< < >

2011 | Amichai Cohen and Yuval Shavny; Duty to Investigate alleged violations of humanitarian law.

This Handbook discusses in detail the nature of the international law obligation to investigate alleged violations of humanitarian law. It does not address the matter of reparations as a distinct issue. However the obligation to investigate such violations derives most recently from the UN’s 2005 Basic Principles on the Right to a Remedy. Its section II, defines the scope of the primary obligation to respect, ensure respect for and implement international  human rights law and international humanitarian law.

Article 3(b) stipulates that the obligation includes the duty to investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law. Failures to investigate to the requisite standard were the subject of many claims before the Human Rights Committee and the European Court of Human Rights following the war in Bosnia Herzegovina.

Under Article 22(b), (c) and (h) of the Basic Principles, investigation of alleged violations would constitute a form of the reparation known as Satisfaction: Satisfaction includes verification of the facts and full and public disclosure of the truth; the search for the whereabouts of the disappeared  …and for the bodies of those killed…, and the inclusion of an accurate account of the violations that occurred, in educational material at all levels.

This Handbook contains a discussion of the difficulty of meeting the required standard of impartiality in the Israeli context, where the chief investigator of alleged violations is the military’s own attorney general.