Guidelines on Investigating Violations of International Humanitarian Law

Law, Policy and Good Practice

Investigations into alleged violations of International Humanitarian Law (IHL) are a necessary and vital component for compliance, accountability, and redress. And yet, despite the unquestionable importance of investigations, there is no detailed and agreed international standard for States to look toward, and no obvious source against which one can measure existing processes. The new “Guidelines on Investigating Violations of International Humanitarian Law: Law, Policy and Good Practice,” launched online today, seek to rectify this situation.

Under IHL treaty law, the duty to penalize grave breaches of the Geneva Conventions undoubtedly creates an obligation to conduct investigations into this particular category of violations. The requirements to “repress” and “supress” that exist in the context of other violations can also be read as necessitating investigations into alleged violations. Any detail beyond the general and inferred duty to investigate is, however, sorely lacking. This state of affairs was plain to see at an expert workshop held by the Geneva Academy of International Humanitarian Law and Human Rights in 2014, with a range of experts including many senior government and military lawyers, as well as NGO and UN experts. At the meeting, it quickly transpired not only that the practice among States in relation to both structural and procedural elements of investigations is significantly disparate, but also that there was no agreement as to the overarching standards and source of the obligation to investigate. The decision to embark upon a long-term (ultimately five-year) project to create new Guidelines was a direct outcome of this first meeting. The project was initially held under the auspices of the Geneva Academy, and in 2017, the ICRC formally joined as a partner. In addition to expert meetings and workshops with stakeholders from dozens of countries and institutions, the Guidelines are the result of continuous extensive research conducted over the five years. The following describes some of the challenges addressed, as well as a number of key findings from the Guidelines.

The dearth of detailed law on the subject meant that in order to achieve the level of comprehensive guidance necessary, the Guidelines needed to reflect a combination of law, policy, and good practice. Moreover, the legal sources that did have detail on investigations were often from the case law of human rights bodies. This presented a double challenge, both in relation to the debates of the scope of applicability of human rights law, as well as the practicalities and feasibility of equating peacetime domestic investigations with those that occur in an armed conflict (and doubly so in an extraterritorial setting). Rather than become mired in the intractable debates over the interplay between the two branches of law, the starting point of the Guidelines is that the existence of an obligation to conduct investigations must necessarily mean that all feasible efforts must be undertaken for such investigations to be effective. For the purposes of the Guidelines an investigation must be effective insofar as it should be capable of (1) enabling a determination of whether there was a violation of international humanitarian law, (2) identifying the individual and systemic factors that caused or contributed to an incident, and (3) laying the ground for any remedial action that may be required. We believe that this basic requirement for an effective investigation is correct, regardless of whether or not one relies upon human rights law. The Guidelines themselves, and the accompanying commentary, aim to provide information for how to achieve this aim.

One of the most complex challenges was how to create Guidelines with enough detail in order to be useful, and yet be able to be implemented by militaries and States with diverse legal, judicial, and military systems and structures. The Guidelines walk a difficult tightrope, balancing sensitivity to these differences, while presenting a detailed picture of what all States should be doing in order to ensure effective investigations of IHL violations.

Beyond the obvious discussion in the Guidelines of matters such as the independence of investigations, the research and expert meetings also evolved in less expected directions. One example of this was the lengthy discussion and ensuing Guideline in relation to the recording of military operations at the earliest possible time. This refers to the collection, documentation, and retention of information related to military operations. As with some of the other Guidelines, feasibility in context is taken into account, but this Guideline also serves as a good example of day-to-day procedures that must be in place on a regular basis regardless of any incidents requiring investigation. Without a system for recording military operations it may become extremely difficult to conduct adequate investigations when allegations do arise. As with many other aspects of the Guidelines, the structures, procedures, and process advocated are important not only for investigations of IHL violations, but can be equally vital for the military in terms of maintaining discipline and collecting information for operational lessons learned.

The 16 Guidelines and each of their commentaries aim to provide clarity across all phases of the investigative process, including the circumstances in which investigations should be triggered, the different forms investigations may take depending on the nature of an incident, and the principles and standards applicable during the investigation process. In addition to criminal investigations, which tend to receive more attention in the public eye, significant space is devoted to discussing administrative (i.e., non-criminal) investigations. Moreover, the Guidelines also stress the importance of considering State responsibility. Indeed, another of the notable findings of the background research and meetings was the fact that many States, even those with the more “sophisticated” investigative systems, often focused their investigations only on individual culpability, whether criminal or not. This creates a number of concerns. IHL obligations are a matter of public international law, and if violations have occurred then State responsibility may be engaged. The Guidelines clarify that somewhere in the process of investigating incidents there must be a point at which persons with the relevant expertise and authority are able to assess State responsibility. In addition, the investigations of individual incidents must occur within a structure and process that is capable of identifying whether a particular incident is, in fact, indicative of a systemic failure. For example, if an incident occurred as a result of a weapon malfunction or due to a misunderstanding of the rules of engagement, further investigation may be necessary to ensure that such incidents do not repeat themselves elsewhere. The Guidelines, accordingly, also have a section on systemic issues.

It is hoped that these Guidelines will provide a vital tool for all States seeking to ensure that their investigative structures and procedures are able to meet the requirements of conducting effective investigations into violations of IHL. It must also, however, be recognised that as with many other legal obligations, an element of good faith in discharging these duties will always be essential. For those situations when further scrutiny of the investigations themselves is required, these Guidelines should be equally valuable. 

About the Author(s)

Noam Lubell

Professor of International Law of Armed Conflict at the University of Essex, and Swiss Chair of International Humanitarian Law at the Geneva Academy of International Humanitarian Law and Human Rights. Follow him on Twitter (@nlubell).

Jelena Pejic

Senior Legal Adviser at the International Committee of the Red Cross (ICRC).

Claire Simmons

Researcher at the University of Essex and at the Geneva Academy of International Humanitarian Law and Human Rights.