human Rights, appear to have adversely impacted individual soldiers and the military as a whole while achieving little. Maintaining confidence in military compliance with international legal obligations is essential. However, that goal may be at risk of being overshadowed by the negative perceptions these investigatory processes have created.

General Petraeus’ reference to the two main governing legal frameworks, human rights law and international humanitarian law (IHL), highlights a complex strategic conflict for primacy that has been taking place between interpreters of both bodies of law since the early 1990s. It is a conflict made more difficult by a human rights perspective that exhibits little confidence in the independence and impartiality of the military investigatory or judicial process, and prefers oversight to be carried out almost exclusively by civilian actors. The challenge manifests itself in disputes regarding the role human rights law performs during armed conflict, and the degree to which States and their military forces can properly regulate their own activities.

The conflict between these bodies of law finds its roots in the failure of the human rights backed 1977 Additional Protocols to the 1949 Geneva Conventions to gain universal acceptance; that the Protocols did not apply to the lower intensity conflicts the human rights community was particularly interested in; and there was a renewed desire by that community to remain separate from its IHL counterpart, which ended a previous effort through the Protocols to harmonize the two bodies of law.  In addition, the historic trend of a major reassessment of IHL treaties every 25 years had by the late 1990s been replaced with the view that the effort should be on implementing the existing humanitarian law.

At the same time international criminal law increasingly became a focus of the international legal community.  This emphasis on accountability saw the development of ad hoc international criminal tribunals and the 1998 Rome Statute of the International Criminal Court (ICC). It also stands out as a particularly strong form of “naming and shaming”. At the same time the human rights community acted to inject human rights law into the regulation of military operations that qualify as “armed conflict.” Debates erupted amongst human rights and humanitarian law advocates as to which body of law was the governing lex specialis, and as to the extent to which human rights treaty law had extra-territorial application to State armed forces engaged in complex contemporary armed conflicts.  As General Petraeus notes, the United States has taken aggressive action to avoid such international oversight. It is a trend that is reflected in a backlash primarily, but not exclusively by African States against the ICC, and in the failure of States to arrest the indicted President of Sudan.

What makes this debate academically fascinating, but practically frustrating and potentially operationally dangerous is that concerted efforts to resist the application of human rights law are inconsistent with the tactical challenges facing military commanders. Many of those challenges require the application of human rights law, or norms. Obligations such as maintaining order as an occupying power, the rescue of hostages seized by criminal gangs and thwarting crime-based funding for terrorist groups mean that military forces frequently engage in human rights based law enforcement even during armed conflict.  Importantly, the “law of armed conflict” itself is replete with human rights norms and obligations, and customary international human rights law has universal jurisdiction and therefore applies to all areas where military forces operate.  Moreover, it forms the subject matter of many investigations.  Indeed, the alleged abuse and torture of detainees is clearly prohibited under both bodies of law. The United States Army, Judge Advocate General, Operational Law Handbook, which “provides references and describes tactics and techniques for the practice of operational law,” has a whole chapter dedicated to international human rights law. The question is not so much whether human rights law and norms must be applied, but rather how they should be interpreted and applied under the circumstances of armed conflict.

However, problems arise when advocates or courts seek to impose a unitary human rights-based solution in conflict situations, or fail to acknowledge that military investigatory bodies can meet international legal requirements of independence and impartiality.  In the case of the UK there is good reason to be concerned. The European Court of Human Rights, to which that country is likely to remain subject following “Brexit,”, has been at the forefront of the effort to impose a predominately human rights law based regulation of contemporary conflict. This can be most obviously noted regarding the use of force. In addition to the extra-territorial application of that Convention to external conflicts, the Court has, in respect of non-international conflict, uniquely applied human rights law as a “normal legal background” even when dealing with the use of airpower and artillery to suppress an “illegal armed insurgency.”  However, there is nothing “normal” about tactical situations where insurgent forces turn towns into fortresses, seek to shoot down aircraft, or conduct large-scale military action. While the Court has incorporated some IHL concepts into its analysis of use of force situations this has been invariably applied within the restraining principles of human rights law: a strict necessity test, using no more force than absolutely necessary, and the requirement that the force used is strictly proportionate. These human rights principles were not developed to regulate the conduct of hostilities.

A partially dissenting opinion in the 2017 Beslan School Case perhaps best reflects that court’s strict adherence to human rights law. The judge stated he was satisfied the majority was faithful to the standards for the use of lethal force in large-scale anti-terrorist operations by “dealing with them as with any other law-enforcement operation and refusing to apply the paradigm of the law on armed conflicts to them.”  This approach was applied to a hostage rescue operation involving the use of flamethrowers, grenade launchers and tank main gun rounds against Chechen insurgents. In contrast, the European Court of Human Rights has more recently directly relied on international humanitarian law when interpreting the application of human rights law during inter-State conflict. Yet even here it was also careful to include the modifying words “so far as is possible.” Both human rights and humanitarian law apply during armed conflict.  However, this wording suggests a possible residual supervisory function for human rights law that is not justified by either the history or the widely accepted application of IHL.

In his excellent book on non-international armed conflict Sandesh Sivakumaran has noted “there should not be a rush to judgement that international human rights law holds the answer to all the problems.” It is not clear why the European Court could not, like its Inter-American counterpart does, apply humanitarian law when interpreting their human rights law mandate during non-international armed conflicts. Just as there is a contemporary concern over the militarization of the police, there should be a similar disquiet regarding human rights law overreach.

Operationally, General Petraeus has identified that an overemphasis on human rights law has made it challenging to operate with European nations in a Coalition environment.  For example, different national approaches toward the detention of insurgents in Afghanistan were evident when General Petraeus took action in 2010 to end the application to United States military forces of an ISAF rule requiring the release or transfer of detainees to Afghan authorities after 96 hours.  The 96 hour authority to detain has since been the subject of litigation in the United Kingdom in the Serdar Mohammed case, which highlighted a divide between nations such as the United States and Canada that have relied on a customary IHL basis for such detention and European ones requiring a European Convention on Human Rights justification. The UK court rejected an IHL basis and relied instead on a United Nations Security Council Resolution authority. The requirement for a UNSCR prompted Fiannoula Ni Aoiáin to note that a fragmentation and confusion over legal regimes could result where there is no UNSC involvement, and while the Convention and its due process requirements should not be abandoned “it may mean being better prepared to engage the application of the law of armed conflict and for human rights courts to show some humility in engaging the interface between both legal systems.”

A clear majority of States are not subject to the European Convention on Human Rights. Importantly, judicial decisions that do not accurately reflect the operational situation faced by security forces or fail to recognize the need to engage an enemy with levels of violence best regulated by IHL run a very real risk of undermining the credibility of the court. By contrast, civilian courts in other States, such as Canada, the United States, and Israel have demonstrated a greater willingness to apply IHL in the present security context.

Issues have also arisen regarding the appropriate means of conducting judicial oversight. There has been a trend by some human rights advocates to equate adequate independence with civilian judicial actors. It has even been suggested that military tribunals be abolished, or their jurisdiction restricted to military offences that would not include the abuse and torture of detainees. This viewpoint may be influenced by the European context where most civil law countries use civilian courts to exercise jurisdiction over the military, at least during peace time. However, this is not the “international” standard. The prioritizing of civilian judicial oversight can be contrasted with the Israeli Turkel Commission report which, after reviewing the mechanisms for examining complaints of violations of IHL in mainly common law countries, supported the use of military judicial processes for such investigations.

There is an essential role to be performed by both civilian and military accountability mechanisms.  However, in the UK experience there appears to have developed an unhealthy “us versus them” mentality, which can only further exacerbate the lack of confidence expressed by veterans and serving military personnel regarding legal oversight. The pushback extends to statements by the Prime Minister, Secretary of State, unionist and Conservative politicians that the Police Service of Northern Ireland investigation of legacy cases is wrongly focused on killings by the Army, even though this appears to be factually incorrect. Such negative responses must be assessed against factors such as the findings of the Iraq related inquiries, a recent civil court proceeding accepting that there was wrongdoing, and the important role legacy investigations can play in reconciliation. While many allegations have been called into question it also seems evident there were systemic issues that need to be addressed regarding the military treatment of detainees.

The British armed forces are highly professional and widely respected. Their commanders and legal advisors know that allegations of misconduct must be addressed.  Isolated criminal acts can occur in any organization, but large-scale allegations of abuse frequently reflect broader issues of leadership, military culture and ethics.  Unfortunately, during the post 9/11 period the torture and abuse of detainees has not been limited to the armed forces, with some civilian leaders, legal advisors and security agencies also being engaged in enabling or conducting such illegal activity. Civilian judicial systems have also struggled to hold perpetrators to account. That civilian engagement is not a panacea is evident from the havoc that has been created regarding the Iraq detainee investigations as a result of misconduct by a lawyer spearheading the identification of abuse claimants. The accountability solution cannot be found in a unitary application of human rights law or civilian judicial oversight.  It also cannot be addressed through denying the applicability of such law or denying the necessity for civilian oversight such as through public inquiries.

What is required is a balanced approach that recognizes both human rights law and IHL apply, and that the armed forces themselves have an important, indeed, essential oversight role to perform. It is a role that can be enhanced by taking steps to increase confidence, both within and outside the armed forces, regarding the independence of investigatory bodies. Other States have addressed issues of independence by creating a statutorily empowered uniformed Director of Military Prosecutions, setting up joint civilian/military inquiries, and even appointing foreign observers.  As stated, the problem is not human rights law, it is the interpretation of that law in a manner that reflects the needs of all stakeholders operating in a very complex and challenging security environment.


Photo: U.K. Ministry of Defence/Army