Impact: Establishing guidelines for investigations during armed conflict

The challenge

It's vital we investigate allegations during armed conflict: to ensure accountability of those responsible; to encourage respect for the law and prevent future abuses; to learn lessons and develop good practice; to provide redress for the victims; and to exonerate those falsely accused.

Despite agreement that these investigations should be undertaken where possible by the states concerned, a lack of detail about the international law, principles and standards relevant to these investigations, and differences in domestic legal frameworks and practices, have resulted in an inconsistent approach.

A clear need existed: to provide states with guidance on how to ensure that effective investigations take place.

What we did

In 2014, Professor Noam Lubell began the process of developing guidelines for states, their militaries and other domestic bodies, as well as to support the work of international actors engaged in this field.

This project was initiated by the Geneva Academy of International Humanitarian Law and Human Rights. From 2017, the International Committee of the Red Cross (ICRC) joined as project partners, with Jelena Pejic, Senior Legal Adviser at the ICRC joining Prof Lubell as co-lead. The ICRC is the primary organisation responsible for protecting victims of war and promoting respect for international humanitarian law (IHL).

Professor Lubell and Ms Pejic were supported by Claire Simmons, a Researcher at Essex Human Rights Centre and PhD candidate in Essex Law School.

The authors conducted extensive research, including on individual government’s legal and policy documents, and military manuals and regulations from across the world. They also looked at international treaty and customary law, the case law of international and domestic courts, academic literature, international organisation publications, and reports from non-governmental organisations.

They hosted five expert meetings and also engaged with these experts individually, focusing on the challenges of carrying out investigations in practice. Experts included senior government lawyers, military lawyers, academics, United Nations staff and individuals involved in this area through civil society organisations - a range of experts from Africa, Asia, North and South America, Europe, and the Middle East.

What we found

In October 2019, they published Guidelines on Investigating Violations of IHL: Law, Policy, and Good Practice. Rather than offering a blueprint, the Guidelines remain sensitive to existing differences, presenting instead: first, the legal and practical issues States should consider when establishing their systems; and second, a broad framework for investigations, and the legal principles and safeguards that should guide an investigation process. 

Their report is divided into four sections, covering: steps to take when considering launching an investigation; criminal investigations; administrative investigations; and general provisions.

The 16 Guidelines are each accompanied by a detailed commentary and provide guidance on the different aspects of investigations into violations of IHL, from the early stages of recording information and identifying the incidents that require investigation, through to the structural and procedural aspects of investigative bodies. The text presents a basis for the conduct of effective investigations, while taking into account the diverse legal and military systems that exist, as well as the legal and practical challenges that can arise. 

These Guidelines aim to bring much needed clarity, to secure respect for International Humanitarian Law, prevent future violations and enable redress for past victims.

What we changed

The guidelines were published in September 2019 and launched on 10 October in New York, before delegates from the UN General Assembly First and Sixth Commissions, UN agencies and other experts in an event co-organised with the Permanent Mission of Switzerland to the UN.

The Guidelines have already begun to influence the military and judicial systems of different States. The authors have been invited to provide training and workshops on implementing the Guidelines in countries all over the world. In May 2020, the United Nations Secretary General António Guterres, in his report Protection of civilians in armed conflict, endorsed the Guidelines as an international benchmark for ensuring effective investigations.

By improving and strengthening the practice of investigations of humanitarian law violations, these Guidelines are contributing to promoting the rule of law even in armed conflict, and improving the possibilities of redress for victims of conflict worldwide.