Investigating Violations of International Law in Armed Conflict

Investigating Violations of International Law in Armed Conflict – Michael N. Schmitt
On December 27, 2008, the Israel Defence Force (IDF) launched Operation Cast Lead into Gaza in an attempt to thwart continuing attacks by Hamas and other Palestinian organized armed groups. Military operations continued for twenty-two days until Israel declared a unilateral cease-fire and withdrew its forces. Allegations of widespread human rights and international humanitarian law (IHL) violations ensued. This article examines the legal standards bearing on the conduct of investigations.

It intentionally avoids the politically charged matter of Israeli and Palestinian investigative practices. Similarly, it draws no conclusions as to the Committee’s assessment thereof. Rather, the goal is more general — to identify criteria against which investigations must be judged under international law and, in the process, clarify the relationship between IHL legal criteria and those residing in human rights law. This broader examination is essential, for claims of non-compliance are limited to neither Operation Cast Lead, nor to the conflict between Israel and the Palestinians.10 Moreover, since such investigations are increasingly frequent, an urgent need exists for practical legal guidance on their conduct. The inquiry will proceed in four phases. First, the relevant IHL will be set forth. Since the lex scripta is limited, an effort will be made to identify criteria for investigations that are, or are not, implicit in the law. Second, human rights norms regarding investigations will be briefly surveyed, as will the relationship between IHL and human rights law. The purpose is to determine which body of law applies to investigations, and how. Third, the practice of four States (Canada, Australia, United Kingdom and United States) will be examined to determine whether there are commonalities that can elucidate the extant norms. Finally, the article will conclude by setting forth those characteristics of investigations that represent not “best practice” or lex ferenda, but instead the applicable minimum criteria for compliance with the lex lata.

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