The Obligation to Investigate in Peace Operations: The Role of Cooperation in Ensuring Effectiveness

The Military Law and the Law of War Review, Volume 56, Issue 2, 2018

31 Pages Posted: 28 Jan 2019

See all articles by Vito Todeschini

Vito Todeschini

International Commission of Jurists

Date Written: 2018

Abstract

Reports concerning crimes and abuses committed by peace operations personnel deployed in situations of humanitarian crisis often hit the news. In these instances, troop-contributing States (TCSs) retain both a prerogative and a duty to undertake criminal investigations as prescribed by international law. To investigate effectively, however, a TCS will need to interact with the other actors involved in a peace operation: the host State, the leading international organization, and other TCSs. When a local is killed, for example, the investigating TCS must seek the authorization of the host State in order to perform an autopsy on the victim’s body, so not as to infringe on the latter’s sovereignty. In this sense, partial or total non-cooperation on the part of the host State may hamper a TCS’s ability to conduct an effective investigation.

The present article examines the obligation to investigate in the context of peace operations, particularly as deriving from human rights law and international humanitarian law (IHL). It further explores how the specific agreements applicable in UN and NATO operations address investigative cooperation, aiming to map relevant normative gaps. The article finally proposes an interpretation de lege ferenda of existing obligations under human rights law and IHL, according to which the duty to investigate would require TCSs (a) to regulate investigative cooperation with the other actors involved in a peace operation and (b) to ensure that such actors conduct investigations in line with the required standards of effectiveness.

Keywords: Peace Operations, Obligation to Investigate, Duty to Investigate, Cooperation, International Humanitarian Law, IHL, Human Rights Law, HRL, UN, NATO, Troop-Contributing States, SOFA

Suggested Citation

Todeschini, Vito, The Obligation to Investigate in Peace Operations: The Role of Cooperation in Ensuring Effectiveness (2018). The Military Law and the Law of War Review, Volume 56, Issue 2, 2018, Available at SSRN: https://ssrn.com/abstract=3316776

Vito Todeschini (Contact Author)

International Commission of Jurists ( email )

PO Box 91
Rue des Bains 33
Geneva 8, 1211
Switzerland

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