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War crimes allegations and the UK : towards a fairer investigative process
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Williams, Andrew (2020) War crimes allegations and the UK : towards a fairer investigative process. Legal Studies, 40 (2). pp. 301-320. doi:10.1017/lst.2019.34
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Official URL: https://doi.org/10.1017/lst.2019.34
Abstract
War crimes allegations have dogged the UK military for decades. Yet there is no settled process to deal with them. Different legal responses deployed have all suffered from complaints of unfairness. This paper proposes foundations for a more satisfactory approach based on an existing three-part consensus. First, that norms governing individual and systemic conduct in military conflict are relatively undisputed; secondly, that the state has a non-negotiable investigatory duty should a suspected breach occur; and thirdly, that any investigation should take into account the context within which it is conducted. The paper then advances three propositions: (1) first order principles of practicability, expertise, and investigator independence should provide the non-negotiable foundations of any response; (2) second order or subsidiary principles including promptness, adequacy, reasonable transparency, and respect for basic standards of natural justice should apply when practicable; and (3) a standing institution designed to comply with the first and second order principles would provide a fairer process for all participants (accused, victim and the wider national and international communities) whilst also fulfilling coherence and legal certainty requirements. The paper concludes that current structures cannot fulfil these demands and it explores the basis for a better alternative.
| Item Type: | Journal Article | ||||||||
|---|---|---|---|---|---|---|---|---|---|
| Subjects: | H Social Sciences > HV Social pathology. Social and public welfare J Political Science > JX International law K Law [Moys] > KC International Law |
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| Divisions: | Faculty of Social Sciences > School of Law | ||||||||
| Library of Congress Subject Headings (LCSH): | War crimes , War crimes -- Great Britain, War crimes (International law), War crimes investigation, War crimes investigation -- Great Britain, Crimes against humanity -- Law and legislation , Crimes against humanity -- Law and legislation -- Great Britain, War crime trials , War crime trials -- Great Britain, War and crime , War and crime -- Great Britain | ||||||||
| Journal or Publication Title: | Legal Studies | ||||||||
| Publisher: | Cambridge University Press | ||||||||
| ISSN: | 0261-3875 | ||||||||
| Official Date: | June 2020 | ||||||||
| Dates: |
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| Date of first compliant deposit: | 6 November 2019 | ||||||||
| Date of first compliant Open Access: | 12 November 2019 | ||||||||
| Volume: | 40 | ||||||||
| Number: | 2 | ||||||||
| Page Range: | pp. 301-320 | ||||||||
| DOI: | 10.1017/lst.2019.34 | ||||||||
| Status: | Peer Reviewed | ||||||||
| Publication Status: | Published | ||||||||
| Publisher Statement: | This article has been published in a revised form in Legal Studies [http://doi.org/XXX]. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. © copyright holder. | ||||||||
| Access rights to Published version: | Restricted or Subscription Access | ||||||||
| Copyright Holders: | © The Society of Legal Scholars 2020 | ||||||||
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