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2011 | Amichai Cohen, Yuval Shany: Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts

In: Yearbook of International Humanitarian Law, 14, 2011, pp 37-84

The aim of this article is to critically evaluate the contemporary international law obligation to investigate military conduct in times of conflict and to identify relevant normative trends. The authors argue that the traditional focus on the Geneva grave breaches regime in the context of military investigations is misplaced. The duty to investigate is far broader encompassing alleged violation of many other norms of International Humanitarian law (IHL) and International Human Rights law (IHRL) and engaging the responsibility of both military and civilian officials. It is also more diverse in its objective and richer in its methods than sometimes has been assumed. Thus, for example, some allegations would justify a criminal investigative response whereas others may merit alternative reactions, such as disciplinary proceedings, civil proceedings or some other fact-finding process. What is more, some of these responses are primarily geared towards ensuring personal accountability for past deeds, while others are more concerned with improving future practices. 

Nevertheless, the article suggests that all reactions to alleged violations, as well as the mechanism for selecting between them, should be governed by IHRL principles (such as independence, impartiality, promptness and transparency), although their manner of application to battlefield investigations would necessitate adjustment.