Legal Observations > Investigating Violations in Armed Conflict

Transparency in armed conflict: accountability for violations of the right to life in armed conflict and occupation

33. It is of continuing concern that States often fail to comply with their obligation to effectively investigate, prosecute, and punish violations of the right to life in situations of armed conflict and occupation. This failure has taken a number of forms. Policies on investigating deaths have permitted unjustifiable exceptions and have often failed to provide for impartiality and independence. During armed conflicts, even grave crimes such as murder are often leniently punished when committed by members of the armed forces. Trends in the investigation, prosecution, and punishment of commanding officers have been even less encouraging. Impunity for individuals has not been the only failure. In some cases, a strategic reluctance to engage in “body counts” may have impeded full consideration of how the impact of armed conflict on civilian populations can be minimized. Efforts at monitoring the consequences of choices of weapons and tactics on the incidental loss of civilian life generally remain ad hoc, leaving compliance with requirements of proportionality and precautionary measures under-examined.14

34. These practices threaten to roll back 50 years of progress in subjecting armed conflict to the rule of law. The Geneva Conventions of 12 August 1949 first established the legal obligation of States to investigate alleged unlawful killings and to prosecute their perpetrators. Elaborating the general obligation to “respect and to ensure respect” for humanitarian law,15 the Geneva Conventions mandated the penal repression of violations. In particular, when a State receives allegations that someone has committed or ordered a grave breach - such as the “wilful killing” of a protected civilian16 - the State is then legally obligated to search for him and either try him before its own courts or extradite him to another State that has made out a prima facie case.17 Should he be found guilty, the State must impose an “effective penal sanction[]”.18 However, gaps remained in this accountability regime. In international armed conflicts, some individuals were excluded from protection by their nationality.19 In non-international armed conflicts, no mechanism for penal repression was provided.20 The scope of legal protection has, however, steadily improved. Since the Geneva Conventions were adopted in 1949, States have both filled its gaps and supplemented its protections with new instruments of human rights law, such as the ICCPR, which was adopted in 1966. Thus, with respect to non-international conflicts, the additional protection offered by human rights law was acknowledged in the Preamble to the Second Additional Protocol adopted in 1977.21 Today, human rights law and humanitarian law together require accountability in all circumstances.

35. Human rights law imposes a duty on States to investigate alleged violations of the right to life “promptly, thoroughly and effectively through independent and impartial bodies”.22 This duty is entailed by the general obligation to ensure the right to life to each individual. The particular measures States may take to fulfil this duty have been elaborated in detail with respect to law enforcement operations. Most prominently, in 1989 the Economic and Social Council adopted the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.23 These detailed principles should guide States whenever they carry out law enforcement operations, including during armed conflicts and occupations.24 However, in other situations arising out of armed conflict and occupation, the modalities of the duty to investigate alleged violations have received less attention.

36. Armed conflict and occupation do not discharge the State’s duty to investigate and prosecute human rights abuses. The right to life is non-derogable regardless of circumstance.25 This prohibits any practice of not investigating alleged violations during armed conflict or occupation. As the Human Rights Committee has held, “It is inherent in the protection of rights explicitly recognized as non-derogable … that they must be secured by procedural guarantees … The provisions of the [ICCPR] relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights.”26 It is undeniable that during armed conflicts circumstances will sometimes impede investigation. Such circumstances will never discharge the obligation to investigate - this would eviscerate the non-derogable character of the right to life - but they may affect the modalities or particulars of the investigation. In addition to being fully responsible for the conduct of their agents, in relation to the acts of private actors States are also held to a standard of due diligence in armed conflicts as well as peace. On a case-by-case basis a State might utilize less effective measures of investigation in response to concrete constraints. For example, when hostile forces control the scene of a shooting, conducting an autopsy may prove impossible. Regardless of the circumstances, however, investigations must always be conducted as effectively as possible and never be reduced to mere formality.27 In this regard, there are several areas of special concern.

37. The State obligation to conduct independent and impartial investigations into possible violations does not lapse in situations of armed conflict and occupation.28 While the modalities of this obligation in situations of armed conflict have not been fully settled, some points are clear:

• States must establish institutions capable of complying with human rights law obligations; there is no double standard for military justice. While human rights law does not dictate any particular institutional arrangement for the administration of justice, neither does it permit exceptions to its requirements. Investigations and prosecutions proceeding under military jurisdiction must - in each case and without exception - comply with the requirements of independence and impartiality;

• As an empirical matter, subjecting allegations of human rights abuse to military jurisdiction often leads to impunity.29 In such situations, investigation and prosecution by bodies independent of the military is necessary;

• While commanding officers have a duty to investigate and repress violations,30 there is growing awareness that additional mechanisms of investigation are needed in order to ensure impartiality.31

38. Military justice was a form of self-regulation that ensured discipline among a State’s armed forces and that led, as a matter of reciprocity, to lawful conduct on the part of opposing forces. As international law has increasingly protected civilians, aspects of military justice have begun to appear anachronistic. Many States have responded by imposing restrictions on military jurisdiction under both domestic and international law. All States should study whether their systems of justice provide victims of armed conflict with the reality and the appearance of genuinely independent and impartial investigation.

39. The legal obligation to effectively punish violations is as vital to the rule of law in armed conflict as in peace. It is, thus, alarming when States punish crimes committed against civilians and enemy combatants in a lenient manner. The legal duty to punish those individuals responsible for violations of the right to life is not a formality. Punishment is required in order to ensure the right to life by vindicating the rights of the victims and preventing impunity for the perpetrators. Therefore, States must punish those individuals responsible for violations in a manner commensurate with the gravity of their crimes. International law does not specify a particular schedule of sentences, but there are many indications of whether a State is effectively penalizing unlawful killings, including:

• Are the crimes a State’s soldiers commit against civilians and enemy combatants punished as harshly as the crimes they commit against members of their own armed forces?;

• Are crimes committed against foreign nationals punished as harshly as crimes committed against compatriots?;

• How do the punishments imposed compare with those imposed by other States and by international criminal courts and tribunals?

40. It is especially important to note that the stress and confusion of combat do not justify the rejection or avoidance of the applicable standards; the realities of armed conflict are fully accommodated by the substance of the applicable law and by the established defences to criminal culpability.32 Soldiers must be trained and held to the standards of international law. Any double standard in punishment is inimical to the rule of law and may implicate the prohibition of discrimination in human rights law.

41. The obligation to investigate is part and parcel of the obligation to ensure the right to life and, thus, entails more than the determination of criminal responsibility. States are also responsible for undertaking the systematic supervision and periodic investigation necessary to ensure that their institutions, policies, and practices ensure the right to life as effectively as possible. Canada’s experience in Somalia illustrates the complementary roles of criminal and non-criminal investigation. Canada prosecuted and punished several soldiers for their actions in Somalia, but it also established a Commission of Inquiry to determine the institutional defects that allowed those abuses to occur. By identifying pervasive problems in how rules of engagement were drafted, were disseminated through the chain of command, and were taught to soldiers on the ground, Canada improved its institutional capacity to better ensure the right to life in the future. States must constantly monitor and investigate whether they are effectively ensuring human rights law and adopt all necessary measures to prevent the recurrence of a violation.

42. Finally, it is important to acknowledge the unique characteristics of armed conflict. However, the question of what rules govern the use of lethal force is completely distinct from the question of investigating violations of these rules. While even intentional killing is often permitted in armed conflict, a State cannot determine whether a particular act was lawful without first investigating what occurred. Whether, for example, the deceased was taking part in hostilities is an inherently factual question, requiring factual investigation. Likewise, the Special Rapporteur cannot determine whether a particular incident falls within his mandate without first examining its facts. When he receives information alleging a violation, he will often need to be informed by the State concerned of the evidentiary basis for its determination regarding any status or activity that may have justified the use of lethal force. Conclusory determinations that the deceased was a combatant or was taking part in hostilities when killed do not enable the Special Rapporteur to respond effectively to information and swiftly pursue the elimination of extrajudicial, summary or arbitrary executions.

43. In the years ahead a greater effort should be made to design indicators and criteria to facilitate an evaluation of decisions as to proportionality and to give a greater objective dimension to such judgement calls. In the course of conflict any such indicators would necessarily be applied by the military personnel involved and would not readily be subject to external scrutiny. Ex post facto monitoring, however, would be possible if belligerents undertook to keep records of their evaluations and to make them public after a certain period of time has elapsed following the end of a given conflict. Such record-keeping would also facilitate prosecution and defence in possible war crimes trials. In addition, subsequent disclosure would allow belligerents to counter false accusations and would counter the suggestions made by some critics that international humanitarian law is not respected in war. By so doing it would strengthen the potential willingness of those involved in such decision-making to respect the law.

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60. The human rights obligation to investigate alleged violations of the right to life promptly, thoroughly and effectively through independent and impartial bodies does not cease to apply during armed conflict. Similarly, the obligation to punish those individuals responsible for violations in a manner commensurate with the gravity of their crimes applies during armed conflict. States must establish institutions capable of complying with these human rights law obligations; there is, in particular, no double standard for military justice.

61. National-level investigations of major incidents involving alleged violations of international human rights or humanitarian law by the armed or security forces are indispensable. A more detailed study needs to be undertaken in order to identify the principal problems that have been experienced in the past in relation to the conduct of, and follow-up to, such inquiries and to recommend best practices which might be taken into account by Governments in the future.

14 See e.g. Marco Sassòli, “Targeting: the scope and utility of the concept of military objectives for the protection of civilians in contemporary armed conflicts”, in D. Wippman and M. Evangelista (eds.), New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts (2005) 181 at 204-205.

15 Common article 1 to the Geneva Conventions of 12 August 1949; see also Protocol I, article 87, paragraph 3.

16 This is not the only grave breach that may intentionally or unintentionally result in loss of life. See Geneva Conventions I-IV, articles 50/51/130/147; Protocol I, articles 11, 85. Under the Geneva Conventions of 1949, “torture or inhuman treatment, including biological experiments” and “wilfully causing great suffering or serious injury to body or health” might well lead to a death that is not itself wilful. Less directly, the same is true of “compelling a prisoner of war [or person protected in Geneva (IV)] to serve in the forces of the hostile Power” or “wilfully depriving a prisoner of war [or person protected in Geneva (IV)] of the rights of fair and regular trial prescribed in this Convention”. Grave breaches related to medical procedures are extended in article 11, paragraph 4 of Protocol I. In addition, article 85, paragraph 3 of Protocol I classifies a number of acts as grave breaches “when committed wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health”. (a) Making the civilian population or individual civilians the object of attack; (b) Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in article 57, paragraph 2 (a) (iii); (c) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in article 57, paragraph 2 (a) (iii); (d) Making non-defended localities and demilitarized zones the object of attack; (e) Making a person the object of attack in the knowledge that he is “hors de combat”.

17 Article 49/50/129/146 of the Geneva Conventions (I-IV).

18 Article 49/50/129/146 of the Geneva Conventions (I-IV).

19 See Geneva Convention (IV), article 4. Note that the broader substantive reach of the prohibition of wilful killing. Common article 3 to the Geneva Conventions; Protocol I, article 75. These provisions reflect customary international law.

20 Common article 3 to the Geneva Conventions. Protocol II does not include any accountability mechanisms either.

21 For an analysis of the simultaneous and complementary relationship of human rights and humanitarian law see E/CN.4/2005/7, paragraphs 41-54.

22 Human Rights Committee, general comment No. 31, “Nature of the legal obligation on States Parties to the Covenant” (2004), (CCPR/C/21/Rev.1/Add.13, para. 15). See also Commission on Human Rights resolution 2004/37, paragraph 5, in relation to the mandate of the Special Rapporteur: “Reiterates the obligation of all States to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions, to identify and bring to justice those responsible, while ensuring the right of every person to a fair and public hearing by a competent, independent and impartial tribunal established by law, to grant adequate compensation within a reasonable time to the victims or their families and to adopt all necessary measures, including legal and judicial measures, in order to bring an end to impunity and to prevent the recurrence of such executions, as stated in the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.”

23 Economic and Social Council resolution 1989/65 of 24 May 1989.

24 See Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Principle 1 (“… Exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency may not be invoked as a justification of such executions. Such executions shall not be carried out under any circumstances including, but not limited to, situations of internal armed conflict, excessive or illegal use of force by a public official or other person acting in an official capacity or by a person acting at the instigation, or with the consent or acquiescence of such person, and situations in which deaths occur in custody.”).

25 ICCPR, article 4, paragraph 2.

26 Human Rights Committee, general comment No. 29, “Derogations from provisions of the Covenant during a state of emergency” (2001), paragraph 15.

27 See Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of July 29, 1988, paragraph 177: “The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.”

28 Human Rights Committee, general comment No. 31 (2004), paragraph 15 (“the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies … A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant”); Human Rights Committee, general comment No. 29: Derogations from provisions of the Covenant During a State of Emergency (2001), paragraph 15 (“It is inherent in the protection of rights explicitly recognized as non-derogable … that they must be secured by procedural guarantees ... The provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights”).

29 Former Special Rapporteurs on extrajudicial, summary or arbitrary executions have identified this relationship time and again. E/CN.4/1995/61, paragraph 93 (“Military tribunals, particularly when composed of military officers within the command structure of the security forces, very often lack the independence and impartiality required under international law. Military jurisdiction over human rights violations committed by members of the security forces very often results in impunity”). E/CN.4/1999/39, paragraph 67 (“In some cases situations of impunity are a direct product of laws or other regulations which explicitly exempt public officials or certain categories of State agents from accountability or prosecution … The Special Rapporteur is also increasingly concerned about the practice of prosecuting members of security forces in military courts, which often fall short of international standards regarding the impartiality, independence, and competence of the judiciary”).

30 Protocol I, article 87.

31 The development of the United Kingdom’s policy on investigations over the past few years is instructive. The June 2003 policy of having the Royal Military Police (RMP) investigate and then decide on prosecution was shortly replaced with the July 2003 policy under which, “If the Commanding Officer (CO) of the soldier was satisfied, on the basis of the information available to him, that the soldier had acted lawfully and within the rules of engagement, then there was no requirement to initiate an investigation by the military police.” Initially, then, the United Kingdom moved from a greater to lesser level of independence in the investigative process. However, according to Lieutenant General Sir John Reith, Chief of Joint Operations, “Between January and April 2004 there was a further reconsideration of this policy. This was prompted by the fact that the environment had become less hostile and also by the considerable media and Parliamentary interest in incidents involving UK forces in which Iraqis had died. On 24 April, a new policy was adopted by MND (SE) [Multi-National Division - Southeast] which required all shooting incidents involving UK forces which result in a civilian being killed or injured to be investigated by SIB (RMP). Exceptionally the Brigade Commander may decide that an investigation is not necessary and in any such case the decision must be notified to the Commander MND (SE) in writing.” Al Skeini v. Secretary of State for Defence, High Court of Justice, Queen’s Bench Division, Divisional Court, [2004] EWHC 2911 (Admin), 14 December 2004, paragraphs 47-54. [The quote from Lt. Gen. Reith is from his written witness statement].

32 See generally Marco Sassòli, “Le génocide rwandais, la justice militaire suisse et le droit international”, Volume 12, Revue suisse de droit international et de droit européen (2002) 151, at 175-176.