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Joint Series on International Law and Armed Conflict: The Obligation to Investigate Violations of IHL

Published on September 30, 2016        Author: 

This is the third post in our joint blog series arising out of the 2016 Transatlantic Workshop on International Law and Armed Conflict.

The author writes in his personal capacity, the views expressed in this post are his own, and not those of the Royal Navy or UK Ministry of Defence.

Introduction

Understanding the parameters of a state’s obligation to investigate alleged violations of international humanitarian law is crucial to both the legitimacy of armed forces, and their military effectiveness.   If a state was unwilling, or unable, to investigate egregious behaviour by their armed forces this would not only contravene their obligations under the Geneva Conventions it may lead to investigations by the International Criminal Court for those states parties to the Rome Statute, but also attract significant opprobrium.  Equally, in planning military operations, significant resources are often required to properly investigate alleged violations of IHL.  This in turn requires trained personnel in sufficient numbers to perform this function, and robust military doctrine and national legislation to guide it.  This brief paper seeks to explore the extent of the obligation to investigate alleged violations of IHL, what constitutes a ‘compliant’ investigation, and how this requirement interacts with the obligation to investigate in international human rights law.

1. To what extent does LOAC/IHL provide an obligation to investigate alleged violations?

International Armed Conflict

Rule 158 of the International Committee of the Red Cross’s Study on Customary International Law describes the obligation of states to investigate war crimes in the following terms:

States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.

The ICRC Rule 158 is reflected in numerous international instruments and supported by academic opinion. Additionally, the preamble to the Statute of the International Criminal Court recalls “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”   Read the rest of this entry…

 
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