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

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

Author: Claire Simmons
Publisher: Routledge
ISBN: 9781032415673
Published In: April 2024
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

List Price: RMB 1,658.80

RMB 1,609.04 Save RMB 49.76 (3%)

Download Order Form

Add to Wishlist
| Add to Compare

Description
Contents

Details

An allegation is made that a war crime was committed by a soldier during a conflict. Who should investigate the allegation? How should they investigate? This book explores a topic of critical importance in legal and policy discussions surrounding the accountability of military operations in armed conflict, and problematises some presumptions that are often made about the topic.

The work provides the international legal framework necessary to address these questions and establishes the precise standards of independence and impartiality as applicable to investigations in armed conflict. It questions the assumption that the standards of independence and impartiality of investigations should be measured in the same way that we measure these standards for judges, courts, and tribunals. It also explores the ways in which military institutions and culture, as well as the context of armed conflict, may impact the effectiveness of investigations or the perception of justice by those affected. By demonstrating the precise ways in which military investigations can contribute to, or hinder, the effectiveness of investigations, the book clarifies States’ responsibilities with regards to their accountability efforts for serious violations of international law in armed conflict.

The work will be a valuable resource for academics, researchers and policy-makers working in the areas of international humanitarian law, international human rights law as well as political science and military ethics.

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

Browse Books

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

Free delivery Hong Kong?

Details

You may also be interested in these books:

What Our Customers Say?

Browse Books

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

Free delivery Hong Kong?

Details

You may also be interested in these books:

What Our Customers Say?

video title