IDC Inquiry:

Promoting dialogue and preventing atrocities: the UK government approach

Written Evidence of Mr. John Cubbon

Author

John Cubbon is a barrister and a member of Guernica 37 Chambers. He works on rule of law issues arising in fragile and conflict affected states. He held legal positions in the UN from 1995 to 2015. Since 2015 he has had several assignments as a Deployable Civilian Expert for the Stabilisation Unit. These have included posts as a Trainer and Adviser on International Humanitarian Law (IHL) at the EU Training Mission in Mali in 2018 and at the Peacekeeping School in Bamako in 2021. He is writing here in a personal capacity.

Executive summary

1. Direct engagement with military and security structures in order to influence the behaviour of their personnel has been neglected as a means of atrocity prevention. Exploration of its feasibility should be given greater prominence by the FCDO both centrally in the formulation of strategy and policies and at the level of posts. It should not automatically take the form of the standard IHL courses given to members of armed forces, beneficial though such courses are, but rather of training and/or advice fashioned in light of local conditions, including any serious violations of human rights that have taken place or may do so. This approach should, of course, be coordinated with the activities of other international and national agencies as well as with other related initiatives of the UK government in fragile and conflict affected states. It would in some respects be innovative with potential for development both by UK agencies and more broadly.

Introduction

2. How, if at all, can atrocities be prevented by altering the perspectives, attitudes and behaviour of those in a position to commit them? My answers are derived from reflections on two Stabilisation Unit deployments in which I taught members of the Malian Armed Forces who ranged from officers with university-level education to privates some of whom had very little formal schooling. Whatever their rank, they were remarkably willing to relate to me, a civilian from another country. I am immensely indebted to them for this as well as for the insights that I gained.

3. Given this background what follows comes loosely into the category of lessons learnt in terms of the topics on which the IDC has invited written submissions. However, it is not based on the specifics of my experiences in Mali. It is rather that my time there led to a realisation of the potential of the type of engagement that I had in a broad spectrum of contexts in fragile and conflict affected states. Of the other topics raised by the IDC, attention will mainly be given to the role of UK aid programmes in atrocity prevention and as a consequence there will also be a consideration of embedding atrocity prevention in the work of UK posts and interaction with other government policies and areas of work.

Engagement with military and security structures

4. In many contexts it is the military and security structures that are most likely to commit atrocities.[1] Working with military and security structures might seem to be the obvious place to start in atrocity prevention. If those in a position to commit atrocities can be persuaded not to do so, the problem will be solved. However, this approach has been given little attention for good and obvious reasons. In many situations it is a non-starter. (Imagine writing to the Russian authorities: “We have noticed the overwhelming evidence of Russian soldiers committing multiple serious human rights violations in Ukraine. We wondered whether you would be interested in our assistance in altering the conduct of your military ….”) Even where engagement is possible, its impact may appear paltry by comparison with countervailing factors such as the bitterness that arises in every armed conflict and the inherent resistance of any armed force to attempts by outsiders to influence their behaviour.

5. These reasons for the neglect of engagement of military and security structures, nevertheless, give pointers to when and how it can be beneficial. Whilst in some situations it is practically impossible, there are environments in which it will be both possible and constructive. Some governments acknowledge the risk of atrocities being committed and have some incentive at least to be seen to be taking steps to prevent them. Even some non-state armed groups may have similar inclinations, particularly if they have ambitions to govern and want to be seen as legitimate by the local population. There is strong support in the written evidence in this Inquiry for the establishment of an early warning system for atrocities.[2] It is indeed at this stage that planning and initial implementation of the measures proposed can usefully take place.

6. In many settings there will already be programmes of engagement with military and security structures that may reduce the risk of the commission of atrocities. They often take the form of training in IHL and human rights (which is particularly relevant where a force is conducting military operations on its own, or in occupied, territory). This is not only carried out by states themselves, e.g. through military and police training institutions, but also by the ICRC, the UN and other agencies. It is unlikely that simply adding to the quantum of training on IHL that is already being given will be the most efficient use of the limited resources at the disposal of the UK. A more fruitful avenue to be explored would be training that is carefully targeted, not only so as not to duplicate existing programmes, but also so that it is directly focused on atrocity prevention by attempting to alter attitudes and conduct.

7. Where engagement with military and security structures is feasible, its modalities should be worked out in light of the prevailing circumstances on the ground. Possible interventions cannot be expected to lead to decisive changes in behaviour, but there is no reason why they should not have some impact over the short and long term.

8. The type of engagement will depend on the context. Training is the obvious form that it may take. Courses on IHL for military personnel tend to be of a generic nature and, as such, to cover the whole of the subject, thereby providing a background applicable in both international and non-international armed conflicts. Such trainings certainly have a value, but where, as is often the case, military forces are taking part in an internal armed conflict in which atrocities are occurring, even if only occasionally and on a small scale, additional training with this in mind would also be suitable. In such conflicts it may, for example, be appropriate to cover applicable provisions of domestic law on detention and criminal procedure as well as the effects of serious human rights violations in legal, practical and policy terms. With regard to the latter, consideration could be given to the possible consequences of atrocities in proceedings before international and domestic courts and in reports by respected human rights bodies as well as their implications for the attainment of military and other objectives. It will be necessary to identify the ranks, units and functions of those who would most benefit. This requires an understanding of military and security structures and how they relate to any atrocities that may have already been committed.

9. Personnel in senior positions are likely be resistant to advice from outside on changes in organisation and doctrine because they often stand to lose out from reforms to the institution. Nevertheless, it may sometimes be beneficial to give recommendations to high-ranking officers on changes in organisation and doctrine. More effective procedures might be introduced for the collection of information on civilian casualties; there might be tighter rules on the use of particular weapons or the conduct of certain operations; and so on.

10. A significant by-product of this type of engagement would be a better grasp of the factors that make serious violations of human rights more likely. When training members of the Malian Armed Forces, for example, I became aware that rigid adherence to IHL was made more difficult by deficiencies in the criminal justice system in which those suspected of war crimes against civilians could be tried. Enhanced understanding of this nature facilitates the identification of other measures that would be effective in the context concerned.

11. What is envisaged is an iterative process. The first step would be an assessment of how best to engage with military and security structures. This would involve an analysis of the nature of any actual or imminent armed conflict and atrocities that have been committed, relevant programmes undertaken by other agencies and the legal framework within which atrocities take place. A programme of engagement would be developed on that basis. The second step would the implementation of the programme. The third step would be a review of the second step. The first step would then be revised and the process would begin again.

Fitting into UK Government organisation and policies

12. A cogent case for a cross-governmental atrocity prevention strategy has been made in a number of the submissions.[3] Exploration of the feasibility of engagement with military and security personnel with a view to reducing their tendency to commit serious human rights violations should form a part of any such strategy. In its submission the FCDO writes that it is working to mainstream the consideration of human rights risks across its programmes.[4] Again this should include the approach to military and security structures outlined here.

13. The modalities would need to be worked out at the level of FCDO posts. Advice on how to do this should be included in atrocity prevention training at this level which has been recommended in the written evidence.[5] Engagement with military and security structures should also be reflected in the dedicated training module on atrocity prevention which the FCDO’s International Academy offers to staff in sanctions and conflict prevention[6] and in the guidance on the Joint Analysis of Conflict and Security.[7]

14. The gender dimension in atrocities should, as far as possible, be addressed. In this process there should be coordination with the Preventing Sexual Violence in Conflict Initiative.  More broadly, connections with other UK programmes such as Responsibility to Protect, the Women, Peace and Security Agenda, the Protection of Civilians doctrine and the CONTEST (counter-terrorism) strategy should be fully taken account of but they should not be allowed to submerge the engagement with military and security structures recommended here.

15. It hardly needs to be said that the context of what is proposed is immensely variable. This restricts the scope for generalisation on the suitability of particular measures, but it by no means prevents lessons learnt in one state or conflict being of relevance elsewhere. A focal point for atrocity prevention at the FCDO[8] would be in a position to maintain a data-base of initiatives and good practice and promote institutional memory.

16. The UK is only one player among many in this field. However, national and international agencies rarely focus directly on atrocity prevention by engagement with military and security structures in fragile and conflict-affected states. If the UK were to develop successfully a specialisation in this sphere, its capacity to contribute on the international and diplomatic planes would be strengthened. There are likely to be circumstances in which the agencies of other states or international bodies are better placed than the UK Government to develop the process advocated here; but by nevertheless pursuing it where it is able to the UK Government will be promoting an example which others might follow.

Conclusions

17. The proposed programme of engagement is certainly ambitious, but no less so than many other atrocity prevention initiatives. It should be institutionalised within the FCDO and this will affect organisation, policy and staff-training. The context in which the approach will be applied is complex and fluid and consequently it should evolve in light of changing circumstances. What will be critical will be to tailor any training and advice that will be given to military or security personnel to the particular setting in which there is a risk of atrocities.

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