Military Investigations in Armed Conflict: Independence and Impartiality under International Law

Contents Acknowledgements Chapter 1: Introduction * Introduction * The problem with "militaryness" * Why focus on armed conflict? * What is an investigation? * Book outline * Conclusion Chapter 2: The legitimacy of military justice * Introduction * A brief historical overview of military justice o Basis of military justice: discipline o The "justice" part * Is it possible to compare military justice systems? o Defining military justice o The common/civil law divide: a useful problematic divide o "Disciplinary" versus "criminal" in the common and civil law systems o Comparing standards of fair trial and due process * The scope of military jurisdiction over serious violations of IHL and IHRL o Basis of the "military nexus" criticism o The "functional concept" of military jurisdiction o Jurisdiction over serious violations of IHRL and IHL * Conclusion Chapter 3: The obligation to investigate effectively under international law * Introduction * A duty to investigate under IHL o A comment on the interplay of bodies of international law o Ensuring the implementation of treaty provisions o A procedural duty under IHL o Investigations as effective remedies * A duty to investigate serious violations o Violations affecting physical integrity o Violations which are part of a pattern o Non-serious violations? * A duty to investigate effectively o The concept of effectiveness o Reasonable means o Purpose of the investigation * Conclusion Chapter 4: The independence and impartiality of investigations in relation to their effectiveness * Introduction * Defining independence and impartiality * The independence and impartiality of judges, courts, and tribunals o Legitimate governance and the rule of law o Impartiality o Independence * The independence and impartiality of investigations o Do investigations need to be independent and impartial? o Overall independence and impartiality as serving effectiveness * Assessing independence and impartiality for investigations o Is the investigator "implicated"? o Independence from those with responsibility o Independence and impartiality in light of the whole investigation * Conclusion Chapter 5: Military institutional challenges to independence and impartiality * Introduction * The effect of military hierarchy on independence and impartiality o The chain of command? o The impact of subordination and discipline o Other relationships in a hierarchy: command responsibility and "implication" o Nature of the offence: rotten apples or rotten institutions? o Too much independence? The matter of expertise * Military culture: loyalty, camaraderie, and the wall of silence o Good and bad loyalty o Impact on investigations o The scope of loyalty: "unit, corps, God, country"? o The role of appearances * Conclusion Chapter 6: The impact of armed conflict on independence and impartiality * Introduction * Reasonableness in armed conflict o Reasonableness in fulfilling international legal obligations o Reasonableness in IHL as balance between military necessity and humanity o How to measure reasonableness in independence and impartiality * Legal and practical obstacles to independence and impartiality in armed conflict o Jurisdiction: the impact on independence o Access to the scene and security: who can investigate? * Legitimacy in armed conflict: impact on the perception of independence and impartiality o Whose side are you on? o Addressing legitimacy concerns * Conclusion Chapter 7: When it goes wrong: Failures to investigate, patterns of violations, and systematic impunity * Introduction * A failure to investigate as a form of responsibility o Individual responsibility o State responsibility o Institutional implication * Patterns of problems affecting independence and impartiality o Patterns of violations implying a failure to investigate o Policy-related violations: Undue pressure from above o The scope of problematic biases affecting the impartiality of investigators o Systemic problems that don't affect independence and impartiality * Achieving independence and impartiality when investigating patterns of violations o The need for cross-cutting investigation in the context of a pattern of problems o Removing obstacles to independence and impartiality at a functional level o Creating meaningful justice: Perception of independence and impartiality * Systematic impunity and measures of last resort o Systematic impunity in the international legal regime o A measure of last resort: international mechanisms o The matter of "unable" * Conclusion Chapter 8: Conclusion * Introduction * Overview: Independent and impartial military investigations o The role of military justice systems in investigating violations of IHL o The independence and impartiality of investigations in relation to their effectiveness o Challenges to the independence and impartiality of military investigations o Safeguarding the independence and impartiality of military investigations * Going forward * Conclusion