Understanding all sides in the law of armed conflict

Professor Noam Lubell, from our School of Law, has co-authored a comprehensive set of international guidelines on how to investigate allegations in armed conflict. In this blog he explains the challenges he had to overcome to provide states with clear guidance on how to investigate violations of humanitarian law in war zones.

Strong relationships across the spectrum

One of the major advantages of being an academic lies in the ability to work on topical issues while maintaining a degree of independence. This is particularly noticeable when working on matters in which the key stakeholders can sometimes appear to have opposing interests.

The ability to work with all sides has always been one of my primary objectives when engaging in research and impact in the field of international humanitarian law, also known as the law of armed conflict.

Owing both to my personal and professional background of experience across multiple perspectives in relation to conflict, I have developed strong working relationships across the spectrum – with major humanitarian and human rights organisations seeking to protect victims of conflict, as well as with government and military bodies, and inter-governmental organisations. This has included, for example, providing regular training sessions in humanitarian law both to human rights staff at non-governmental organisations, as well as delivering training to government and military lawyers.

The positive working relationships and the trust built over the years has also allowed me to utilise this in order to create multi-stakeholder projects, aimed at promoting and enhancing respect for humanitarian law.

In 2014, with the support of The Geneva Academy of International Humanitarian Law and Human Rights (where I held the Swiss Chair of International Humanitarian Law until 2019), I initiated a new project focusing on investigations of violations of international humanitarian law. A major area of concern with relation to protection during conflict has been the lack of detailed law relating to investigations of war crimes and other violations.

Can impartiality and independence be maintained?

The international law of armed conflict contains an implicit requirement for investigating violations, but no detail on how it is to take place. Simply transposing domestic and international human rights processes into armed conflict creates many challenges. Chief among them is the problem of using a civilian-based investigative and judicial process in the midst of a war zone: the police do not usually operate in these areas (especially in an overseas conflict), securing a crime-scene on a battlefield in the midst of hostilities can be impossible, and securing forensic evidence can be equally difficult (especially following air strikes in an area that is not under the state’s control).

Questions have even arisen as to what it is that requires investigation – human rights law tends to assume that any death should be investigated, whereas humanitarian law accepts in advance that certain casualties are acceptable and lawful, and most militaries do not expect to investigate every killing of an enemy soldier on the battlefield. Additional challenges emerge from questions surrounding the appropriateness of military investigative systems, and how and whether independence and impartiality can be maintained if the military is investigating its own actions.

Creating new international guidelines

The project, which took place over a period of five years, sought to create new international guidelines for investigating violations of humanitarian law. Extensive research took place, with a full-time researcher (Claire Simmons) based at the University Essex. However, for this to be more than an academic exercise and for it to have real impact on the ground, we needed to ensure active participation and support from multiple stakeholders.

Financial support was provided by the Swiss Foreign Office (with later supplementary support from the Defence Ministries of the Netherlands and France), and five annual expert workshops took place. At these workshops we had the participation of participants from dozens of countries including the most senior legal advisors from foreign and defence ministries, and high-ranking military officers. Equally important, we also had participation from major human rights and humanitarian civil society organisations, and UN human rights officials.

And, of course, there were a number of academic experts there too. Half-way through the five-year period, the International Committee of the Red Cross (ICRC) joined as official partners, and one of their Senior Legal Advisors, Jelena Pejic, joined me in co-directing the project together.

Listening to all sides

During the workshops and communications throughout the five years, I found that as much as the research side was important, equally crucial – and perhaps even more so – was my role as a facilitator working with all these different stakeholders. As one can imagine, discussions of investigating violations in conflict that involve both senior military lawyers as well as human rights organisations, have the potential to be a tense and confrontational affair.

The goal of the project was not, however, to engage in a debate over rights and wrongs, but rather to produce a set of guidelines that civil society organisations would see as able to promote and enhance effective investigations, while also being a set of standards that states and militaries would accept as practicable and would aim to implement in their own investigations. Accordingly, I often found myself not necessarily advocating my own view, but taking the role of listening to all sides and attempting to come up with formulations that everyone could work with, while not losing sight of the ultimate goal.

The guidelines were published by the ICRC and the Geneva Academy in 2019, and while the participants (who were there formally only in individual capacity) were not asked to explicitly endorse the guidelines, the reception has been overwhelmingly positive.

A number of militaries have already begun to take the guidelines into account in their own practice, and we are now regularly being asked to present and advise on implementing the guidelines to governments and militaries around the world. The guidelines are being relied upon in cases before international courts, and the UN Secretary General held our Investigations Guidelines as the new international benchmark for all States investigating violations during armed conflict.

Notably, the fact that the ICRC – the most important humanitarian organisation in the world – was a project partner, has meant that the guidelines are now being used by the ICRC in its engagement with parties to armed conflicts worldwide.