Coalition operations

Multinational operations create additional levels of complexity for UK personnel, especially where there is a joint targeting list or a joint targeting cell. Friction can be overcome if those working together agree that where there is contradiction or confusion between respective rules of engagement, the most restrictive criteria must apply. The situation will also be easier if coalition partners are able to accept that sufficient national scrutiny has taken place in rela-tion to target nominarela-tions. In order to achieve this in the framework of a coalirela-tion operarela-tion, the UK will place its own personnel at each level of the target nomination process, to ensure compliance with UK policy and legal obligations.

That said, it is not always straightforward: if target lists are not shared until the majority of target development work has been completed, it may result in coalition partners having very little time to assess the target selection and identify areas of concern. Sometimes, it can be very difficult to confirm that the targets meet each coalition partner’s definition of military objective and their collateral damage criteria. Yet, it must be kept in mind that ultimately the UK targeting staff remains responsible for ensuring that targets assigned to UK assets fully comply with the UK’s political, legal and military direction and obligations.

Last but not least, coalition interoperability issues can arise, even at the lowest level. An example is actions in self-defence in a non-international armed conflict. In this situation UK forces may only open fire under self-defence against a person if that person is committing or about to commit an act likely to endanger human life, and there is no other way to prevent that danger. However, as you may be aware, the United States (US) – with whom we have often partnered – has a wider definition of self-defence. If the UK are asked to provide lethal fires in support of US forces, UK armed forces must ensure that they meet the UK’s definition before engaging.

7. Investigations

How do we ensure compliance with the rules of the law of armed conflict? This is done through training, implementation of doctrine and procedures and accountability. When things go wrong, it is important that transparent and effective investigations are carried out as soon as possible.

The UK armed forces, like many armed forces, are no strangers to scrutiny over how the UK con-ducts its own investigations into allegations that UK forces have breached the law of armed conflict. Following cases in the European Court of Human Rights (ECtHR), the UK enacted the 2006 Armed Forces Act. The Act, in its Section 113, requires a commanding officer to alert the independent Service Police if he/she is aware that offences such as murder, manslaughter, grave breaches of the Geneva Conventions and offences under Section 51 or 52 of the Interna-tional Criminal Court Act 2001¹ may have been committed. Under Section 116 (4), the Service Police is not permitted to dispose of such cases without consulting with the civilian Director of the independent Service Prosecutions Authority.

Despite these statutory safeguards, the UK’s investigative procedures have been criticised by the ECtHR². More recently, the Al-Sweady public inquiry³ has made comments on the UK’s post-incident fact-finding and investigation process. The inquiry has said that the UK’s procedures may still be deficient in a number of areas, principally because of the significant decision-making power granted to the commanding officer who, they say, lacks sufficient independence and impartiality. The current position affords the commanding officer discretion not to inform the Service Police, where there is no known breach of the law or rules of engagement. For example, if the commanding officer considers that only positively identified enemy forces have been killed or injured, and that there are no grounds to suggest that civilians may have been killed or injured as a result of the attack, the commanding officer does not need to refer the matter to the Service Police. The Al-Sweady inquiry was also concerned that the time frame for fact-finding and initial assessment has the potential to frustrate a prompt investigation by the independent Service Police. The inquiry has made nine recommendations, one of which relates to serious incident investigations. Recommendation 4 states that

‘A shooting incident policy should be drafted which is achievable in theatre, which is compliant with Article 2 of the European Convention on Human Rights [ECHR] and which

1 Section 51 (1) of the International Criminal Court Act 2001: ‘It is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime’.

2 For more information, see Al-Skeini and others v. The United Kingdom (2011).

3 The Al-Sweady public inquiry considered allegations that Iraqi nationals were detained after a fire-fight with British soldiers in Iraq in 2004 and unlawfully killed at a British camp (i.e. Camp Abu Naji).

enables the ascertainment of the relevant facts leading up to, during and consequent upon the Shooting Incident by an independent body such as the Royal Military Police within a time limited but reasonable period after the Shooting Incident’.

UK policy requires that a serious incident report be produced in respect of every incident where shots or munitions employed by UK’s conventional forces are known to have resulted in death or injury. The report must detail the type of evidence and information that should be collated and also gives instruction to the commanding officer in relation to whether further investiga-tion is required and gives the following guidance:

• The commanding officer is permitted to take no further action in the event that he con-siders that only positively identified enemy forces have been killed or injured and there are no grounds to suggest that civilians may have been killed or injured as a result of the action of UK forces (or that there has been a breach of law or the rules of engagement).

• The commanding officer must initiate a Shooting Incident Review in circumstances where it appears that civilians may have been killed or injured by UK Forces (or those operating under the UK’s command) but where information suggests that they acted lawfully in accordance with the Rules of Engagement. There are time limits on the Shooting Incident Review, which is to be completed within 48 hours and forwarded to the relevant Higher Authority within 14 days of completion. Before a proposal not to conduct any further investigation is authorised, the Force Provost Marshall must be consulted. Contrary to the views of the Higher Authority, they are able to decide that the matter is in fact to be subject to investigation.

• In all other circumstances, the commanding officer must inform the Service Police within 24 hours. In some circumstances where a Shooting Incident Review has taken place, the incident will be referred to the Service Police for investigation.

Accountability and the requirement to conduct timely, transparent, thorough and effective investigations is an important legal obligation and re-enforces the obligation to take all feasi-ble precautions to verify that a target is a valid military objective. This also explains why the targeting procedures to achieve this are extensive and comprehensive.

Practically speaking, whether it is possible to conduct a Service Police investigation into every UK targeting incident resulting in death or injury, particularly in highly kinetic environments or potentially complex urban situations, remains to be seen. However, we must strive to fulfil the obligation and do everything that is reasonably practicable.

Conclusion

It is imperative to take all reasonable precautions to verify targets as a military objective in order to ensure that the principles of humanity, distinction and proportionality are prop-erly satisfied when conducting military operations. This obligation is only heightened in the extremely complex nature of urban operations where greater care to ensure compliance is required. Failure to do so runs contrary to military necessity, which has the aim of achieving the military objective with the minimum force required as soon as possible. Failure to comply with the principles of IHL will simply exacerbate conflict and prolong the misery and anguish caused by conflict.