Abstract
This chapter examines the legal norms governing investigations of possible international law violations during an armed conflict. It begins by setting forth those rules derived from the 1949 Geneva Conventions, 1977 Additional Protocols and customary law. Since human rights norms also apply in armed conflicts, the chapter surveys human rights investigatory standards, and how they interact with corresponding international humanitarian law rules. Since international humanitarian and human rights law on the subject lacks granularity, State practice is surveyed in order to tease out prevailing practices that may either reflect on how treaty law is applied or reveal the broad outlines of customary law. The chapter offers conclusions as to the applicable legal standards for such investigations.
Previously published in 2 Harvard National Security Journal (2011) 31
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Notes
- 1.
- 2.
Human Rights Watch 2010b. Hamas had conducted no meaningful investigations by the time of the report; Israel had conducted 150 investigations and issued two reports, but Human Rights Watch found them to “have fallen short of international standards for investigations.” Id. at 1. For the Israeli reports, see State of Israel 2009; State of Israel 2010a. In July 2010, Israel published its third report on Cast Lead, specifically addressing the status of the ongoing investigations. State of Israel 2010b. In June 2010, the Israeli Government established an independent public commission consisting of a former Israeli Supreme Court Justice, a distinguished Israeli international law professor, a retired Israeli general, a Northern Irish Nobel Peace Prize Laureate, and the former Canadian Judge Advocate General (the commission was later expanded to include an Israeli scholar and a former diplomat). Although formed in response to the Mavi Marmara incident during the Israeli blockade of Gaza, the “Turkel Commission” was further empowered to investigate “the mechanism for examining and investigating complaints and claims raised in relation to violations of the laws of armed conflict … conform with the obligations of the State of Israel under the rules of international law.” Government Establishes Independent Public Commission 2010. For discussion and criticism of such commissions, see Alston 2008.
- 3.
Israel’s Report to the UN Misstates the Truth 2010. The organization also argued that “[t]he investigation must examine not only the conduct of the soldiers in the field but also the orders given them and the policy that was set by the senior military echelon and the political echelon.” Id.
- 4.
Human Rights in Palestine and other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, para 1620, U.N. Doc. A/HRC/12/48 (September 15, 2009) [hereinafter Goldstone Report]. It specifically determined that “the system put in place by Israel … to deal with allegations of serious wrongdoing by armed forces personnel does not comply with [all of the universal principles of independence, effectiveness, promptness and impartiality]”… and that it “is not effective in addressing the violations and uncovering the truth.” Id. paras 1611–13. The report was highly controversial. For instance, the US House of Representatives passed a resolution condemning the report. H. Res. 867, 111th Cong. (2009). See also Blank 2010.
- 5.
G.A. Res. 64/10, U.N. Doc. A/RES/64/10 (December 1, 2009). Of the Permanent five members of the Security Council, the United States voted against approval of the report, whereas China voted in favor and Russia, France and the United Kingdom abstained. The Deputy US Representative to the United Nations criticized the resolution and called the Goldstone Report biased:
We continue to believe that the Report of the UN Fact-Finding Mission on the Gaza Conflict, widely known as the Goldstone Report, is deeply flawed. We have previously noted shortcomings that include its unbalanced focus on Israel, the negative inferences it draws about Israel's intentions and actions, its failure to deal adequately with the asymmetrical nature of the Gaza conflict, and its failure to assign appropriate responsibility to Hamas for deliberately targeting civilians and basing itself and its operations in heavily civilian-populated urban areas. The Goldstone Report is also problematic in its many overreaching recommendations and its sweeping legal and political conclusions.
U.N. GAOR, 64th Session, 39th plen. meeting at 12, U.N. Doc. A/64/PV.39 (November 5, 2009). The General Assembly called upon both Israel and the Palestinians to conduct investigations that
are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission.
G.A. Res. 64/10, supra, at 2. In February 2010, the Assembly reiterated its call for investigations. G.A. Res. 64/254, U.N. Doc. A/RES/64/254 (March 25, 2010).
- 6.
Follow-up to the report of the United Nations Independent International Fact- Finding Mission on the Gaza Conflict, H.R.C. Res. 13/9, U.N. Doc. A/HRC/RES/13/9 (April 14, 2010). Of the P-5, the United States voted against the resolution, Russia and China voted in favor and France and the United Kingdom abstained.
- 7.
Report of the Committee of Independent Experts in International Humanitarian and Human Rights Laws to Monitor and Assess Any Domestic, Legal or Other Proceedings Undertaken by both the Government of Israel and the Palestinian Side, U.N. Doc. A/HRC/15/50 (September 21, 2010) (Advanced Edited Version) [hereinafter Investigations Report].
- 8.
The Committee expressed concern about a purported conflict of interest involving the provision of legal advice on both operational and investigative matters by the Military Advocate General (although the criticism was specific to the case of Gaza), noted that the Israelis should have paid greater heed to victims and witnesses (although the Committee did not find the human rights standards in this regard as strictly applicable to armed conflict), stated that Israel failed to meet its human rights and humanitarian law obligations to investigate torture and high level violations, and stated that it could not conclude that Hamas had met its obligation to conduct “credible and genuine” investigations. Id. at 23–24.
- 9.
Id. at 3–11.
- 10.
See, e.g. Human Rights Watch 2005 (criticizing earlier Israeli investigations); Issue Brief: Getting to the Truth through an Independent Commission of Inquiry, Amnesty International, http://www.amnestyusa.org/war-onterror/page.do?id=1541004 (calling for an Independent Commission of Inquiry into US practices during the so-called “war on terror”).
- 11.
Hague Convention (IV) Respecting the Laws and Customs of War on Land, Article 3, October 18, 1907, 36 Stat. 2277, 207 Consol. T.S. 277.
- 12.
Treaty of Peace with Germany, Article 228–29, June 28, 1919, 2 Bevans 43, 11 Martens Nouveau Recueil (ser. 3) 323, 225 Consol. T.S. 188.
- 13.
On the trials, see Mullins 1921.
- 14.
See, e.g. Declaration of Four Nations on General Security, October 30, 1943, 9 Dep't St. No. 307(1943) (Moscow Declaration on Atrocities).
- 15.
See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal Article 1–3, August 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter IMT Charter]; Charter of the International Military Tribunal for the Far East at Tokyo, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, April 26, 1946, 4 U.S.T. 27, T.I.A.S. No. 1589.
- 16.
Control Council Law No. 10, (1946) (Ger.). The law was promulgated by the Allied Control Council, which was responsible for the military occupation of Germany by the United States, United Kingdom, Soviet Union, and France. The law authorized each of the occupying powers to conduct its own war crimes trials independent of the International Military Tribunal.
- 17.
Many war crimes trials were conducted in national courts that enjoyed jurisdiction over the relevant offenses and offender (e.g. an offense committed by a national of the State or against its nationals). Control Council Law No. 10 set forth procedures for such cases when the accused was located in Germany:
When any person in a Zone in Germany is alleged to have committed a crime, as defined in Article II, in a country other than Germany or in another Zone, the government of that nation or the Commander of the latter Zone, as the case may be, may request the Commander of the Zone which the person is located for his arrest and delivery for trial to the country or Zone in which the crime was committed. Such request for delivery shall be granted by the Commander receiving it unless he believes such person is wanted for trial or as a witness by an International Military Tribunal, or in Germany, or in a nation other than the one making the request, or the Commander is not satisfied that delivery should be made, in any of which cases he shall have the right to forward the said request to the Legal Directorate of the Allied Control Authority. A similar procedure shall apply to witnesses, material exhibits and other forms of evidence.
Control Council Law No. 10, id. Article IV.1.
- 18.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Article 49, August 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GC I]; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Article 50, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter GC II]; Geneva Convention Relative to the Treatment of Prisoners of War, Article 129, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GC III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article 146, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV].
- 19.
GC IV, supra note 18, Article 146.
- 20.
GC I, supra note 18, Article 50; GC II, supra note 18, Article 51; GC III, supra note 18, Article 130; GC IV, supra note 18, Article 147.
- 21.
There is no definitive delineation between the two categories. The Charter of the IMT cited the following as examples of war crimes: “murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or destruction not justified by military necessity.” IMT Charter, supra note 15, Article 6(b). Without doubt, all grave breaches of the 1949 Geneva Conventions constitute war crimes. Additionally, it is generally accepted that those offenses set forth in Article 8 of the Statute of the International Criminal Court amount to war crimes under customary law (although the precise parameters of the offenses may differ from those in the Statute). Rome Statute of the International Criminal Court Article 8, July 1, 2002, 2187 U.N.T.S. 90 [hereinafter ICC Statute]. On the distinction between war crimes and acts that merely violate IHL, see Lauterpacht 1944; Dinstein 2010, pp. 263–66.
- 22.
See, e.g. GC III, supra note 18, Article 127; GC IV, supra note 18, Article 144; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, Article 83, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter AP I].
- 23.
International Committee of the Red Cross, Commentary: I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick Armed Forces in the Field 366 (J. Pictet 1952) [hereinafter GC I Commentary].
- 24.
Id. at 365–66; Int’l Comm. of the Red Cross, Commentary: III Geneva Convention Relative to the Treatment of Prisoners of War 623 (J. Pictet 1960) [hereinafter GC III Commentary]; Int’L Comm. of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 592–93 (J. Pictet 1958) [hereinafter GC IV Commentary].
- 25.
GC I Commentary, supra note 23, at 366. Should extradition of an accused be precluded by national legislation, for instance because of nationality, the State having custody of the individual must try that person before its own courts. Id. See also Int’L Comm. of the Red Cross 1960, p. 265; GC III Commentary, supra note 24, at 623–64; GC IV Commentary, supra note 24, at 593.
- 26.
GC IV Commentary, supra note 24, at 588 [citing Draft Code of Offences against the Peace and Security of Mankind, Article 2 (13), in Rep. of the Int’l Law Comm’n, U.N. Doc. A/2693 GAOR, Supp. No. 9, at 9 (1954)].
- 27.
See, e.g. ICC Statute, supra note 21, Article 25.3(b); Statute of the International Tribunal for Rwanda, S.C. Res. 955 annex, U.N. Doc. S/RES/955, Article 6(1) (November 8, 1994) [hereinafter ICTR Statute]; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, U.N. Doc. S/25704 annex, Article 7(1) (May 3, 1993) [hereinafter ICTY Statute]; ICRC, I Customary International Humanitarian Law Rule 152 (Jean-Marie Henkaerts and Louise Doswald-Beck 2005) [hereinafter CIHL].
- 28.
The Conference was convened by the Swiss government and held four sessions: February 20–March 29 1974; February 3–April 18 1975; April 21–June 11 1976; and March 17–June 10 1977.
- 29.
AP I, supra note 22, Article 1.2; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Article 1.1, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter AP II]. Notably, the United States and Israel have elected not to become a Party to either of the Protocols, although some of the norms expressed in provisions thereof reflect customary international law and as such bind both States, as well as all other non-Parties.
- 30.
AP I, supra note 22, Articles 85, 87–89.
- 31.
Id. Article 87.
- 32.
Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Yves Sandoz et al. 1987), para 3562 [hereinafter AP Commentary].
- 33.
Id. para 3550.
- 34.
Id. para 3553; Bothe et al. 1982, p. 528.
- 35.
AP Commentary, supra note 32, para 3553. Nor do commanders necessarily exercise command only over those officially assigned to their unit. Should a commander be temporarily in control of forces during a particular operation or as a result of the flow of battle, he or she must ensure compliance with the provisions of Article 87 and other IHL norms vis-à-vis such forces. Id. para 3554. For the purposes of the article, a commander is also responsible for the actions of “other persons under their control,” as in the case of the civilian population in occupied territory or troops of other units operating in his or her sector of occupation. Id. para 3555.
- 36.
Id. para 3550.
- 37.
Id. para 3557. The obligation to have legal advisers available to advise on implementation of IHL is set forth in GC IV, supra note 18, Article 82.
- 38.
AP Commentary, supra note 32, para 3563.
- 39.
Id. para 3552.
- 40.
Id. para 3562; see also Bothe et al. 1982, at 527–29.
- 41.
For instance, as of October 2010, the US Army has court-martialed 32 soldiers on murder or manslaughter charges arising from the deaths of civilians, convicting 22 of them (the number excludes those charged and convicted of lesser offenses, such as negligent homicide or aggravated assault). Savage 2010, at A9.
- 42.
For instance, doing so might involve “informing superior officers of what is taking place in the sector, drawing up a report in the case of a breach, or intervening with a view to preventing a breach from being committed, proposing a sanction to a superior who has disciplinary power, or—in the case of someone who holds such power himself—exercising it, within the limits of his competence, and finally, remitting the case to the judicial authority where necessary with such factual evidence as it was possible to find.” AP Commentary, supra note 32, para 3562.
- 43.
For instance, it would be unreasonable to impose a requirement to report a possible violation only to a superior commander if that commander may have been involved in the incident. The duty to report borne by the subordinate would remain intact in such circumstances, but other means of bringing the matter to the attention of authorities capable of taking action would be acceptable. Similarly, it would generally not be appropriate for a subordinate commander to formally conduct an investigation into the activities of an immediate superior, since doing so would otherwise undermine the superior’s command authority and the command relationship may have a chilling effect on the subordinate’s conduct of a full and objective investigation.
- 44.
It should be noted that the authoritativeness of the study has been questioned and, therefore, its determinations should be treated with caution. On the US position, see Joint Letter from John Bellinger and William Haynes to Jakob Kellenberger on Customary International Humanitarian Law Study, 46 I.L.M. 514 (2007).
- 45.
CIHL, supra note 27, rule 158.
- 46.
Convention on the Prevention and Punishment of the Crime of Genocide, Article IV, December 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.
- 47.
Convention for the Protection of Cultural Property in the Event of Armed Conflict, Article 7, May 14, 1954, S. Treaty Doc. no. 106-1 (1999), 249 U.N.T.S. 240; Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts Articles 15–17, March 26, 1999, 38 I.L.M. 769.
- 48.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 7, December 10, 1984, S. Treaty Doc. no. 100.20, 1465 U.N.T.S. 85.
- 49.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Article VII(1), January 13, 1993, S. Treaty Doc. no. 103-21, 1974 U.N.T.S. 45.
- 50.
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, amended Protocol II Article 14, May 3, 1996, 35 I.L.M. 1206.
- 51.
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Article 9, September 18, 1997, 36 I.L.M. 1507.
- 52.
Convention on Cluster Munitions, Article 9, December 3, 2008, 48 I.L.M. 357.
- 53.
ICC Statute, supra note 21, pmbl.
- 54.
G.A. Res. 3(I), U.N. Doc. A/RES/3(I) (February 13, 1946).
- 55.
See, e.g. G.A. Res. 2338 (XXII), A/RES/2338(XXII) (December 18, 1967); G.A. Res. 2391 (XXIII), A/RES/2391(XXIII) (November 26, 1968); G.A. Res. 2583 (XXIV),A/RES/2583(XXIV) (December 15, 1969); G.A. Res. 2712, A/RES/2712(XXV) (XXV)(December 15, 1970); G.A. Res. 2840 (XXVI), A/RES/2840(XXVI) (December 18, 1971); G.A. Res. 3074 (XXVIII), A/RES/3074(XXVIII) (December 3, 1973).
- 56.
G.A. Res. 60/147, Annex, para 3, A/RES/60/147 (December 16, 2005).
- 57.
See, e.g. War Crimes Act, 18 U.S.C. § 2441 (2006).
- 58.
The United States’ Commander’s Handbook on the Law of Naval Operations is illustrative: “Alleged violations of the law of armed conflict, whether committed by or against US, allied, or enemy personnel, are to be reported promptly through appropriate command channels. War crimes alleged to be committed by US personnel or its allies, must be investigated thoroughly, and where appropriate, remedied by corrective action. War crimes committed by enemy personnel will be reviewed for appropriate responsive action.” US Navy, NWP 1-14 M, The Commander’s Handbook on the Law of Naval Operations, para 6.1.2.1 (2007) [hereinafter NWP 1-14 M].
- 59.
Id. para 6.1.3.
- 60.
UK Ministry of Defence, the Manual on the Law of Armed Conflict 438 (2004), [hereinafter UK Manual].
- 61.
Id. para 6.1.2.
- 62.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia Article 11, November 27, 1991, quoted in CIHL, supra note 27, at 3946.
- 63.
Agreement between Representatives of Mr. Alija Izetbegovic (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadzic (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkic (President of the Croatian Democratic Community) Article 5, May 22, 1992, quoted in CIHL, supra note 27, at 3947.
- 64.
CIHL, supra note 27, at 609–10.
- 65.
GC I Commentary, supra note 23, at 367; GC IV Commentary, supra note 24, at 594.
- 66.
See text accompanying notes 42–48.
- 67.
ICC Statute, supra note 21, pmbl., Article 28.
- 68.
ICTR Statute, supra note 27, Article 6.
- 69.
Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, paras 111–27 (Int’l Crim. Trib. for the Former Yugoslavia October 2, 1995).
- 70.
Id. para 126.
- 71.
Vienna Convention on the Law of Treaties, Article 26, January 27, 1980, 1155 U.N.T.S. 331. It should be noted that States differ on the content of the customary IHL governing non-international armed conflict. However, this is a different issue than that of investigation. Assuming a State accepts a purported norm as binding, it has no reason to object to an obligation to investigate its possible breach.
- 72.
International Covenant on Civil and Political Rights, Article 2.2, December 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. The right to life is set forth in Article 6.1.
- 73.
U.N. Human Rights Comm., General Comment No. 31, Nature of the General Obligation Imposed on States Parties to the Covenant, para 15, U.N. Doc. CCPR/C/21/Re.1/Add.13 (May 26, 2004). In an individual communication in Bautista de Arellana v. Colombia, the Committee noted that, “the State party is under a duty to investigate thoroughly alleged violations of human rights … and to prosecute criminally, try and punish those held responsible for such violations.” U.N. Human Rights Comm. Communication No. 563/1993, para 8.6, (October 27, 1995).
- 74.
European Convention on the Protection of Human Rights and Fundamental Freedoms, opened for signature November 4, 1950, 213 U.N.T.S. 221.
- 75.
McKerr v. United Kingdom, 2001-111 Eur. Ct. H.R. 475, para 111.
- 76.
Id. para 113.
- 77.
Id. para 115.
- 78.
According to the court, this “means not only that there should be no hierarchical or institutional connection but also clear independence.” Id. para 112. On the requirement to investigate uses of force resulting in death, see also, e.g. McCann and Others v. the United Kingdom, 324 Eur. Ct. H.R. (ser. A) para 161 (1995); Kaya v. Turkey, 1998-I Eur. Ct. H.R. 324, paras 85–86.
- 79.
Ergi v. Turkey, 1998-IV Eur. Ct. H.R. 1776, para 85.
- 80.
Isayeva and Others v Russia, 2005 Eur. Ct. H.R. 128, paras 210–11.
- 81.
See generally Case of the Ituango Massacres, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 148 (July 1, 2006); Case of the “Mapiripan Massacre,” Judgment, Inter-Am. Ct. H.R. (ser. C) No. 134 (September 15, 2005).
- 82.
On the norms, and their application in situations of armed conflict, see generally Watkin 2004.
- 83.
Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27–September 7, 1990, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, para 22, U.N. Doc. A/CONF.144/28/Rev.1.
- 84.
Id. para 23.
- 85.
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, E.S.C. Res. 1989/65, para 9, U.N. Doc. E/1989/89 (May 24, 1989).
- 86.
Id. paras 9–17; see also Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 55/89, Annex, U.N. Doc. A/Res/55/89/Annex (February 22, 2001).
- 87.
The classic example is the rule of proportionality, by which an attack may be conducted against a military objective even when civilians and civilian objects will be harmed, so long as the expected incidental harm is not excessive relative to the military advantage anticipated to accrue from the attack. AP I, supra note 22, Articles 51, 57; CIHL, supra note 27, Chap. 4.
- 88.
Contemporary arguments against applicability tend to be more sophisticated. For instance, applying human rights law in particular armed conflicts may be objected to on the basis that a relevant treaty norm was not intended to apply in armed conflicts or that human rights law has no extraterritorial effect, positions that have been advanced most notably by the United States. See generally Dennis 2005.
- 89.
It has been perceptively pointed out that there are at least three situations during armed conflict where it makes sense to apply, to a degree, certain human rights norms: occupation, non-international armed conflict, and counter-terrorism. The instance and scope of applicability will depend in great part on whether the situation involves an incident directly related to the conduct of the armed conflict or one where the nexus with the conflict is attenuated. See Watkin 2004, at 2. Thus, for example, whereas IHL norms on the use of force will apply to fighting organized armed groups during an occupation, human rights norms may govern various forceful actions taken by an occupant to comply with its duty to generally maintain law and order in occupied territory. By this position, an investigation into the excessive use of force while solely performing standard policing duties could be subject to most, and perhaps all, human rights standards to which the occupant was, as a matter of law, subject. But an investigation into an incident occurring during a fire fight with an insurgent group would involve further analysis, for IHL would apply to the incident, thereby making it necessary to determine the relationship between the two legal regimes. For an interesting, albeit somewhat controversial, discussion of the relationship between IHL and human rights, see generally Delahunty and Yoo 2010.
- 90.
For example, the position taken by the United States regarding the International Covenant on Civil and Political Rights. U.N. Human Rights Comm., Third Periodic Reports of States Parties Due in 2003: United States of America, at 109, U.N. Doc. CCPR/C/USA/3 (November 28, 2005).
- 91.
The Court held: “In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.” Bankovic & Others v. Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom 123 Eur. Ct. H.R 335, para 71 2001.
- 92.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, para 25 (July 8); ICCPR, supra note 72, Article 6.1.
- 93.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, para 106 (July 9).
- 94.
Case Concerning Armed Activity on the Territory of the Congo (Dem. Rep. of Congo v. Uganda), Judgment, 2005 I.C.J. 168, paras 216–220 (December 19).
- 95.
Recall, as discussed above, that the United States takes a very restrictive view as to any extraterritorial application of human rights law.
- 96.
For a thoughtful discussion of the subject, see Hampson 2008.
- 97.
- 98.
See, e.g. McCann, 324 Eur. Ct. H.R. (ser. A) para 236, where the Court held that “the use of lethal force would be rendered disproportionate if the authorities failed, whether deliberately or through lack of proper care, to take steps which would have avoided the deprivation of life of the suspects without putting the lives of others at risk.” See also HCJ 769/02, Public Comm. Against Torture in Israel v. Israel (Targeted Killings Case) [2006] IsrSC 57(6) 285, para 40.
- 99.
See, e.g. AP I, supra note 22, Article 41; CIHL, supra note 27, rule 47.
- 100.
Isayeva, 2005 Eur. Ct. H.R. para 209.
- 101.
A word of caution is due. This analysis is not meant to suggest that measures highlighted in the human rights context cannot or should not be taken when armed conflict is involved. Armed conflict can range from tranquil occupation to high intensity combat. What is required under IHL will therefore be case specific. As with much of IHL, the only viable standard is one of reasonableness in the circumstances.
- 102.
Goldstone Report, supra note 4, para 1611.
- 103.
Human Rights Watch has suggested that the standard for investigations of war crimes is that they be “prompt, thorough, and impartial and that the ensuing prosecutions also be independent.” Human Rights Watch 2010b, at 7.
- 104.
Both Israel and human rights NGOs have likewise focused on these four countries to examine practices. State of Israel 2010b, pp. 21–25; Open Society Justice Initiative 2010. However, this article examines the practices of the four countries anew; its discussion has been reviewed by senior officers from each of the countries involved, although they preferred not to be named.
- 105.
It should be acknowledged that all four countries are from the common law tradition. However, while civil law practices may be different, common law practices are equally authoritative and lex lata must take into account both.
- 106.
National Defence Act, R.S.C. 1985, c. N-5 (Can.) [hereinafter National Defence Act]. In the incident one Somali was tortured and killed, one was killed, and another wounded while running away from the Canadian compound. On the investigations, see Special Advisory Group on Military Justice and Military Police Investigation Services 1997.
- 107.
National Defence Act § 250.
- 108.
Canadian Forces Nat’l Investigation Serv., 2007 Annual Report 5 (2007) [hereinafter 2007 Report].
- 109.
R. v. Généreux, [1992] S.C.R. 259. The case recognized the military justice system as a co-equal constitutional partner to the civilian justice system and launched a process of increased integration of civilian criminal justice constitutional concepts into military justice. Of particular note, it removed the chain of command from many decisions, such as convening courts-martial. However, commanders still performed an investigatory function, and the charging function was, as discussed infra, shared with the CFNIS.
- 110.
Office of the Judge Advocate Gen. 2003, paras 1504, 1621.2. The acronym “LOAC” refers to the “law of armed conflict.” It is essentially synonymous with IHL, although it is sometimes interpreted as including the law governing when a State may use force as an instrument of its national policy.
- 111.
Id. § 8 para 1621.1.
- 112.
Id. § 8 para 10621.3.
- 113.
Id. § 8 para 1622. Although this article focuses on the military system, it must be noted that the Canadian Attorney General is responsible for implementation of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. Canadian Forces members are subject to the act, but cases have been dealt with exclusively within the military justice system for violations of military law. For instance, an infantry officer has recently been convicted (sentencing pending) of disgraceful conduct in shooting a wounded Taliban. Brennan 2010.
- 114.
Canadian Forces, Queen’s Regulations and Orders for the Canadian Forces, Article 21.01 [hereinafter QR&O]. See also National Defence Act § 45.
- 115.
QR&O, supra note 114, Article 21.06.
- 116.
Id. Articles 21.08, 21.10. Note that civilians may serve on Boards of Inquiry if appropriate in the circumstances.
- 117.
Id. Articles 21.10, 21.16.
- 118.
As an example, in 2006 a Board of Inquiry was convened to investigate an incident involving detainee handling. A rear admiral and two colonels were appointed to the board, which had the benefit of numerous advisers (legal, military police, public affairs, etc.). The board was instructed to make the following findings:
-
1.
Describe the specific details of the 14 June 2006 incident, regarding a person in CF custody, who was handed over to Afghan authorities and then taken back by CF personnel;
-
2.
Identify all reports relating to the 14 June 2006 incident, made through the chain of command up to Comd CEFCOM, describing their form and to whom they were sent;
-
3.
Determine to what conduct the words “police did assault him as it happened in the past” in the section commander’s notes refer; and
-
4.
Identify the process and doctrine in place at the time for reporting on detainees in Afghanistan, through the Comd TFA to Comd CEFCOM.
The Board of Inquiry was cautioned that should it “receive evidence that it reasonably believes relates to an allegation of a criminal act or a breach of the Code of Service Discipline (CSD), the BOI shall adjourn; the Convening Authority shall be notified, and the matter shall be referred to the nearest Judge Advocate General (JAG) representative for advice.” Nat’l Def. and Canadian Forces Board of Inquiry into Detainee Incident—14 June 2006, http://www.vcds-vcemd.forces.gc.ca/boi-cde/bid-ced/co-oc-eng.asp (last modified January 28, 2010) [hereinafter Board of Inquiry into Detainee Incident].
-
1.
- 119.
Nat’l Def. and Canadian Forces, the Canadian Forces National Investigation Service (CFNIS), http://www.vcds.forces.gc.ca/cfpm-gpfc/cfpggp/nis-sne/index-eng.asp (last modified April 26, 2007). Jurisdiction also extends to Canadian civilians accompanying Canadian forces in the field. See National Defence Act, Part III.
- 120.
Nat’l Def. and Canadian Forces, Backgrounder: the Canadian Forces National Investigation Service Investigation Process, http://www.cefcom.forces.gc.ca/pa-ap/nr-sp/doc-eng.asp?id=2960 (last modified April 27, 2010) [hereinafter Backgrounder].
- 121.
See, e.g. Board of Inquiry into Detainee Incident, supra note 118.
- 122.
2007 Report, supra note 108, at 11.
- 123.
Canadian Forces Nat’l Investigation Serv. 2008. It should be noted with regard to the latter case that Parliamentary Committees may conduct investigations on their own accord.
- 124.
Backgrounder, supra note 120.
- 125.
Director of Military Prosecutions, Policy Directive no. 001/00: Relationship with Canadian Forces National Investigation Service (2009), available at http://www.forces.gc.ca/jag/publications/CMPS-SCPM/policy-politiques-001-eng.pdf. The Policy Directive was initially issued on March 1, 2000 and was updated on March 18, 2009.
- 126.
Nat’l Def. and Canadian Forces, Canadian Military Prosecution Service, http://www.forces.gc.ca/jag/justice/prosecutions-poursuites-eng.asp (last modified October 12, 2010).
- 127.
National Defence Act § 165.1–165.17.
- 128.
DMP & DDCS are under the general supervision of the JAG by virtue of National Defence Act §§ 165.17 and 249.2 (respectively).
- 129.
Nat’l Def. and Canadian Forces, Canadian Military Prosecution Service, supra note 126. To date, the authority to issue instructions has not been exercised by any JAG.
- 130.
Director of Military Prosecutions, Policy Directive NO. 005/99, Communications with Service Authorities (2009), available at http://www.forces.gc.ca/jag/publications/CMPS-SCPM/policy-politiques-005-eng.pdf. The Policy Directive was initially issued on March 15, 2000 and was updated on March 18, 2009.
- 131.
Director of Military Prosecutions, Policy Directive NO. 009/00, Communications with Unit Legal Advisors (2009). The Policy Directive was initially issued on March 15, 2000 and was updated on March 18, 2009.
- 132.
Nat’l Def. and Canadian Forces, Directorate of Defence Counsel Services, http://www.forces.gc.ca/jag/justice/defence-defense-eng.asp#ourlawyers (last modified September 14, 2010).
- 133.
Nat’l Def. and Canadian Forces, Chief Military Judge (CMJ), http://www.jmc-cmj.forces.gc.ca/index-eng.asp (last modified September 30, 2010).
- 134.
National Defence Act § 9. For a discussion of the role of the JAG, see Nat’l Def. and Canadian Forces, JAG: Military Law, http://www.forces.gc.ca/jag/lawloi/index-eng.asp (last modified July 28, 2010).
- 135.
QR&O, supra note 114, Articles 4.081(1), 4.081(4).
- 136.
Australian Def. Headquarters 2006, paras 13.2 and 13.6.
- 137.
Id. para 13.5.
- 138.
- 139.
Lane v. Morrison (2009) 239 CLR 230, 236 (Austl.).
- 140.
Dep’t of Def., Defence Instructions (General), Admin. 67-2, para 8 (August 7, 2007) (Austl.).
- 141.
See generally id.
- 142.
Extensions may be requested from, and granted by, the investigating officer. Id. para 11.
- 143.
Id. para 8.
- 144.
Robert Creyke, Dir., Austl. Ctr. for Military Law & Justice, Address at the Defence Watchdogs Seminar, 2 (November 26, 2008), available at http://law.anu.edu.au/ACMLJ%5CWatchdogs/Creyke.pdf. Defence Instructions (General), supra note 140, at C-1–C-3.
- 145.
On procedures during the inquiries, see Australian Def. Force, Australian Defence Force Publication 6.1.4: Administrative Inquiries Manual (2006).
- 146.
See Report of an Inquiry Officer, Possible Civilian Casualties from Close Air Support Strike at Afghanistan on 28 April 09, available at http://www.abc.net.au/mediawatch/transcripts/1011_redacted.pdf; see also Report of an Inquiry Officer into the Shooting of Two Afghan National Policemen, 11 August 2009, available at http://www.defence.gov.au/coi/reports/EOF_R.pdf.
- 147.
See Report of an Inquiry Officer, Possible Civilian Casualties from Close Air Support Strike at Afghanistan on 28 April 09, supra note 146, paras 38–39.
- 148.
Id. para 41.
- 149.
Dep’t of Def., Australian Defence Force Investigative Service Fact Sheet, http://www.defence.gov.au/mjs/resources/1ADFIS%20fact%20sheet%20-%20October%202007.pdf.
- 150.
Defence Force Discipline Act 1982 (Cth) S 10 (Austl.); Criminal Code Act 1995 (Cth) div 268 (Austl.).
- 151.
It would be common, however, for the vast minor disciplinary matters to be handled by commanders pursuant to their powers as such under the DFDA. In such cases, they would be advised by attached legal officers on processes, but not with regard to prosecution or defense.
- 152.
Defence Force Discipline Act 1982, §§ 179–88.
- 153.
This system is likely to change in the near future if Parliament passes a bill to create a Military Court of Australia under Chapter III of the Constitution. .
- 154.
Defence Force Discipline Act 1982, pt. XIA.
- 155.
Dep’t of Def., Organizations within the Military Justice System that can Provide Assistance to ADF Members, http://www.defence.gov.au/mjs/organisations.htm (Austl.).
- 156.
UK Manual, supra note 60, para 16.36 (quoting ICC Statute, supra note 21, Article 28).
- 157.
Armed Forces Act, 2006, c. 52, § 343 (Eng.).
- 158.
Armed Forces (Service Inquiries) Regulations, 2008, S.I. 2008, No. 1651, reg. 3.
- 159.
Armed Forces Act, 2006, c. 52, explanatory notes, at 1–4 (Eng.).
- 160.
Armed Forces Act, 2006, c. 52, §§ 113–15 (Eng.).
- 161.
Manual of Service Law, Chap. 6, annex D–E (Ver. 1.0 2009).
- 162.
Findlay v. United Kingdom, 24 Eur. Ct. H.R. 221, 223 (1997). The legislation effecting the revision was the Armed Forces Act of 1996. It has since been superseded by the Armed Forces Act of 2006.
- 163.
Armed Forces Act, 2006, c. 52, § 364 (Eng.).
- 164.
Id. Article 365.
- 165.
In Re Al Skeini v. Secretary of State, (2008) 1 AC 153 [Baha Mousa Case] (Eng.); The Queen (on the application of Al-Sweady and Others) v. Secretary of State for the Defence [2009] EWHC 2387 (Admin) (October 2, 2009) (Eng.). For information on the Al- Sweady inquiry, see the inquiry webpage at http://www.alsweadyinquiry.org.
- 166.
Multiple interviews by author of senior Royal Navy and Royal Air Force legal officers (August–September 2010).
- 167.
Inquiries Act, 2005, c. 12, § 1 (Eng.).
- 168.
Id. §§ 9, 18.
- 169.
Press Statement, General Sir Richard Dannatt, Ministry of Defence (April 30, 2007) (cited in Joint Committee on Human Rights 2008, para 6).
- 170.
British Army 2008, 10–16.
- 171.
MOD Announces Baha Mousa Public Inquiry2008.
- 172.
See text accompanying notes 58–59.
- 173.
Dep’t of Defense Directive (DoDD) 2311.01E, DoD Law of War Program, May 9, 2006, paras 4.4 and 4.5.
- 174.
Id. para 3.2; see also Lloyd J. Austin III, US Dep’t of Defense, Chairman of the Joint Chiefs of Staff Instruction 5810.01C, Implementation of the DoD Law of War Program, para 5 (2007).
- 175.
See Jackson 2010, at 95, 98.
- 176.
Dep’t of Defense Directive (DoDD) 2311.01E, supra note 173, para 6.3.
- 177.
Id. para 6.4.
- 178.
Id. para 6.5.
- 179.
Id. para 6.6. The Combatant Commander is also responsible for determining “the extent of investigation and manner in which a reportable incident not involving US or enemy persons will be investigated by US Forces and ensur[ing] such incidents are reported promptly to appropriate US Agencies, allied governments, or other appropriate authorities.” Id. para 5.11.7.
- 180.
For a useful discussion of US practice regarding reporting and investigating possible IHL violations, see Jackson 2010.
- 181.
See United States v. Chessani, 2009 N-M Ct. Crim. App. 200800299 U 1, 5–7.
- 182.
Memorandum from Investigating Officer to Commander, US Marine Corps Forces, Central Command, Executive Summary of Pretrial Investigative Report in the Case of Lieutenant Colonel Jefferey R. Chessani, USMC (July, 10, 2007), in Jackson 2010, at 96.
- 183.
The five services are: Air Force, Army, Coast Guard, Marine Corps, and Navy.
- 184.
Joint Service Committee on Military Justice, Manual for Courts-Martial II-19 (2008) [hereinafter MCM].
- 185.
Id.
- 186.
Air Force Judge Advocate General’s School 2009. Procedures are governed by Air Force Instruction (AFI) 90-301, Inspector General Complaints Resolution, May 15, 2008, although the inherent authority of the commander, not the instruction, is the authority for the investigation.
- 187.
Air Force Judge Advocate General’s School 2009, at 403. For instance, it may not be feasible to conduct a full investigation into every case involving collateral damage to civilian property during an attack, but a commander may nevertheless direct an inquiry to document facts and circumstances. Should the commander believe that something may have gone wrong during the attack, he or she might order an investigation. However, in the event criminal conduct is suspected (e.g. an intentional attack against civilian objects), referral to a military criminal investigative agency would be appropriate.
- 188.
Freedom of Information Act, 5 U.S.C. § 552 (2006); Privacy Act, 5 U.S.C. § 552(a) (2006).
- 189.
Air Force Instruction (AFI) 90-301, supra note 186, paras 2–45. The right to remain silent is set forth in Article 31 of the UCMJ for military personnel and the Fifth Amendment of the US Constitution for civilians. See UCMJ Article 31, 10 U.S.C. § 831 (2006); US Const. amend. V.
- 190.
UCMJ Article 15, 10 U.S.C. § 815.
- 191.
Air Force Judge Advocate General’s School 2009, at 156.
- 192.
- 193.
Air Force Policy Directive 71-1, Criminal Investigations and Counterintelligence, para 1.4.2 (2010); See also Air Force Instruction 71-101 (vol. 1), Criminal Investigations (1999).
- 194.
Maximum punishments for particular offenses are set forth in the individual punitive articles (offenses) set forth in MCM, supra note 184, pt. IV. Punishment may also be limited based on the rank of the accused. MCM, supra note 184, at RCM 1003. A Special Court-Martial may not adjudge a sentence that includes death, dishonourable discharge, dismissal of an officer, confinement in excess of one year, hard labor without confinement for more than three months, or certain forfeitures of pay. UCMJ, 10 U.S.C. § 819.
- 195.
See generally Air Force Instruction 51-201, Administration of Military Justice (2007) [hereinafter AFI 51–201].
- 196.
See MCM, supra note 184, RCM 1101–07, 1201–05; AFI 51–201, supra note 195, Chap. 9.
- 197.
AFI, 51–201, supra note 195, para 5.9.
- 198.
Id. paras 5–1, 5–3.
- 199.
MCM, supra note 184, RCM 109.
- 200.
Id. RCM 104.
- 201.
Magarrelli 2008, p. 11.
- 202.
Dep’t of Justice, Office of the Inspector General 2009.
- 203.
- 204.
See generally Dep’t of the Army Headquarters & Marine Corps Combat Development Command Headquarters 2006.
- 205.
Jackson 2010, at 98 (citing Chessani Article 32 Investigation Officer Report).
- 206.
See id. at 99.
- 207.
Such information may not be self-evident in a situation of intense fighting that involves the participation of various units moving in and out of the combat zone. While some military activities, such as air strikes, may be documented with video footage, manoeuvres of ground forces typically lack such documentation.
- 208.
This requirement ensures the impartiality of the officer directing the investigation and preserves the independence of those conducting it.
- 209.
For example, it may be vital in the investigation of an attack involving civilian casualties to quickly identify the causes of the incident so as to preclude repetition.
- 210.
In the context of armed conflict, such a requirement would make little sense. Sensitive intelligence sources might be compromised, operational tactics and military strategy could become public, witnesses may be placed at risk due to their cooperation, classified weapons data could be revealed, etc.
- 211.
For instance, a lawyer who provided legal advice on whether a particular target represented a military objective may not subsequently serve as a legal adviser for an investigation or prosecution involving the legality of a strike against that target. The definition of military objective is at AP I, supra note 22, Article 52.2.
- 212.
See Israel’s Report to the UN Misstates the Truth 2010 .
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Abbreviations
- ADF
-
Australian Defence Force
- ADFIS
-
Australian Defence Force Investigative Service
- AFOSI
-
Air Force Office of Special Investigation
- CFNIS
-
Canadian Forces National Investigation Service
- CFPM
-
Canadian Forces Provost Marshall
- CMAC
-
Court-Martial Appeal Court
- CMPS
-
Canadian Military Prosecution Service
- DMP
-
Director of Military Prosecutions
- ICCPR
-
International Covenant on Civil and Political Rights
- ICRC
-
International Committee of the Red Cross
- IDF
-
Israel Defence Force
- IED
-
Improvised explosive device
- IGADF
-
Inspector General of the Australian Defence Force
- IHL
-
International humanitarian law
- JAG
-
Judge Advocate General
- LOAC
-
Law of armed conflict
- MPCC
-
Military Police Complaints Commission
- NATO
-
North Atlantic Treaty Organisation
- QA
-
Quick Assessment
- SPA
-
Service Prosecuting Authority
- US
-
United States of America
- UCMJ
-
Uniform Code of Military Justice
- UNOSOM
-
United Nations Mission in Somalia
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Schmitt, M.N. (2011). Investigating Violations of International Law in Armed Conflict. In: Essays on Law and War at the Fault Lines. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-740-1_12
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