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Investigating Civilian Casualties in Time of Armed Conflict and Belligerent Occupation: Manoeuvring between Legal Regimes and Paradigms for the Use of Force

Investigating Civilian Casualties in Time of Armed Conflict and Belligerent Occupation: Manoeuvring between Legal Regimes and Paradigms for the Use of Force

Author: Alon Margalit
Publisher: Brill Nijhoff
ISBN: 9789004368200
Published In: July 2018
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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In Investigating Civilian Casualties in Time of Armed Conflict and Belligerent Occupation Alon Margalit discusses the appropriate State response to civilian casualties caused by its armed forces. Various legal and practical challenges, arising when investigating the fatal consequences of the use of force, are examined through the practice of the US, the UK, Canada and Israel during military operations in Afghanistan, Iraq, Somalia and the occupied Palestinian territory.

Alon Margalit considers this topical and sensitive issue within a broader context, namely the public scrutiny of State behaviour and influence of human rights law during armed conflict. The debate over the scope of the duty to investigate reflects competing approaches looking to (re)shape the balance between military necessity and humanitarian considerations.

Preface

List of Abbreviations

Part 1: Introduction

The Investigative Response to Civilian Casualties: More Questions Than Answers

1.1 Introduction

1.2 Taking a Closer Look

1.3 Book Overview

1.3.1 The Use of Force, Civilian Casualties and Investigations

1.3.2 Manoeuvring between Operational Paradigms and Legal Regimes

Part 2: Setting the Normative Framework

'The Trigger Question': When Do Civilian Casualties Require an Investigation?

2.1 The Investigation Trigger under International Human Rights Law (ihrl)

2.2 The Investigation Trigger under the Law of Armed Conflict (loac)

2.2.1 War Crimes

2.2.2 A Failure of Precautions

2.2.3 A Duty to Investigate All Cases of Civilian Casualties?

2.3 Conclusion

'The Standards Question': How to Investigate Civilian Casualties?

3.1 Investigation Standards under ihrl

3.1.1 General

3.1.2 An Effective Investigation

3.1.3 Independence and Impartiality

3.1.4 Victim Involvement and Transparency

3.1.5 A Formal and Professional Investigation and the Margin of Appreciation

3.2 Investigation Standards under loac

3.2.1 General

3.2.2 War Crimes

3.2.3 A Failure of Precautions

3.3 Conclusion

Translating Investigation Obligations to loac Situations

4.1 The Interaction between ihrl and loac

4.2 Classification Issues

4.3 International Armed Conflict (iac)

4.4 Non-international Armed Conflict (niac)

4.5 A Conduct-of-Hostilities Paradigm: Temporal and Geographical Dimensions

4.6 Occupation

4.6.1 General

4.6.2 Troubled Occupation

4.6.3 The Use of Force

4.7 Conclusion

Part 3: Investigating Civilian Casualties in Practice

Challenges in Classifying and Identifying the Applicable Normative Framework(s)

5.1 'Stretching' a Hostilities Paradigm

5.1.1 us

5.1.2 uk

5.1.3 Israel

5.2 'Stretching' a Law-Enforcement Paradigm

5.2.1 Iraq

5.2.2 Afghanistan

5.2.3 oPt

5.3 Uncertainty in Relation to the Intensity Test

5.4 iac/niac Classification

5.5 Further Complications: Additional Legal Sources and Policy Considerations

5.5.1 uk, Canada

5.5.2 us

5.6 The Applicability of ihrl

5.6.1 General

5.6.2 Effective Control and Provision of Governmental Services

5.6.3 Consent of the Local Government

5.6.4 Prolonged Occupation

5.7 Al-Skeini and B'tselem Cases: Two Sides of a Legal Coin

5.7.1 Al-Skeini

5.7.2 B'tselem

5.8 Conclusion

Investigation Models and Constraints in Domestic Military Justice Systems

6.1 Introduction

6.2 Models Identified in State Practice

6.2.1 The Commander Model

6.2.2 The Professional Model

6.2.3 A Mixed Model: Mandatory Reporting to a Professional Body in Serious Cases

6.3 Conclusion

Military In-House Investigations and Some Mitigating Arrangements

7.1 Command Investigations

7.1.1 A Controversial Mechanism

7.1.2 Judging Command Investigations in Light of Their Function

7.2 Considering Mitigating Arrangements

7.2.1 Enhancing the Involvement of Professional Bodies

7.2.2 Setting Time Frames and Considering Initial Findings Carefully

7.2.3 Openness

7.3 Problems with Professional Bodies

7.3.1 Failure to Open a Formal and Professional Investigation

7.3.2 Problems with the Conduct of Criminal Investigations

7.4 Conclusion

Civilian Oversight of Military Investigations

8.1 An Ad Hoc Civilian Investigatory Body

8.2 Administrative Review

8.3 Judicial Review

8.3.1 General

8.3.2 Jurisdiction and Admissibility

8.3.3 The Scope of Review

8.4 A Permanent Civilian Expert Body

8.4.1 The mpcc (Canada)

8.4.2 hmic (uk)

8.4.3 Israel

8.5 Conclusion

Part 4: Looking Forward

A Proposal for a Permanent Expert Commission

9.1 A Question of Mandate

9.1.1 General

9.1.2 External-Civilian Investigations?

9.1.3 ihrl and Lessons Learned from the Civilian Oversight of Police Investigations

9.2 The Proposed Mandate

10.

The Duty to Investigate and Shaping the Normative Discourse

10.1 The Difficulties of Investigating

10.2 Enhanced Scrutiny and Heavier Burden

10.3 State Pushback

10.4 A Permanent Expert Commission: Incentives for States

10.5 Conclusion

Table of Treaties and Other International Instruments

Table of International Cases 26

Table of Domestic Instruments

Table of Domestic Cases

Bibliography

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