Abstract
This article explores the duty to investigate civilian casualties during armed conflict. It considers the circumstances in which a State is obliged under the Law of Armed Conflict to investigate civilian casualties caused by its armed forces. The article further discusses in what manner, once the duty to investigate materializes, it should be carried out drawing a distinction between a formal criminal investigation and a more flexible procedure which is referred to as a post-attack review.
The author is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, SOAS, University of London; PhD Candidate, Institute of Advanced Legal Studies, University of London. I am grateful to Charles Garraway, Iain Scobbie, Tatyana Eatwell, Adrian Garcia, members of the Editorial Board and anonymous peer reviewers for their valuable comments on earlier drafts. Any errors are my own.
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- 1.
The term ‘combatants’ is used in its generic meaning and does not imply the status of a combatant or of a prisoner of war in the context of an international armed conflict.
- 2.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977) 1125 UNTS 3 (‘AP I') Articles 48, 51, 57. These fundamental rules form part of customary LOAC and thus apply during international and non-international armed conflicts, see Henckaerts and Doswald-Beck 2005 (‘ICRC Study'), p. 25 (r 7), p. 37 (r 11), p. 46 (r 14), p. 51 (r 15).
- 3.
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (‘Fourth Geneva Convention'), Article 147; AP I, Article 85; Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (‘Rome Statute') Article 8.
- 4.
Uhler et al. 1958 (‘ICRC Commentary on the Geneva Conventions’) p. 597.
- 5.
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Article 49; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Article 50; Convention (III) relative to the Treatment of Prisoners of War, Article 129; Fourth Geneva Convention, Article 146.
- 6.
AP I, Article 85(1); Sandoz et al. 1987 (‘ICRC Commentary') pp. 973–974, 992.
- 7.
Rome Statue, Articles 8, 15.
- 8.
Henckaerts and Doswald-Beck 2005, pp. 607–609 (r 158) and the sources cited there; see also, for example, UNSC Res 1894 (2009), UNSC Presidential Statement S/PRST/2013/2 (12 Feb 2013), UNGA Res 64/10 (5 November 2009), UNGA Res 60/147 (16 December 2005) adopting the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (‘Basic Principles on the Right to a Remedy').
- 9.
Schmitt 2011, pp. 31, 79. The recently published Turkel Report has discussed the duty to investigate LOAC violations, focusing on the Israeli experience, and concluded that a reasonable suspicion or a credible accusation that a war crime has been committed gives rise to an obligation to open a criminal investigation, Turkel Commission 2013, p. 100. The Turkel Commission was established by the Israeli government to examine whether Israel's investigations practice conforms with the state's obligations under international law; see also Alon Margalit, ‘Some Observations on the Turkel Report and the Investigation of Wrongdoing by the Armed Forces' (Turkel Commission 2013) EJIL: Talk! http://www.ejiltalk.org/some-observations-on-the-turkel-report-and-the-investigation-of-wrongdoing-by-the-armed-forces/. Accessed 22 May 2013.
- 10.
See n 5; Rome Statue, Articles 8, 25; Henckaerts and Doswald-Beck 2005, pp. 551–554 (r 151).
- 11.
Uhler et al. 1958, p. 593.
- 12.
HCJ 8794/03 Hess v Military Advocate General (judgment of 23 December 2008) (‘Hess Case'). For an unofficial English version see <http://www.adh-geneva.ch/RULAC/pdf_state/HCJ-decision-8794-03-1-.pdf>. Accessed 22 May 2013.
- 13.
IDF Spokesperson, Findings of the Inquiry into the Death of Salah Shehadeh (2 August 2002) http://www.mfa.gov.il/MFA/Government/Communiques/2002/Findings%20of%20the%20inquiry%20into%20the%20death%20of%20Salah%20Sh. Accessed 22 May 2013.
- 14.
Margalit 2012, p. 147.
- 15.
Human Rights Watch 2003, pp. 20–21.
- 16.
Ibid., pp. 24–26.
- 17.
Rajiv Chandrasekaran, ‘NATO Says US Airstrike in Kunduz Killed 30 Civilians', Washington Post (5 September 2009).
- 18.
Amnesty International, ‘German Government Must Investigate Deadly Kunduz Airstrikes' (30 October 2009) http://www.amnesty.org/en/news-and-updates/news/afghanistan-german-government-must-investigate-deadly-kunduz-airstrikes-20091030. Accessed 22 May 2013.
- 19.
John Goetz, ‘NATO's Secret Findings: Kunduz Affair Report Puts German Defense Minister Under Pressure' Spiegel (19 January 2010) <http://www.spiegel.de/international/germany/nato-s-secret-findings-kunduz-affair-report-puts-german-defense-minister-under-pressure-a-672468-2.html>. Accessed 22 May 2013.
- 20.
Ibid.
- 21.
See Fourth Geneva Convention, Article 147; AP I, Article 85; Rome Statute, Article 8. While LOAC and International Criminal Law do not impose criminal responsibility on individuals for a failure of precautions, States might choose to do so and create additional grounds for responsibility in their domestic laws. For a discussion of criminal responsibility under International Criminal Law and under German domestic criminal law in the context of the September 2009 Kunduz incident discussed earlier, see Groeben 2010, pp. 469, 486–489.
- 22.
Uhler et al. 1958, p. 597.
- 23.
Sandoz et al. 1987, p. 994.
- 24.
- 25.
Uhler et al. 1958, p. 16.
- 26.
Fourth Geneva Convention, Article 146; AP I, Articles 85(1), 86(1). For similar provisions in the 1949 Geneva Conventions, see n 5.
- 27.
Uhler et al. 1958, p. 594.
- 28.
AP I, Article 87(1).
- 29.
Ibid., Article 87(3).
- 30.
Sandoz et al. 1987, p. 975.
- 31.
See Henckaerts and Doswald-Beck 2005, p. 495 (r 139) as well as p. 558 (r 153) and especially at p. 562 (“Failure to punish subordinates who commit war crimes can result from a failure to investigate possible crimes and/or failure to report allegations of war crimes to higher authorities”).
- 32.
Sandoz et al. 1987, p. 1022.
- 33.
Crawford 2008, para 65.
- 34.
The Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Article 3; AP I, Article 91; Henckaerts and Doswald-Beck 2005, p. 537 (r 150).
- 35.
International Law Commission 2001, p. 106 (article 37).
- 36.
Basic Principles on the Right to a Remedy (n 8 above) Article 24.
- 37.
Judge Advocate General's Legal Center and School 2008, p. 99. These investigations follow the procedures prescribed by the Dept. of Army, ‘Army Regulations 15-6 Procedures for Investigating Officers and Boards of Officers' 2006 (‘AR 15-6 Investigations') http://www.apd.army.mil/pdffiles/r15_6.pdf. Accessed 22 May 2013; Following a Freedom of Information Act request by the American Civil Liberties Union (ACLU), the US Administration disclosed some investigation reports by Investigative Officers who examined civilian casualties allegedly caused by US personnel in Iraq and Afghanistan, see ‘ACLU Releases US Army Documents that Depict American Troops’ Involvement in Civilian Casualties in Iraq and Afghanistan' (4 September 2007) <http://www.aclu.org/national-security/aclu-releases-us-army-documents-depict-american-troopsE2%80%99-involvement-civilian-casua>. Accessed 22 May 2013.
- 38.
DoD 2006, s 4.4.
- 39.
Ibid. s 3.2.
- 40.
Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 5810.01D on the Implementation of the DoD Law of War Program (30 April 2010) (‘Instruction on the Law of War Program') s 6(f)(4)(e)(1)–(2) http://www.dtic.mil/cjcs_directives/cdata/unlimit/5810_01.pdf. Accessed 22 May 2013.; see also Manual for Courts-martial (2012) r 303 which allows commanders to hold a preliminary inquiry even in cases of a prima facie offence which falls within the jurisdiction of a court-martial.
- 41.
DoD, ‘Coalition Targeting Procedures' (Foreign Press Center Briefing, a brief by Major General Stanley A. McChrystal, 3 April 2003) <http://2002-2009-fpc.state.gov/19326.htm>. Accessed 22 May 2013.
- 42.
MoD, ‘Top British Commander in Afghanistan Speaks about Minimising Civilian Casualties' (20 August 2009) <http://www.mod.uk/DefenceInternet/DefenceNews/DefencePolicyAndBusiness/TopBritishCommanderInAfghanistanSpeaksAboutMinimisingCivilianCasualties.htm>; MoD, Operations in Afghanistan (November 2010) (‘Operations in Afghanistan') para 19.2 http://www.publications.parliament.uk/pa/cm201011/cmselect/cmdfence/writev/afghanistan/opa7.htm. Operations. Accessed 22 May 2013; see also official statements in the British Parliament, for example, HC Deb 14 April 2003, vol 403, col 571 W; HL Deb 5 July 2007, vol 693, col WA183.
- 43.
Operations in Afghanistan (n 42 above, Annex 2010) para 19.3; Al-Skeini v UK App no 55721/07 (ECHR, 7 July 2011) para 26.
- 44.
Given there is no indication of a violation of the Rules of Engagement (ROE) or LOAC such as targeting combatants hors de combat, see Annex 2010 (‘Battle-Group Operational Order’), paras 26–27; This document was created in the context of UK operations in Afghanistan however submitted to the Baha Mousa Inquiry and reflects also the applicable policy during its operations in Iraq.
- 45.
Office of Judge Advocate General Canada 2001, para 3.
- 46.
- 47.
NATO 2009, p. 10.
- 48.
Operations in Afghanistan (n 42 above) para 19.5.
- 49.
UNSC Res 1776 (2007), 1833 (2008), 1890 (2009), 1917 (2010), 1943 (2010), 1974 (2011), 2011 (2011), 2041 (2012).
- 50.
HCJ 9594/03 Btselem v Military Advocate General (judgment of 21 August 2011) (‘Btselem case') para 2.
- 51.
MAG, ‘Submission to the Turkel Commission' (19 December 2010) (‘MAG submission') pp. 12–13. <http://turkel-committee.gov.il/files/wordocs/niar_emda_eng.pdf>. Accessed 22 May 2013.
- 52.
IDF, ‘Chief of General Staff Order: Procedure for Reporting Incidents Where Palestinian Civilians Were Hurt, 20 November 2005' (annexed to the Israeli government submission to the High Court of Justice in the Btselem case, 28 November 2005) (in Hebrew). According to this procedure, in case of doubt whether a victim “was involved” in the fighting, the incident shall be reported to the MAG and reviewed through a command investigation.
- 53.
HCJ 769/02 Public Committee Against Torture v Government of Israel (judgment of 14 December 2006) (‘Targeted Killings case') para 40. Based on the plain text of the judgment, one may argue that a review procedure is required even when the only person who was hurt was a civilian taking a direct part in hostilities and thus in fact constituted a legitimate target. The High Court opined that since September 2000 an international armed conflict is taking place between Israel and Palestinian armed groups in Israel and the oPt, see paras 1, 16.
- 54.
AP I, Article 57(2).
- 55.
Hess case (n 12 above), paras 7, 9; Btselem case (n 50 above) para 11 (“Even when there is no ground for a criminal investigation, the authorities are not necessarily exempted from the need to consider other means, including those which concern lessons learned in relation to the activity of the armed forces during hostilities, and the need to compensate due to the damage caused to civilians”); HCJ 3292/07 Adalah v Attorney General (judgment of 8 December 2011) (‘Adalah case') para 19 (“…during hostilities, and due to tactics used by terrorist organizations, innocent civilians might get hurt even when Israeli forces act lawfully. Dealing with these fatalities is not necessarily—and should not always be—in the form of criminal prosecution. We deem fit to emphasise again—and the Government did not dispute—when there is a risk of deviation from proper norms of behaviour, even if there is no ground for prosecution, the investigative bodies should hold an examination of the incident using the appropriate tools”).
- 56.
AP I, Article 57.
- 57.
Sandoz et al. 1987, p. 683.
- 58.
Rogers 2004, p. 111. A number of states have made such declarations when ratifying AP I.
- 59.
Cf the UK interpretation of the obligation to give an advance warning in attacks which may affect the civilian population (unless circumstances do not permit such a warning) embodied in AP I, Article 57(2)(c): “Obviously, the point does not arise as a matter of law if military operations are being conducted in an area where there is no civilian population or if the attack is not going to affect the civilian population at all”, MoD 2004, para 5.32.8.
- 60.
Cf AP I, Article 50(1); While this initial investigation may require legal expertise and thus conducted by, or with the assistance of, legal advisers, at this stage it does not seem to be bound by criminal rules of evidence or to attribute criminal responsibility. Therefore a criminal investigation is not necessarily required.
- 61.
See Commission on Human Rights 2006, paras 36–37, 42; The Afghan Independent Human Rights Commission (AIHRC), for example, maintained that international and local forces in Afghanistan “should initiate prompt and thorough investigations in any incident of alleged civilian casualties and publicly release details of their findings” [emphasis added], AIHRC 2008, p. 3; In the Israeli context, see Btselem case (n 50 above) paras 3, 7; ACRI Submission 2011a, paras 11, 118; ACRI Testimony 2011b, pp. 5, 10, 15–16. It should be noted however that this argument, raised by Israeli human rights NGOs in the Israeli-Palestinian context, is possibly limited to the situation of active hostilities in occupied territory. For the legal ‘trigger' under IHRL for the investigation of deaths caused as a result of the use of force by State-agents, see Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, September 1990) Articles 6, 22; McKerr v UK App no 28883/95 (ECHR, 4 May 2001) paras 110–115; Watkin 2004, pp. 1, 19.
- 62.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 1996, 226, 240, para 25.
- 63.
Dinstein 2011, pp. 483, 489.
- 64.
Under the Rome Statute, it is necessary to demonstrate that those involved in the attack knew or should have known that the expected collateral damage will be clearly excessive in relation to the overall expected military advantage, Rome Statute, Article 8(2)(b)(iv).
- 65.
Cf Boothby 2012, p. 543. Noting that where damage caused to civilians despite taking all feasible precautions and the appropriate degree of care due to, for example, a technical fault or a mistake, “there is no breach of the law of armed conflict on which to base a claim in compensation”.
- 66.
Btselem case (n 50 above), paras 9–10; see also Adalah case (n 55 above) para 19 requiring “a risk of deviation from proper norms of behaviour” in order to hold “an examination of the incident using the appropriate tools”.
- 67.
See, for example, Operations in Afghanistan (n 42 above) para 19.6; MAG submission (n 51 above) pp. 4–5.
- 68.
Turkel Commission 2013, p. 149. The Report also suggests that such an assessment is required when the information received, regarding a war crime, is only partial or circumstantial.
- 69.
On the planning process of targeting operations, see Boothby 2012, pp. 476–478.
- 70.
See ICJ Statute, Article 38(1)(b); Schmitt 2011, pp. 56–57 argues that the practice of some developed common-law States (the US, UK, Canada and Australia) reflects a high threshold of performance with respect to investigations which is based on their extensive experience and resources; however state practice that falls short of this high standard does not necessarily violate international law.
- 71.
The Targeted Killings case illustrates this normative ambiguity as the Israeli Court opined that attacks during armed conflict in the oPt which are governed by LOAC targeting rules are subject to additional requirements emanated from IHRL, see Targeted Killings case (n 53 above) para 40.
- 72.
Cf Dinstein 2009, pp. 43, 52. Discussing the Rules of Engagement (ROE) applicable to US soldiers in Afghanistan which are responsive to the concerns of the Afghan government and thus more restrictive than LOAC targeting rules. Moreover, an investigation may serve also operational purposes, for instance assessing the precision of weapon used rather than concerns over civilian casualties, see Ministry of Foreign Affairs, Gaza Operation Investigations: an Update (January 2010) (‘Israel First Update') para 54 <http://www.mfa.gov.il/NR/rdonlyres/8E841A98-1755-413D-A1D2-8B30F64022BE/0/GazaOperationInvestigationsUpdate.pdf>. Accessed 22 May 2013.
- 73.
For example, ISAF 2009; Rajiv Chandrasekaran, ‘NATO Orders Probe of Afghan Airstrike Alleged to Have Killed Many Civilians' Washington Post (5 September 2009).
- 74.
Jeff Davis, ‘Canada’s Record and Compensation Policy for Afghan Civilian Casualties' Embassy: Canada's Foreign Policy Newsweekly (10 September 2008).
- 75.
Sandoz et al. 1987, p. 1023.
- 76.
Ibid.
- 77.
UN Human Rights Council, 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, in the Light of General Assembly Resolution 64/254, Including the Independence, Effectiveness, Genuineness of these Investigations and their Conformity with International Standards 21 September 2010, para 34; Turkel Commission 2013, pp. 257–260; see also a discussion of the US and UK investigations practices, Garraway and Watts 2012.
- 78.
Turkel Commission 2013, pp. 259–260.
- 79.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep 2004, 136, at 177–181, paras 105–106; Human Rights Committee General Comment No. 31 2004, para 11.
- 80.
Report of the Committee of Independent Experts (n 77 above), para 29.
- 81.
Schmitt 2011 p. 55.
- 82.
Al-Skeini (n 43 above), para 164 and the sources cited there. While under IHRL some of the obligations are subject to derogation in time of public emergency which threatens the life of the nation, it is recalled that the right to life is non-derogable, for example, International Covenant on Civil and Political Rights (1966) 999 UNTS 171, Article 4(2). Under the European Convention on Human Rights (ECHR) derogation from the right to life is possible “in respect of deaths resulting from lawful acts of war”. This implies that, subject to derogation, deaths that are lawful under LOAC do not require an investigation which is normally necessary following a possible violation of Article 2 (Right to life) of the ECHR. This notion creates difficulty when suggesting that the applicability of LOAC in time of armed conflict depends upon an explicit derogation by the belligerent State. At any rate, it is recalled that when credible information suggests that the deaths in question have occurred in violation of LOAC, these deaths cannot be regarded as “lawful acts of war” and thus they do seem to trigger a duty to investigate under IHRL. Inconsistency between LOAC and IHRL however remains with respect to the review procedure of LOAC violations which do not trigger individual criminal responsibility as the investigation is commonly carried out by the chain of command and does not fully adhere to IHRL standards, see discussion below at 23 onwards.
- 83.
For example, Mcshane v UK App no 43290/98 (ECHR, 28 May 2002) para 96.
- 84.
Al-Skeini (n 43 above) para 168.
- 85.
- 86.
See Commission on Human Rights 2006, paras 36–37, 42; Isayeva v Russia App no 57947/00 (ECHR, 24 February 2005) paras 211–213; Al-Skeini (n 43 above) paras 166–167.
- 87.
Turkel Commission 2013, pp. 149, 382–383.
- 88.
See generally CIVIC 2010.
- 89.
Turkel Commission 2013, pp. 382–383, recommends that a special team, rather than on-site commanders, will carry out the “fact–finding assessment”. The team “shall be comprised of experts in the theatre of military operations, international law, and investigations”. Yet, it is unclear how this arrangement differs, on a substantive level, from sending professional investigators of the military police to the scene, and it is therefore questionable whether this recommendation would be practical during high-intensity hostilities.
- 90.
For the US practice, see AR 15-6 Investigations (n 37 above) ss 1-5, 2-1, 3-7, 3-10(b); For the UK practice, see Battle-Group Operational Order (n 44 above) paras 26–27; Operations in Afghanistan (n 42 above) paras 19.3–19.4. For Israeli practice, see IDF Supreme Command Order 2.0702, Article 8; HCJ 2366/05 Al-Nabari v IDF Chief of General Staff (judgment of 29 June 2008) (‘Al-Nabari case') paras 10, 12. As for ISAF, it has no disciplinary powers, let alone criminal powers, over deployed troops, and soldiers are subject to their own State's national service laws, Operations in Afghanistan (n 42 above) para 19.5.
- 91.
In Israel, for example, in order to encourage the cooperation of soldiers and to enhance the investigation's effectiveness, the report of a command investigation generally cannot be disclosed or used as evidence in criminal proceedings and will not be shared with the military police should the MAG decides to open a criminal investigation based on an earlier command investigation, Military Justice Act [1955] Article 539A; Al-Nabari (n 90) paras 15, 18.
- 92.
For example, Al-Skeini v Secretary of State for Defence [2004] EWHC 2911 (Admin), [2004] 2 WLR 1401 [49]–[50].
- 93.
See Btselem case (n 50 above) paras 2, 5. Prior to the eruption of violence in September 2000, and during the Palestinian First Intifada (1987-1993), violent confrontations between Israel and Palestinians, mainly unarmed demonstrations in areas where Israel maintained effective control, were not classified as an armed conflict and dealt with by Israel using policing tools. Thus, every Palestinian death caused by Israeli security forces led to the opening of a criminal investigation, MAG Submission (n 51 above) pp. 9–10.
- 94.
Hess case (n 12 above); HCJ 474/02 Tabet v Attorney General (judgment of 30 January 2011).
- 95.
Btselem case (n 50) paras 12–13; Adalah case (n 55 above) para 13; HCJ 1901/08 Dababse v Military Advocate General (judgment of 15 July 2012).
- 96.
Cohen and Shany 2011, pp. 67, 70.
- 97.
Ibid. p. 72.
- 98.
CFNIS website, http://www.vcds.forces.gc.ca/cfpm-gpfc/cfp-ggp/nis-sne/index-eng.asp. Accessed 22 May 2013.
- 99.
Sandoz et al. 1987, pp. 1022–1023.
- 100.
- 101.
Ibid. The investigations of wrongdoing by Canadian Forces during peacekeeping operations in Somalia (1992–1993) came under serious criticism on similar grounds which led to a comprehensive reform in Canada's military justice system, see Report of the Somalia Commission of Inquiry 1997.
- 102.
US commanders—whose unit is implicated in the incident in question—appoint Investigating Officers at their discretion, set the terms of reference for the investigation, and based on the investigation’s findings decide how to proceed and whether to engage the Army Criminal Investigative Command (CID) for further investigation, AR 15-6 Investigations (n 37 above) ss 2-1, 2-3, 3-11, 3-20; Instruction on the Law of War Program (n 40 above) para 6.f.(4)(e)(2). The investigation findings and recommendations will be reviewed by the servicing Judge Advocate; however, the appointing commander is not bound by the legal advice given. UK commanders decide based on a Shooting Incident Review (SIR) “whether or not to instigate a subsequent Service Police investigation”, Battle-Group Operational Order (n 44 above) paras 26–27; Operations in Afghanistan (n 42 above) paras 19.3–19.4. Presumably, this practice changed when the 2006 Armed Forces Act came into full effect (only in 2009); however, the Act does not impose a duty to report all civilian casualties to the Royal Military Police (RMP) but only when they constitute a prima facie grave breach of the Geneva Conventions or a war crime under the ICC Statute (a ‘Schedule 2 Offence'), AFA 2006 s 113.
- 103.
Al-Skeini v Secretary of State for Defence [2005] EWCA Civ 1609 [140]; Al-Skeini (n 43 above) para 171.
- 104.
Btselem case (n 50 above) para 12.
- 105.
Al-Skeini (n 43 above) paras 10, 149.
- 106.
Interestingly, in both Al-Skeini and Btselem the determination of the applicable paradigm—of law-enforcement or of armed conflict—did not always coincide with the factual circumstances on the ground. The ECtHR seemed to ‘stretch' its law-enforcement characterization to periods in Iraq when, according to the Court's own description, “crime and violence were endemic” and the situation may amounted to an armed conflict. A similar ‘normative stretch', albeit in the opposite direction, was taken by the Israeli Court. By the time the judgment was delivered (in 2011) the Court took for granted that LOAC remained applicable in the oPt continuously since violence broke out in September 2000. However it is highly dubious that an armed conflict was still taking place in the West Bank as the level of violence there had already decreased dramatically in recent years, see, MAG Testimony in front of the Turkel Commission (11 April 2011) pp. 10–11. http://turkel-committee.gov.il/files/wordocs/Chief_MAG_testimony_minutes.pdf, accessed 22 May 2013, noting that since the end of the year 2010 the main activity of Israel's security forces in the West Bank is law-enforcement-related and that “the factual change has to be projected onto the investigative policies”.
- 107.
- 108.
Richard Goldstone, ‘Reconsidering the Goldstone Report on Israel and War Crimes' Washington Post (2 April 2011).
- 109.
Hina Jilani et al, ‘Goldstone Report: Statement Issued by Members of UN Mission on Gaza War' Guardian (14 April 2011). These concerns referred also to criminal investigations by the Israeli Military Police.
- 110.
UN Human Rights Council 2009, paras 55, 703, 1028; Fourth Geneva Convention, Article 146; Rome Statute, Article 8.
- 111.
UN Human Rights Council 2009, para 360.
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Margalit, A. (2014). The Duty to Investigate Civilian Casualties During Armed Conflict and Its Implementation in Practice. In: Gill, T., Geiß, R., Heinsch, R., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law Volume 15, 2012. Yearbook of International Humanitarian Law, vol 15. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-924-5_7
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