Michal Drabik

Abstract

It is generally believed that states do not have an obligation to investigate incidents involving collateral damage absent a suspicion that a grave breach of International Humanitarian Law (“IHL”) has occurred. This paper argues that, although there is no affirmative investigative duty expressed in any IHL treaty, a general duty to investigate is clearly implied by two requirements contained in IHL treaties: the duty to examine every incident that amounts to a grave breach and the duty to punish offenders who violate IHL provisions. As applied to the U.S. military, while this general investigative duty may at times prove troublesome, compliance does not seem impossible. First, the depth and the quality of the obligatory investigations are contextual and vary according to the conditions at the time of the inquiry. Second, since a number of the U.S. military’s own regulations require commanders to gather and analyze data about the consequences of each attack, a duty to investigate does not impose an extra burden but merely restates preexisting obligations. If the U.S. military regulations were followed then all potential violations of the principle of proportionality would be reported and investigated by the U.S. military. Whether or not those rules actually are followed, however, is unknown because the U.S. military does not disclose this information. Since IHL does not require investigations to be conducted publicly or demand their results released, the U.S. military elects to hide its investigative activities, keeping the public unaware of what it actually does.

Volume

22

Issue

Online

Page

15

Year

2013

Rights

http://rightsstatements.org/vocab/InC/1.0/

Publication Title

Minnesota Journal of International Law

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