2016 Joint Series on International Law and Armed Conflict: Chris Jenks on Coalition Operations & the Obligation to Investigate IHL Violations

In the third installment of our Transatlantic Dialogue Series, Chris Jenks discusses Coalition Operations and the Obligation to Investigate IHL Violations. Mr. Jenks is an assistant professor of law and directs the criminal justice clinic at the SMU Dedman School of Law in Dallas, Texas. Chris’ research interests focus on accountability norms during armed conflict. Prior to joining the SMU faculty, Chris served as an officer in the US Army for over twenty years, culminating in his posting as chief of the Army’s international law branch in the Pentagon. The views expressed in this article are the author's own and do not necessarily reflect those of the ICRC or the other blogs taking part in this series.

This post suggests that while the components of the obligation to investigate reasonably suspected international humanitarian law violations are, in most respects, well settled, their application in and to multinational coalition operations is under developed.  Thus far, that result seems to reflect not so much a lack of satisfactory answers on accountability in coalition operations but rather avoidance in asking the questions and acknowledging an inherent tension.  

Obligation to Investigate

A number of IHL instruments imply an obligation to investigate alleged violations. Each of the 1949 Geneva Conventions, taken together, require High Contracting Parties to enact legislation to provide effective penal sanctions for those persons committing or ordering to be committed a grave breach; to search for those who commit a grave breach; and to take measures necessary to suppress all acts contrary to the Conventions other than grave breaches. Additional Protocol I to the 1949 Conventions requires military commanders of High Contracting Parties, “with respect to members of the armed forces under their command and other persons under their control, to suppress and where necessary to report to competent authorities breaches….” Finally, the “unquestionable customary norm” from Rule 158 of the Customary International Law Study’s that “States must investigate war crimes allegedly by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects.”

Triggering the Obligation

As the Turkel Commission noted “[t]he duty to conduct an investigation whenever there is a reasonable suspicion of the commission of a war crime is well established in international law.”  Utilizing a reasonable suspicion standard recognizes Dick Jackson’s point that allowing a lesser standard to trigger the obligation to investigate would “likely prompt superfluous reporting and jam the system….”  Nonetheless, there is still a duty to examine, to conduct a fact-finding assessment, even in the absence of reasonable suspicion and per the Turkel Commission, “particularly where there has been an exceptional event or incident such as unanticipated civilian casualties.”

What Type of Investigation?

IHL is silent as to the type of investigations required. The ICTY in Halilović reminded us that “[m]ilitary tribunals established after World War II interpreted the superiors’ duty to punish as implying an obligation for the superior to conduct an effective investigation and to take active steps to ensure that the perpetrator will be brought to justice.” The Turkel Commission interpreted an effective investigation as “one that is capable of identifying those responsible and committing them to justice” and possessing sufficient indicia of “independence, impartiality, effectiveness and thoroughness, and promptness.”  At the same time, the Commission recognized that while “transparency is indeed desirable, as it enhances public scrutiny and contributes to accountability,” IHL does not, as a matter of law, require transparency.

Investigations and Coalition Operations

How then do those well-settled norms apply in and to coalition operations? Given the nature of coalition operations, the not surprising answer is the norms don't apply particularly well.  What is surprising is that this inherent tension does not receive more attention, particularly given the resulting ramifications on and for accountability.

A coalition is “an arrangement between two or more nations for common action.”  And according to U.S. military doctrine, the tenets for successful multinational operations are “respect, rapport, knowledge of partners, patience, mission focus, and trust and confidence.”

Coalitions come with obvious, known, plusses and minuses. On the plus side, the more nations involved the more the coalition reflects the international community. With increased nations participating comes increased resources, funding, equipment, and personnel. On the minus side, the more nations involved the greater the interoperability challenges, whether through language, culture, and/or equipment, systems, and processes not designed to work together.  Those pluses and minuses are inherent to coalition operations. In recognition of these challenges, long-standing coalitions like NATO have offices devoted to standardizing operations, but the scope of the difficulties interoperability pose renders their efforts perpetually aspirational.

An equally obvious, but less acknowledged, aspect of coalition operations is that while countries may be willing to subordinate parts of their military to a coalition to conduct operations, they reserve the exclusive ability to investigate and discipline their service-members. If not clashing, than the tension between the obligation to investigate and the nature of coalition operations in armed conflict seems inevitable.

Consider the following hypothetical. A non-international armed conflict occurring in State Z has spilled over into State Y. States A, B, C, and D are allies of Y. At Y’s invitation and request, A, B, C, and D are providing a wide range of military support as part of coalition military operations against an organized armed group (OAG) which operates in both Y and Z. Host nation Y is considered the leader of the coalition. The coalition recently conducted an air strike against a suspected OAG outpost located in an urban area of Z. However instead of hitting the outpost, the air strike destroyed a building 200 meters away that an NGO used to provide shelter, food, and medical assistance to civilians displaced from the armed conflict. Initial claims from the OAG, international media and coalition post strike battle damage assessment all indicate that there were civilian casualties, though the purported number of casualties varies significantly. On the day of the air strike, the coalition members played the following roles:

State          Contribution

A               Aircraft & pilots which dropped ordnance

B               Intelligence Analysis/battle damage assessment

C               Command of air operations center and air campaign

D               Ground crews which prepared aircraft including ordnance

Y               Overall coalition lead

At a minimum, there have been unintended civilian casualties during an armed conflict triggering a duty to examine. How many such untoward events would need to occur before there is a reasonable suspicion of an IHL violation such that an investigation would be required? And does the answer to the last question change if the composition of which countries forces are doing what on a given mission changes? IHL involves State obligations, so do the coalition members individually assess whether the results of the collective coalition action have crossed the reasonable suspicion?

Any effective investigation of the air strike would need to take statements and collect evidence pertaining to each step in the process that culminated in the unintended civilian casualties.  That would entail talking to, and ideally taking sworn statements subject to some kind of penalty, from members of five different States’ armed forces. To yield a coherent investigation there would need to be only one. Yet national political and policy concerns generally preclude one overarching investigation, whereby the coalition would be investigating military members from the countries participating in the coalition.

As a result State A might investigate the actions of its pilots, B might investigate its intelligence analysts and so on. But is that what an investigation “capable of identifying those responsible” looks like?

Some may think of this as merely reframing the aiding and abetting discussion, whether previously on EJIL Talk! or more recently on Just Security. But those discussions are further along on the temporal spectrum. And while certainly related, this post is about a different, lower, and earlier, threshold - that of investigating reasonably alleged or suspected violations.  

Ultimately, components of the obligation to investigate IHL violations are settled, yet the inherent challenges posed by or inherent to coalition operations seem equally clear.  If no other States were involved and State Y had performed all the tasks and functions associated with the airstrike, the international community would understandably look to Y to explain what happened, how and why. It cannot, yet seems to, be that in creating the coalition and dividing up those tasks and functions, as coalitions are designed and intended to do, that accountability has in a sense been disaggregated.  While that may accommodate the realities of a coalition, whether such a trade off comes at the expense of a measure of accountability warrants is a question we should be asking. 

Schedule of blog posts:

The joint blog series arising from the workshop follows on from our collaboration in hosting a similar series last year (see here, here and here). The Transatlantic Workshop is organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations (both directed by Dapo Akande), the Washington DC & London delegations of  International Committee of the Red Cross, the Houston College of Law (through the good offices of Geoff Corn), and the Robert S. Strauss Center for International Security and Law at the University of Texas (directed by Bobby Chesney).

Click here for the 2015 Series.

Click here for the 2014 Series. 

For ICRC's Customary IHL Database on Prosecution of War Crimes, click here