Domestic Investigation of Suspected Law of Armed Conflict Violations: United States Procedures - Policies and Practices
23 Pages Posted: 13 Dec 2011
Date Written: October 15, 2011
The Israeli interception of a flotilla of civilian ships bound for Gaza in May of 2010 fueled ongoing questions about the content, efficacy, and adequacy of the law of armed conflict (LOAC). Debate focused quickly on fundamental substantive legal issues such as proportionality, humanitarian assistance, treatment during detention, and even the overall legal character of the hostile relationship between Israel and Hamas. Quickly, however, debate spread beyond mere doctrinal matters of LOAC interpretation and application. Critics have begun to devote significant attention to the procedural aspects of States' investigative responses to LOAC violations. Crucial questions include the degree of independence and neutrality required and whether domestic, internal military investigations can ever suffice to address what are alleged breaches of international legal obligations. Still deeper methodological and interpretive inquiries surely loom as well. For instance, to what extent does international law regulate the processes of investigations of potential LOAC violations? Or better yet, to what extent to do States regard investigative procedure as an issue committed to LOAC or international law more generally?
This Comment briefly outlines the investigative procedures available under current United States domestic law for suspected LOAC violations including formal and informal procedures available under both civil and military justice systems. The Comment gives special attention to evidence that U.S. investigative procedures, policies, and protocols are influenced by or are functions of perceived international legal obligations. The Comment concludes by offering a few brief observations concerning the U.S. system and the likely direction of future international law-based scrutiny of domestic LOAC investigations.
Keywords: Law of War, International Humanitarian Law, Law of Armed Conflict, Investigations, National Security Law, International Law, jus in bello, war crimes, military law, International Criminal Law, military justice
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