By Michael Schmitt –
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This article discusses how states attempt to fulfill their obligations under international humanitarian law (IHL) and international human rights law to respond to alleged violations of international law by their militaries during armed conflict. Part I lays out requirements under IHL to investigate and prosecute war crimes, covering the obligations of states under both treaties and customary international law. Part II examines how different courts have addressed requirements to investigate violations of human rights instruments within the context of armed conflicts and the lex specialis of IHL, finding that human rights investigations must be independent, effective, prompt, and impartial. In Part III, the author notes the practice of Canada, Australia, the United Kingdom, and the United States in order to assess how these states have fleshed out the requirements and implemented the provisions of international law noted in the previous Parts. Drawing upon these case studies, the article generates twenty-three conclusions indicating the common characteristics of investigations into alleged violations of international law on the battlefield. Finally, in Part IV the article concludes that standards for investigations must consider IHL as lex specialis and the special circumstances of armed conflict in conducting investigations, and should remain practical given the context for situations in which investigations will take place.
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Michael N. Schmitt
Professor of International Law, University of Reading; Francis Lieber Distinguished Scholar, United States Military Academy at West Point; Charles H. Stockton Distinguished Scholar-in-Residence, United States Naval War College.