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<<previous | index | next>> II. Why Investigate?Investigations are essential to justice. Their quality and impartiality affect almost every aspect of disciplinary or judicial proceedings, from identification of the perpetrator to the strength of the evidence and the decision to indict or dismiss. Efficient investigative procedures and resort to an impartial judicial process are essential safeguards against abuse and impunity — and against the pain, terror, and suffering that they cause. At the most basic level, armies investigate allegations of wrongdoing by their soldiers for reasons of self-interest. Members of the armed forces must remain accountable to their superiors in order to maintain operational efficiency, enforce discipline, and maintain respect for principles of international humanitarian law (IHL). In almost all armies, the procedures for military investigations and disciplinary or judicial proceedings were originally based on the need to punish service-related offences such as desertion, insubordination, theft, or mutiny. The more frequent the military operations, the more important it becomes that patterns of unlawful or negligent behavior are detected and stopped. A further reason to investigate is to uphold the integrity of the armed forces, ensuring that ill-disciplined or unlawful acts by soldiers do not discredit the army or the country they defend and represent. The accountability of individuals entrusted with the use of lethal force is an essential part of any functioning democracy. Functioning democracies require that the military be accountable to the civilian authorities. The greater the role the military plays in the daily life of a country, the more important this accountability becomes. Investigations are required to ensure respect for the laws that govern the use of force in armed conflict: international humanitarian law. The advantages of such respect are obvious. It minimizes the suffering caused by armed conflict. It encourages higher morale and a sense of professionalism within the armed forces, and prevents the commission of war crimes. It increases the likelihood of reciprocal behavior by other government or quasi-governmental parties, minimizing the possibility of a downward spiral in which each party attempts to inflict the most pain, cruelty, and suffering. Respect for IHL also helps ease post-conflict transition, by lessening the trauma and bitterness that develop when war crimes or crimes against humanity are committed. Lastly, efficient and impartial investigations can forestall pressures for international tribunals to take up serious violations of IHL on the grounds that the responsible government had failed to do so. Investigations are similarly essential into incidents in which security forces use lethal force in policing and law enforcement circumstances. In situations where military authorities exercise police powers, their conduct is governed by the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the U.N. Code of Conduct for Law Enforcement Officials. These international standards are clear: in policing situations, firearms should be used only when their use is “strictly unavoidable in order to protect life,” and then only in proportion to the danger presented.26 In order to ensure accountability for the possible wrongful use of force, it is important to carry out thorough, prompt, and impartial investigations into all incidents resulting in death or serious injury to determine that lethal force was used properly and, if it was not, to ensure that soldiers and commanders are held accountable for the wrongful deaths or injuries. The investigation should determine the cause and circumstance of the death or injury, who is responsible, and any patterns or practices that may have resulted in the violation of the rights of the victims. Legal ObligationsMilitary forces also conduct investigations and discipline or punish wrongdoers because they have specific obligations under domestic and international law to uphold rights, prevent crimes, punish perpetrators, and ensure that victims have access to an effective remedy. Military forces are official state organs, with clear organizational hierarchies and enforceable chains of command. There are no excuses for non-accountability. Israel has occupied the West Bank, Gaza Strip, East Jerusalem, and Golan Heights since 1967. New administrative structures were introduced in the Oslo process, but Israel continued to exercise substantial military authority throughout the West Bank and Gaza, as well as overall responsibility against external threats.27 Since the redeployment of Israeli troops into Palestinian urban areas in early and mid 2002, Israeli forces have strengthened further their wide-reaching control over Palestinian daily life. International Humanitarian LawThere are two overlapping bodies of international law that apply to Israel’s conduct in the Occupied Palestinian Territories. The first is international humanitarian law (IHL). This includes principles of customary international law, the 1907 Hague Regulations annexed to the Convention (IV) Respecting the Laws and Customs of War on Land, and the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), which Israel has ratified. The Hague Regulations are widely considered part of customary international law, and the Israeli authorities accept their applicability to the occupied territories. Article 43 of the Hague Regulations clearly states that the occupying power “shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety” in the territory it occupies. In 1981, the Israeli High Court of Justice ruled that the Israel Defense Forces are obliged to investigate alleged wrongdoing by soldiers in the occupied territories as part of the authorities’ obligation to maintain law and order.28 The duties of the occupying power, and the rights of the population under its authority, are set out further in the Fourth Geneva Convention. All protected persons shall be treated humanely and without discrimination.29 This includes respecting family, honor, rights, the lives of persons, and private property. An occupying power is specifically prohibited from coercion, carrying out reprisals and imposing collective punishments. Violence to life and person, cruel treatment and torture, taking of hostages, and outrages upon personal dignity (including humiliating and degrading treatment) are absolutely prohibited “at any time and in any place whatsoever.”30 The convention includes a mechanism to enforce the duty of humane treatment. It requires the occupying power to investigate and punish those responsible for serious violations of this duty. Article 146 requires the occupying power to investigate and prosecute “grave breaches” of the convention, defined in Article 147. It also requires the occupying power to provide effective penal sanctions for those who commit grave breaches, or those who order them to be committed. Article 147 defines grave breaches as, among other things, willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, as well as extensive property destruction “not justified by military necessity” and the taking of hostages.31 Other breaches of the Geneva Conventions should also be investigated, prevented, and prosecuted. When considering which legal standards apply to a particular situation, military and political leaders must distinguish between a legitimate military response in situations of armed confrontation, such as exchanges of fire between Israeli forces and Palestinian armed groups, and law enforcement and public security requirements. This is particularly the case in a situation of protracted military occupation.32 Declaring a situation to be a “state of armed conflict” does not negate the obligation of the occupying power to apply law enforcement standards to maintain checkpoints, conduct raids on civilian homes and shops, or control civilian protests, even if some of these turn violent and require dispersal by soldiers or law enforcement officials. Likewise, when a situation reaches a level of intensity that requires regulation by the laws of armed conflict, Israeli forces are obliged to observe customary international principles of military necessity, proportionality, and distinction. In essence, the primary goal of military necessity is to use the least amount of force needed to gain the submission of an enemy at the earliest possible moment.33 Military necessity does not allow an armed force to take measures that violate the laws of war, or that do not have a military purpose. The rule of proportionality places a duty on combatants to choose means of attack that avoid or minimize damage to civilians. Intentional attacks against civilians are absolutely prohibited: the principle of distinction requires that combatants “shall at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives.”34 Attacks that are not aimed at military targets, (or, because of the method of attack used, cannot reliably be aimed at military targets) are indiscriminate and forbidden.35 Combatants must take “all feasible precautions” to minimize incidental loss of civilian life, and to verify that the objectives to be targeted are not civilians or civilian objects.36 The Israeli authorities also have duties under customary international law to prevent war crimes and crimes against humanity. Those who commit or condone war crimes, such as the willful killing of civilians, are individually criminally responsible for their actions. In certain circumstances, IHL also holds commanders criminally liable for war crimes or crimes against humanity committed by their subordinates.37 The responsibility of superiors for crimes committed by their subordinates is commonly known as command responsibility. Although the concept originated in military law, it is increasingly accepted that command responsibility includes the responsibility of civil authorities for abuses committed by persons under their direct authority.38 The doctrine of command responsibility has been upheld in recent decisions by the international criminal tribunals for Rwanda and the former Yugoslavia, and is codified in the Rome Statute of the International Criminal Court.39
International Human Rights LawInternational humanitarian law applies to situations of belligerent occupation as well as situations where hostilities rise to the level of armed conflict. The application of IHL does not pre-empt the application of international human rights law — particularly non-derogable rights such as the right to life. In situations as complex as Israel’s long-term occupation of the West Bank and Gaza Strip, both legal regimes complement and reinforce each other. The two bodies of law share similar normative frameworks, areas of common content, and many instances of overlapping protections. The application of both regimes also ensures that no individual, regardless of nationality or participation in combat, is left without some form of humanitarian protection.41 Israel has signed and ratified numerous human rights treaties, but argues that its resulting obligations do not apply to the Occupied Palestinian Territories. This position has been rejected by the relevant U.N. treaty bodies responsible for monitoring Israel’s compliance with its treaty commitments. Most recently, in August 2003, the U.N. Human Rights Committee, composed of individual experts who examine the compliance of states with the International Covenant on Civil and Political Rights (ICCPR), stated that: in the current circumstances, the provisions of the [ICCPR] apply to the benefit of the population of the Occupied Territories, for all conduct by [Israeli] authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law.42 Israel’s duty to investigate is thus reinforced by its obligations under international human rights law. Israel has ratified at least five treaties that oblige it to investigate violations, bring perpetrators to justice, and to provide an effective remedy or fair and adequate compensation to victims. They include the ICCPR (ratified by Israel in 1992), the U.N. Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT, ratified by Israel in 1991), the International Covenant on the Elimination of all Forms of Racial Discrimination (CERD, ratified by Israel in 1991), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, ratified by Israel in 1991), and the Convention on the Rights of the Child (CRC, ratified by Israel in 1991).43 Regional and international human rights bodies characterize these obligations as a “duty of guarantee”: not only are countries bound to refrain from violating the rights of an individual, but they must also honor five basic obligations, which together form the cornerstone of the international system to protect human rights.44 These are the obligations to: These duties are complementary – one does not substitute for another. Together, they comprise the most effective deterrent for the prevention of human rights violations. A state is accountable for human rights violations not only if it infringes rights through direct acts or negligence, but also if it fails to take appropriate steps to investigate facts, curb criminal behavior, and compensate the victims and their relatives. The obligation to investigate wrongdoing, prosecute offenders, and compensate the victims is strongest in cases of the most serious human rights abuses, such as: torture or cruel, inhuman or degrading treatment; extrajudicial, summary or arbitrary executions; and “disappearances.” The rights to life and freedom from torture and ill-treatment are among the most strongly-protected of all human rights. No state may derogate from its obligation to protect these rights, even in states of emergency. They are widely recognized as having reached the status of customary international law.45 Whatever situation they may be in, individuals are always protected from arbitrary deprivation of life. But when hostilities occur, the decision of what constitutes an arbitrary deprivation of life is interpreted by using IHL standards, which in this situation operates as lex specialis.46In this context, judging whether someone was killed or injured unlawfully will depend on whether the possible perpetrator obeyed the principles of proportionality, military necessity, and distinction discussed above. In many cases, this means not just determining whether the individual followed his or her rules of engagement, but also whether these rules were appropriate in the first place. Declaring a situation to be one of armed conflict is not a blank check, and does not let people fire a weapon at will. Nor can it ever justify torture, ill-treatment or sexual abuse, which are forbidden at all times. What Makes a Good Investigation?If investigations are to promote accountability, they must meet international standards of thoroughness, timeliness, and impartiality. Human rights bodies such as the U.N. Human Rights Committee, the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR) have discussed in detail the practical criteria that distinguish good investigations from bad. In cases of the most serious human rights violations, disciplinary or administrative action is not enough to satisfy the state’s obligation to provide an effective remedy. According to the doctrine of the U.N. Human Rights Committee, “Where extrajudicial executions, enforced disappearance or torture are concerned, it is essential for the remedies to be judicial in nature.”47 The ECHR has developed more than a decade’s worth of jurisprudence on investigations into alleged unlawful killings in Turkey and Northern Ireland. It has laid out standards of investigation into alleged human rights violations: [T]he notion of an ‘effective remedy’ entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, and including effective access for the complainant to the investigatory procedure.48 Remedies must be effective in practice, not just in theory, with a sufficient element of public scrutiny to ensure true accountability.49 In particular, alleged violations of the right to life deserve the most careful scrutiny. Where events lie wholly or largely within exclusive knowledge of the authorities... strong presumptions of fact will arise in respect of injuries and death which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.50 The ECHR has also said that those responsible for or carrying out an investigation into unlawful killing by state agents must be independent from those implicated in events – meaning “not only a lack of hierarchical or institutional connection, but also a practical independence.”51 In addition, the court has held that a prompt response by the authorities in investigating the use of lethal force is essential. Once a matter has come to their attention, the authorities must act on their own initiative, without waiting for a victim’s relatives to lodge a formal complaint.52 Unwarranted delays in taking witness statements and opening investigation proceedings, or unexplained failure to make progress after a reasonable time, were each signs of ineffective investigations, the court found.53 Perhaps the most useful guide to investigation procedures is the U.N. “Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.” These principles establish a thorough and widely respected set of standards for the investigation of alleged killings by security forces and the subsequent legal proceedings.54 Although they are non-binding, the principles represent a detailed guide to good practice in investigating alleged unlawful killings. The principles include requirements for: The texts of the sections of the Principles related to investigations and legal proceedings are reproduced in Appendix C of this report. In a meeting with representatives of the Criminal Investigation Division (CID) of the Israeli Military Police on July 13, 2003, Human Rights Watch asked whether international guidelines were incorporated into the CID’s investigation manuals. Human Rights Watch was told, “We have Israeli law in our manuals... International law is with the JAG [Judge Advocate General].”55 Very few military judicial systems conform to the guidelines above. Many fail to reach basic standards of competence, due process, or judicial independence. Most of the cases recounted in this report involved deaths of civilians in circumstances other than armed hostilities. Some of these cases may constitute extrajudicial executions—i.e., murder. This is why it is crucial that thorough, impartial, and professional investigations take place. These are standards that apply to every country. Precisely because separate military jurisdiction all too often promotes impunity, and because military judicial systems often fail to provide most basic fair trial guarantees, “a consensus is taking shape…with regard to the need to exclude serious human rights violations committed by members of the armed forces or the police from the jurisdiction of military tribunals,” and “military personnel lose their exemption from [ordinary domestic] jurisdiction so that the rights of victims can be taken fully into account.”56 Military judicial systems should investigate and punish only those offences that are strictly military in nature, such as internal issues of discipline. The U.N. Human Rights Committee and other treaty bodies, the Special Rapporteur on Torture, the Working Group on Arbitrary Detention, country mechanisms of the Commission on Human Rights and Inter-American Court of Human Rights have all reached similar conclusions, in countries such as Guatemala, Lesotho, the Philippines, Peru, Morocco, the Russian Federation, Croatia, Chile, Brazil, and Uzbekistan.57 [26] U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, U.N. Doc. A/CONF.144/28/Rev.1 (1990), adopted in 1990 for the Eight U.N. Congress on the Prevention of Crime and Offenders. [27] For a detailed discussion, see the summary of the legal analysis in Human Rights Watch, Israel’s Closure of the West Bank and Gaza Strip, July 1996, Vol. 8, No. 3 (E). [28] See Human Rights Watch [Middle East Watch], The Israeli Army and the Intifada: Policies that Contribute to the Killings, August 1990, p.90, citing High Court of Justice 175/81. [29] All Palestinian residents of the occupied West Bank, East Jerusalem and Gaza Strip are protected persons. Israeli citizens living or traveling in the Occupied Palestinian Territories are not. Article 4 of the convention defines protected persons as “those who, at a given moment, and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or occupying power of which they are not nationals.” Article Four, Convention IV Relative to the Protection of Civilian Persons in Time of War, Geneva August 12, 1949. (Afterwards referred to as the Fourth Geneva Convention). [30] See, inter alia, Articles 3, 27, 31-34, and 147 of the Fourth Geneva Convention. [31] Other grave breaches include unlawful deportation or transfer or confinement of a protected person, and depriving a protected person of fair trial rights. [32] See, for example, Col. Kenneth Watkins, “Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict,” The American Journal of International Law, Vol. 98, No. 1, 2004, pp.1-34, at pp 26-28. [33] Ibid., p.10. For a more detailed discussion of these principles, see Human Rights Watch, Jenin: IDF Military Operations, Vol. 14, No. 3, May 2002, pp. 10-12. [34] Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, Article 48. Israel has not signed Additional Protocol I, but the protocol’s provisions codifying the principle of distinction and prohibiting indiscriminate warfare are widely considered to express norms of customary international law. [35] Ibid., Article 51 (4). [36] Ibid., Article 57 (2) (a) (i) [37] See Maj.-Gen (ret) A.P.V Rogers, “Command Responsibility Under the Law of War,” lecture given at the Lauterpracht Research Center for International Law, Cambridge University, 1999, available at www.law.cam.ac.uk/RCIL/Archive.htm. [38] Art. 128, Rome Statute of the International Criminal Court, “Responsibility of Commanders and Other Superiors.” [39] Israel is not a party to the ICC Statute. [40] See Prosecutor v. Delali, Judgment No. IT-96-21-T, Nov. 16, 1998 (Celebici case), para. 378. [41] For recent discussions see, Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, Cambridge University Press, 2004, pp. 22-25, and Kenneth Watkin (Deputy Judge Advocate General/Operations Canadian Armed Forces) “Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict,” American Journal of International Law, Vol. 98, 1, 2004, pp. 1-34. [42] United Nations Committee on Human Rights, Concluding Observations of the Human Rights Committee: Israel. 21/08/2003, CCPR/CO/78/ISR. (Concluding Observations/Comments). Human Rights Watch’s discusses the applicability of Israel’s treaty obligations to the Occupied Palestinian Territories in Human Rights Watch, Israel’s Record of Occupation: Violations of Civil and Political Rights, August 1998, Vol. 10, No. 2 (E), available at www.hrw.org/reports98/israel/. [43] Relevant provisions include Article 2 of the ICCPR, Articles 12, 13, and 16 of the CAT, Article 6 of the CERD, Article 2 (c) of CEDAW, and Articles 4, 6, and 37 of the CRC. [44] Federico Andreu-Guzmán, Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations, International Commission of Jurists/Colombian Commission of Jurists pp.21-26, available at http://www.icj.org/IMG/pdf/Trib._mil._ENG_-_part_I.pdf. [45] For example, the Operational Law Handbook of the United States Army recognizes eleven rights as customary international law, including prohibitions against genocide, slavery, murder or disappearances, torture or other cruel inhuman or degrading treatment; all violence to life or limb, taking of hostages, punishment without fair trial, prolonged arbitrary detention, failure to care for or collect the wounded and sick, systematic racial discrimination, and a consistent pattern of gross violations of internationally recognized human rights. Maj. J. Berger, Maj Derek Grims, Maj Eric Jensen (Eds) Operational Law Handbook, International and Operational Law Department, Judge Advocate General’s Legal Center and School, Charlottesville Virginia, 2004, pp. 43-44. [46] Dinstein, The Conduct of Hostilities, pp. 22-25, and Watkin, “Controlling the Use of Force,” p. 10. [47] Communication No 778/1997, Case of Coronel et al (Colombia), United Nations Documents CCPR/C/70/D/778/1997, October 13, 2000, para. 6.4. [48] European Court of Human Rights, Judgment Aksoy v. Turkey, December 18, 1996, para. 98. Application no. 00021987/93. [49] European Court of Human Rights, Judgment Hugh Jordan v. The United Kingdom, May 4, 2001, Application no. 24746/94, para. 109. [50] Ibid., para. 103. [51] European Court of Human Rights, Hugh Jordan v. The United Kingdom, para. 107. [52] European Court of Human Rights, Judgment McKerr v. The United Kingdom, May 4, 2001, Application no. 28883/95, Para 111. [53] Lapses in cases range from one to five years, and delays in taking witness statements from four months to several years. For a summary of cases see C. Buckley, Turkey and the European Convention on Human Rights, A report on the Litigation Programme of the Kurdish Human Rights Project, London, July 2000, p. 143, n. 781. [54] Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, E.S.C. res. 1989/65, annex, 1989 U.N. ESCOR Supp. (No. 1) at 52, U.N. Doc. E/1989/89 (1989). [55] Human Rights Watch Interview, July 13, 2003. [56] U.N. Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, “Administration of Justice: Issue of administration of justice through military tribunals,” Report submitted by Mr. Emmanuel Decaux pursuant to Sub-Commission decision 2002/103, E/CN.4/Sub.2/2003/4, June 27, 2003, paras. 22 and 40. The Sub-Commission report also cites a 1999 opinion of the Working Group on Arbitrary Detention whereby military justice “should be incompetent to try military personnel if the victims include civilians” (para. 21). See also, Federico Andreu-Guzmán’s introduction to International Commission of Jurists and Colombian Commission of Jurists, Military jurisdiction and international law: Military courts and gross human rights violations (vol.1) and Part I, Section I of the same volume, available at http://www.icj.org/IMG/pdf/Trib._mil._ENG_-_part_I.pdf. [57] The Human Rights Committee has consistently criticized the scope, due process guarantees and impartiality of military judicial proceedings. It has also repeatedly taken the view that the jurisdiction of military courts be limited solely to military offences committed by military personnel, as in its 1992 observations on Colombia and 1994 observations on El Salvador. The Working Group on Arbitrary Detention recommended to the U.N. Human Rights Commission in 1999 that military judicial systems should be incompetent to try military personnel if the victims were civilians. It has repeated this recommendation in visits to Indonesia, Nepal, and Peru. The Inter-American Commission on Human Rights has examined military justice issues for more than three decades. It has consistently recommended in its country reports, annual reports and decisions in individual cases that the jurisdiction of military tribunals be confined to strictly military offences. In Columbia and Peru, the Commission has particularly criticized the use of military personnel as criminal investigators. See, Andreu-Guzmán, Military Jurisdiction and International Law, part I, section II, Chapters 2 and 4. For the European Court of Human Rights, see the discussion earlier in this section, and ibid., Chapter 6.
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