Paper details
| Paper authors | Marnie Lloydd |
| In panel on | Protecting civilians in a changing world order |
| Paper presenter(s) will be presenting |
In-Person / |
Abstract
This contribution to the panel examines the New Zealand and Australian experiences of post-action military investigations, with particular focus on findings that highlighted deficiencies in transparency and reporting mechanisms within military institutions. Significantly, several jurisdictions required investigative journalism to expose issues and catalyse formal inquiries, demonstrating the inadequacy of existing internal oversight mechanisms. Comparable transparency challenges have emerged in the United Kingdom and in the Dutch inquiry regarding Hawija, suggesting these issues transcend national boundaries and military scale.
This contribution considers the recommendations that emerged from these inquiries and subsequent government actions (such as New Zealand’s Defence Force Order 35 on Civilian Harm and Policy Framework for the humane treatment of detainees in offshore deployments), and their implications for civilian protection and accountability. I will discuss how such post-action inquiries can highlight shortcomings in state practice on civilian harm and drive the establishment or improvement of preventive legal and regulatory frameworks. However, they also reveal that, whilst necessary, they have been challenging even for smaller States and become increasingly unwieldy for larger military powers. They therefore cannot substitute for robust preventive legal and regulatory frameworks designed to protect civilians from harm in the first place. Crucially, what emerges from the findings is the urgent and critical importance of integrating robust proactive preventive measures, civilian harm tracking and transparent reporting and investigation frameworks from inception.
This would reflect what the UN Secretary-General's 2023 Protection of Civilians report characterises as a 'fuller protection of civilians approach', moving beyond compliance and accountability towards comprehensive protective measures. But given the general background of the rapidly shifting world order and disheartening approaches towards international law, including a demonstrable growing lack of political will to respect and enforce IHL and soaring civilian harm statistics, and the particular background of developments in the United States, where once-promising civilian harm and mitigation strategies are being wound back, what does an ‘expanding understanding of the wider range of effective, legal, policy and operational responses’, as described in the panel description, look like in this setting?
Dr Marnie Lloydd is Senior Lecturer, Director of Postgraduate Studies, and Co-Director of the New Zealand Centre for Public Law at the Faculty of Law, Te Herenga Waka – Victoria University of Wellington (New Zealand), and an independent research consultant in the international humanitarian sector. Full profile available: https://people.wgtn.ac.nz/marnie.lloydd
