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2016 | Amy M.L. Tan - The duty to investigate alleged violations of international humanitarian law: outdated deference to an international accountability problem

On October 3 2015, the U.S. directed an airstrike on an MSF trauma center in Kunduz, Afghanistan, causing the death of at least 42 people. The U.S. response to this tragic incident raised several critiques. The military investigation into the Kunduz incident failed to meet the standards of independence and impartiality and left a sense that meaningful accountability was lacking. In fact, while some of the victims received condolence payments, many did not even know an investigation had been carried out. Besides, the U.S. Central Command disclosed little about the facts of the Kunduz airstrike and the administrative actions taken against individuals involved in the event. 

This article examines the obligation to investigate alleged violations of the laws of armed conflict, which is an essential part of a State’s duty to respect, protect and fulfill international humanitarian law (IHL) and international human rights law (IHRL). It contends that the US response to the Kunduz airstrike illustrates the need for investigations that fulfil victims’ conception of accountability. 

The Geneva Conventions, the Additional Protocol I and customary international law create an obligation to investigate and prosecute all violations of IHL, not just violations considered to be grave breaches or war crimes. Hence, IHL sets out procedural and substantive obligations for instances of civilian casualties that result from action that does not trigger individual criminal responsibility, such as the in the Kunduz strike. The author, however, submits that IHL treaties allow States great discretion when it comes to the triggers for and criteria of these investigations and the standards governing them are not well developed. She concludes that without clear guarantees of independence, transparency, or victims’ engagement (i) the propriety and timeliness of these investigations is difficult to determine and (ii) access to the truth is not guaranteed. These problems are exacerbated by the lack of a universal accountability mechanism and continued State reluctance to support meaningful compliance initiatives. In this respect, the article calls for integrating international human right law principles into all aspects of IHL investigations to better support victims and promote respect for IHL’s protective mandate.