Civilians today face unprecedented risks in armed conflict, with compliance with the laws of war in crisis. UN figures show civilian deaths rising since 2019 and skyrocketing in 2023, with the number of women and children killed doubling and tripling from the previous year. As Cordula Droege has argued, international humanitarian law (IHL) is ‘under immense strain’; not only from the deliberate targeting of civilians, but also from bad faith reinterpretations of the law. In response, Brazil, China, France, Jordan, Kazakhstan, and South Africa have joined the International Committee of the Red Cross (ICRC) in establishing a two-year Global Initiative on IHL to reassert IHL as a political priority and to build higher expectations for ‘the universal, systematic and faithful application of IHL’.
As European Commission President Ursula von der Leyen warns, we are in an ‘era of rearmament.’ In the UK, Prime Minister Keir Starmer has outlined plans to increase defence spending to 2.5% of GDP from 2027 – the largest sustained increase since the Cold War. This comes with a willingness to put UK ‘boots on the ground, and planes in the air’ in Ukraine as part of a security guarantee. Before any deployment, the UK should rethink its recent state practice on addressing civilian harm from military operations, which has had significant shortcomings. As the US moves to defund its office dedicated to civilian protection, retreating from its leadership role in this area, and with the growing likelihood of the UK’s first major deployment since Afghanistan, the role of investigations in upholding civilian rights must be recognised as a crucial tool within broader efforts to strengthen the UK’s approach to civilian harm mitigation and response.
What Does International Humanitarian Law Require?
As the first author of this post has argued in her November 2024 report for Ceasefire Centre for Civilian Rights (Ceasefire), military investigations are critical to preventing violations of IHL and improving civilian protection. Investigations help ensure states’ full compliance with IHL, international human rights law (IHRL) and international criminal law (ICL), while enhancing accountability, supporting reparations, and improving civilian harm mitigation in future operations.
It is mandatory to investigate suspected criminal conduct, including war crimes in international armed conflict (IAC) or non-international armed conflict (NIAC), grave breaches in IAC, and the crime of torture; but military investigations should not be limited to criminal proceedings. Alongside the duty to ‘repress’ grave breaches, military investigations are a tool to implement states’ broader duty to ‘suppress’ all other breaches of IHL. Investigations in their broadest sense (establishing facts and their causes) are specified in IHL’s treaty and customary duties to identify and account for the dead and the missing.
The principle of precautions in attack logically requires civilian casualty tracking and investigations as part of the civilian protection toolkit; not only when violations are suspected (Lattimer 2018 and Ceasefire 2024). Under this principle, parties to a conflict must take ‘constant care’ to spare the civilian population and civilian objects from the effects of their attacks: by doing ‘everything feasible’ to verify that their targets are military objectives; taking ‘all feasible precautions’ in their choice of weapons and targeting practices to ‘avoid … and in any event to minimiz[e], incidental’ civilian harm; refraining from launching an attack which is expected to cause civilian harm in breach of the IHL principle of proportionality; and cancelling and suspending an attack if their ‘constant care’ shows that their target is not a military objective or if incidental harm to civilians and/or civilian objects might result that is excessive in relation to the anticipated military advantage of the attack.
While Additional Protocol I to the Four Geneva Conventions binds states parties in IAC, the ICRC’s Customary IHL Study (Rule 15) finds evidence that the IHL principle of precaution binds states and non-state armed groups in IAC and NIAC alike. Customary IHL (Rule 18) further requires parties to the conflict to assess the effects of attacks to prevent disproportionate civilian casualties, necessitating investigation and record-keeping within the chain of command.
Where State Practice on Investigations Falls Short
In January 2025, the Sorgdrager Commission reported on shortcomings in the Dutch military investigation into a 2015 strike in Hawija, northern Iraq, during Operation Inherent Resolve. ‘[A]t least 70’ civilians, and reportedly between 70 and 150 civilians, were killed following a strike on an ISIS facility that caused a secondary explosion. The Commission found that the fact-finding and internal investigation process was insufficient and that data on suspected civilian casualties were not supplied to the Dutch Public Prosecution Service. There were problems with transparency and delayed release of information to Parliament throughout; with ‘failure to preserve essential source material; sloppy archiving or even no archiving at all’ (Recommendation 8). The Commission recommends (Recommendation 5) that the Dutch Ministry of Defence conduct its own investigation immediately when civilian casualties are suspected, and report the results of that investigation to the Dutch Public Prosecution Service.
Turning to the UK’s practice, Ceasefire’s report finds that the UK Ministry of Defence has preferred criminal investigations which have been supplemented by inquisitorial or coronial-style investigations only when criminal investigations have been closed. The UK has shown a defensive and restrictive approach to the investigatory obligations under the European Convention on Human Rights (ECHR). Despite numerous operational, criminal and judicial investigations (including public inquiries), there were serious investigatory weaknesses, particularly in the initial stages of investigations, with recurrent shortcomings in forensic data and record-keeping. These difficulties caused recurrent investigations, which might have been avoided by competent and transparent approaches to investigation. These shortcomings have affected the Camp Breadbasket and Baha Mousa case, the Iraq Historic Allegations Team, Operation Northmoor, Iraq Fatality Investigations and the current Independent Inquiry relating to Afghanistan (IIA).
What Does Best Practice Look Like?
Effective investigations should be holistic and comprehensive, focused on uncovering the facts and causes of civilian harm, as well as accounting for the dead and missing, addressing direct civilian harm from military operations and the cumulative and reverberating effects of attacks on civilian populations. The IHL principle of precautions primarily addresses civilian harm in the narrow sense of the direct effects of kinetic operations. But there is an increasing acknowledgement that civilian harm is broader, and that civilian protection requires far-reaching measures, including the ILA Study Group finding in 2017 that ‘foreseeable’ reverberating effects must inform proportionality and the Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas recommending that civilian casualties be recorded and tracked, with data ‘disaggregated by sex and age’, ‘shared and made publicly available.’
Comprehensive civilian casualty tracking (as distinct from casualty recording, which focuses on identifying individual victims; and from the civilian or collateral component of Battle Damage Assessments) can address civilian harm in a broader sense, by revealing patterns of conduct, choice of weapons, or targeting practices which suggest a failure fully to implement the IHL principle of precautions to avoid and minimize civilian harm. Civilian casualty tracking can be included in the administrative measures states take to ‘suppress’ all breaches of IHL, not only where criminal offences are suspected. Ceasefire argues that similar investigations can include tracking systemic failings in the handling of detainees, with proper record-keeping, CCTV of interrogations and comprehensive training of armed forces personnel in IHL and IHRL. These measures might have prevented the death from inhumane treatment of Iraqi civilian Baha Mousa in British military custody in 2003.
Ceasefire urges the UK to learn from recent reforms in civilian casualty tracking and civilian protection in the USA (under the Biden administration) and the Netherlands. Ceasefire argues that civilian protection requires both civilian casualty recording and broader civilian casualty tracking. The NATO International Security Assistance Force (ISAF) in Afghanistan initially established a Civilian Casualty Tracking Cell in 2008, followed by a Civilian Casualty Mitigation Team in 2011, although Gregory points to a mixture of civilian protection and defensive practice as a result of these initiatives.
From 2022, the US Department of Defence (DOD) established a Civilian Harm Mitigation and Response Action Plan, which was followed by the DOD Instruction 3000.17 on Civilian Harm Mitigation and Response. Although it is currently being rolled back by the new Trump administration, the recent US approach integrated civilian protection in all aspects of military education, training, doctrine and strategy; data management and reporting, and aimed to address cognitive bias and target misidentification which might cause civilian harm. In 2024, the Netherlands completed a four-year Roadmap with 16 recommendations that recognise direct and reverberating civilian harm, transparent reporting and the need to push for a baseline of civilian protection as a prerequisite for Dutch involvement in any coalition operations. The UK and its allies should emulate these practices for civilian protection and the investigation of civilian harm.
How to Respond
The IIA has been hearing evidence that UK service personnel perpetrated serious abuses against the civilian population they were deployed to protect. As the possibility rises of a new major deployment, how to plan for robust civilian protection? States and civil society should acknowledge the importance of holistic, comprehensive investigations of civilian harm as a tool to prevent and respond to both direct (kinetic) and indirect (cumulative or reverberating) civilian harm. While the UK Ministry of Defence (MoD) asserts that discussions are ongoing between its officials, the UK’s allies and civil society to share and promote best practice on civilian harm mitigation, significant gaps remain.
As Ceasefire recommends to the UK government, the MoD should be funded and supported to move towards civilian casualty tracking, as well as civilian casualty recording. As the Sorgdrager Commission report acknowledged, parliamentary oversight of investigations into civilian harm is essential, with transparent reporting of civilian casualties. States, including the US and the UK, should employ comprehensive civilian casualty tracking throughout a deployment, with full implementation of the IHL principles of distinction, proportionality and precautions, including acknowledging and rectifying cumulative and reverberating civilian harm. States can use the data from their investigations to rectify targeting practices which fail to respect IHL. These remedial actions can take place within the chain of command and (where violations have taken place) with parliamentary, judicial and civil society scrutiny. Robust investigatory practices that prioritise civilian protection can help challenge current patterns of denial and reinterpretation of IHL, reinforcing protection and accountability in an era of escalating threats to civilians.