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Investigations into Military Operations: What Impact on Transitional Justice?

  • Laurie R Blank (a1)

Abstract

The recent proliferation of external investigations into military operations raises important questions for the conduct of military operations and the interpretation and implementation of international law. The impact of such investigations and their reports, however, extends beyond how they influence the military and the implementation of the law of armed conflict. As countries and societies embroiled in lengthy conflicts begin to explore the value and effectiveness of undertaking transitional justice efforts during conflict, rather than only after conflict, investigations into military operations and specific incidents can play an important – and perhaps unexpected – role. This article focuses specifically on the inter-relationship between investigations and transitional justice efforts. As investigations into military operations become a common tool in the international and national arsenal, understanding how they interact with and affect broader transitional justice efforts and goals becomes important, both for the conceptualisation of investigations and the development of transitional justice mechanisms. This article addresses the relationship between investigations and the truth-telling aspect of transitional justice mechanisms, as well as the impact of the use of law and legal analysis on the legitimacy of the investigations and on potential transitional justice mechanisms.

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1 This article focuses solely on investigations (including fact-finding missions in some cases) into ongoing armed conflicts or specific incidents (such as the May 2010 Gaza flotilla incident) subsumed within such a conflict. It does not address international or regional investigations into repression, massive human rights abuses or other similar situations – which also certainly have a significant contribution with regard to transitional justice, but lie outside the scope of the instant analysis.

2 Human Rights Council, Report of the International Fact-Finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, 27 September 2010, UN Doc A/HRC/15/21 (2010) (Flotilla Report).

3 Turkel Commission, Report of the Public Commission to Examine the Maritime Incident of 31 May 2010.

4 Turkish National Commission of Inquiry, Report on the Israeli Attack on the Humanitarian Aid Convoy to Gaza on 31 May 2010, February 2011 (Turkish Report).

5 Report of the Secretary General's Panel of Inquiry on the 31 May 2010 Flotilla Incident, September 2011 (Secretary General's Flotilla Report).

6 Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, 23 November 2011, UN Doc A/HRC/S-17/2/Add.1 (2011).

7 Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in the Syrian Arab Republic, 15 September 2011, UN Doc A/HRC/18/53 (2011).

8 Human Rights Council, Report of the International Commission of Inquiry to Investigate All Alleged Violations of International Human Rights Law in Libyan Arab Jamahiriya, 1 June 2011, UN Doc A/HRC/17/44 (2011) (Libya Report).

9 Human Rights Council, Situation of Human Rights in Côte d'Ivoire, 16th Session, UN Doc A/HRC/RES/16/25 (2011).

10 UN Commission of Inquiry on the Violence in Conakry, Report of the International Commission of Inquiry Mandated to Establish the Facts and Circumstances of the Events of 28 September 2009 in Guinea, UN Doc S/2009/693 (2009).

11 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General, 25 January 2005, http://www.un.org/news/dh/sudan/com_inq_darfur.pdf (Darfur Report).

12 Office of the High Commissioner, Report of the Mapping Exercise Documenting the most Serious Violations of Human Rights and International Humanitarian Law Committed within the Territory of the Democratic Republic of the Congo between March 1993 and June 2003, August 2010, http://www.ohchr.org/Documents/Countries/ZR/DRC_MAPPING_REPORT_FINAL_EN.pdf.

13 The law of armed conflict, otherwise known as international humanitarian law or the law of war, applies to situations of armed conflict and governs the conduct of hostilities and the protection of persons during conflict. See International Committee of the Red Cross, ‘War and International Humanitarian Law’, 23 September 2011, http://www.icrc.org/eng/war-and-law. The law of armed conflict is set out primarily in the four Geneva Conventions of 12 August 1949 and their Additional Protocols: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered in to force 21 October 1950) 75 UNTS 85 (GC II); Geneva Convention (III) Relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (entered into force 7 December 1978) 1125 UNTS 3 (AP I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (entered into force 7 December 1978) 1125 UNTS 609 (AP II).

14 See, eg, Laplante, Lisa J and Theidon, Kimberly, ‘Transitional Justice in Times of Conflict: Columbia's Ley de Justicia y Paz’ (2006) 28 Michigan Journal of International Law 49, 50 (discussing how transitional justice normally occurs after a conflict but can, at times, begin during a conflict).

15 US Mission Geneva, ‘Crisis in Libya is Not Over; Commission of Inquiry Must Continue its Mandate’, 19 September 2011, http://geneva.usmission.gov/2011/09/19/libya-2.

16 Roht-Arriaza, Naomi and Mariezcurrena, Javier (eds), Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice (Cambridge University Press 2006) 2.

17 Boraine, Alexander L, ‘Transitional Justice: A Holistic Interpretation’ (2006) 60 Journal of International Affairs 17, 18.

18 Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 August 2004, UN Doc S/2004/616 (2004) para 8.

19 See generally Boraine (n 17); see also Hayner, Priscilla B, Unspeakable Truths: Confronting State Terror and Atrocities (reprint, Routledge 2001) 24: ‘[A] truth commission may have any or all of the following five basic aims: to discover, clarify, and formally acknowledge past abuses; to respond to specific needs of victims; to contribute to justice and accountability; to outline institutional responsibility and recommend reforms; and to promote reconciliation and reduce conflict over the past’ (ibid).

20 Roht-Arriaza and Mariezcurrena (n 16) 8.

21 Schabas, William, ‘The Relationship between Truth Commissions and International Courts: The Case of Sierra Leone’ (2003) 25 Human Rights Quarterly 1035; Robinson, Darryl, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ (2003) 14 European Journal of International Law 481; Stahn, Carsten, ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’ (2001) 95 American Journal of International Law 952; Hamber, Brandon and Wilson, Richard A, ‘Symbolic Closure through Memory, Reparation and Revenge in Post-Conflict Societies’ (2002) 1 Journal of Human Rights 35.

22 For example, Boutruche, Theo, ‘Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice’ (2011) 16 Journal of Conflict & Security Law 105, 106 (discussing how international organisations have increasingly resorted to fact-finding missions).

23 HRC, Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact Finding Mission on the Gaza Conflict, 23 September 2009, UN Doc A/HRC/12/48 (2009) (Goldstone Report).

24 For extensive critiques of the Goldstone Report and its application of international law, see Blank, Laurie R, ‘The Application of IHL in the Goldstone Report: A Critical Commentary’ (2009) 12 Yearbook of International Humanitarian Law 347; Jenks, Chris and Corn, Geoffrey S, ‘Siren Song: The Implications of the Goldstone Report on International Criminal Law’ (2011) 7 Berkeley Journal of International Law 1; Rosen, Richard D, ‘The Protection of Civilians during the Israeli-Hamas Conflict: The Goldstone Report’ in Lovell, David W and Primoratz, Igor (eds), Protecting Civilians during Violent Conflict (Ashgate 2012) 251; Berkowitz, Peter, ‘The Goldstone Report and International Law’ (2010) 162 Policy Review, http://www.hoover.org/publications/policy-review/article/43281/The-Goldstone-Report-and-International-Law-Hoover-Institution; Bell, Abraham, ‘A Critique of the Goldstone Report and its Treatment of International Humanitarian Law’ (2010) 104 American Society of International Law Proceedings 1; Blank, Laurie R, ‘Finding Facts but Missing the Law: The Goldstone Report, Gaza and Lawfare’ (2010) 43 Case Western Reserve Journal of International Law 279.

25 Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, 31 March 2004, I (Sri Lanka Report).

26 ibid.

27 ibid iii–iv.

28 Council Decision 2008/901/CSFP of 2 December 2008 concerning an Independent International Fact-Finding Mission on the Conflict in Georgia, [2008] OJ L 323/66 (EU Decision).

29 Report of the Independent International Fact-Finding Mission on the Conflict in Georgia (Vol 1, 2009) 22–24, 26 (EU Report).

30 Flotilla Report (n 2).

31 Turkel Commission (n 3) Pt One, Report Summary, 2011, para 3, http://turkel-committee.gov.il/files/wordocs/7896summary-eng.PDF.

33 Turkish Report (n 4) 4. See also Tulay Karadeniz, ‘Turkey Slams Israeli Flotilla Report, Issues Own’, Reuters, 24 January 2011.

34 Secretary General's Flotilla Report (n 5) 3.

35 ibid 3–4.

36 Geneva Academy of International Law and Human Rights, ‘The UN Human Rights Council: Commissions of Inquiry Conference Brief’, December 2011, Annex 1, http://www.geneva-academy.ch/docs/news/HR-council-inquiry-conference-brief.pdf (table comparing the mandates and characteristics of commissions of inquiry, fact-finding missions, etc.). See also Libya Report (n 8) 2 (explaining that ‘[t]he commission opted for a cautious approach in the present report by consistently referring to the information obtained as being distinguishable from evidence that could be used in criminal proceedings, whether national or international’).

37 Boraine (n 17) 22. Reconciliation ‘can refer to actions that sometimes help transform a destructive conflict or relationship, the processes by which that transformation occurs, or the outcome of such processes’: Kreisberg, Louis, ‘Comparing Reconciliation Actions Within and Between Countries’ in Bar-Siman-Tov, Yakov (ed), From Conflict Resolution to Reconciliation (Oxford University Press 2003) 82.

38 Legitimacy is ‘the belief that authorities, institutions, and social arrangements are appropriate, proper, and just’: Gibson, James L, ‘The Contributions of Truth to Reconciliation: The Lessons from South Africa’ (2006) 50 Journal of Conflict Resolution 409, 416.

39 US Department of State Dispatch, ‘UN Security Council Adopts Resolution 827 on War Crimes Tribunal’, 7 June 1993, http://www.accessmylibrary.com/article-1G1-13208377/un-security-council-adopts.html. See also Kandic, Nataša, ‘Preserving the ICTY Legacy through Partnership, Oversight, and a Regional Institution’ in Steinberg, Richard H (ed), Assessing the Legacy of the ICTY (Martinus Nijhoff 2011) 79, 83 (arguing that reconciliation might have been an ambitious goal for the ICTY).

40 Boraine (n 17) 20.

41 Teitel, Ruti, ‘The Law and Politics of Contemporary Transitional Justice’ (2005) 38 Cornell International Law Journal 837, 857.

42 EU Report (n 29) 7.

43 L Niroshadharshan, ‘Sri Lanka Minister says Tamil Diaspora Behind UN Report on Alleged War Crimes’, BBC Monitoring, 20 August 2011.

44 President Mahinda Rajapaksa, ‘See the Truth about Sri Lanka against Barrage of Lies by Agents of Terror’, 12 September 2012, http://www.ft.lk/2012/09/12/see-the-truth-about-sri-lanka-against-barrage-of-lies-by-agents-of-terror-president-tells-cpa.

45 Leo Cendrowicz, ‘Both Sides to Blame for Russia-Georgia War’, Time, 30 September 2009, http://www.time.com/time/world/article/0,8599,1927033,00.html.

46 ‘Georgia Started It and Russia Continued It –To Excess: The EU Report on the War Offers Lessons that Go Beyond the Combatants’, The Independent, 1 October 2009.

47 This issue is not specific to investigations into military operations, of course, but appears also in criminal prosecutions and other transitional justice mechanisms.

48 UN Doc A/RES/46/59, 9 December 1991, Annex, para 3.

49 International Law Society, ‘The Belgrade Minimal Rules of Procedure for International Human Rights Fact-Finding Missions’ (1981) 75 American Journal of International Law 163.

50 Raoul Wallenberg Institute, ‘Guidelines on International Human Rights Fact-Finding Visits and Reports (The Lund-London Guidelines)’, 1 June 2009, para 5, http://www.factfindingguidelines.org.

51 ibid para 8.

52 EU Decision (n 28).

53 Sri Lanka Report (n 25) 2.

54 UNHCR, ‘The Grave Violations of Human Rights in the Occupied Palestinian Territory, particularly due to the Recent Israeli Military Attacks against the Occupied Gaza Strip’, UN Doc A/HRC/S-9/L 1 (12 January 2009), para 14.

55 See, eg, Bell (n 24) 3, 6; Irwin Cotler, ‘The Goldstone Mission – Tainted to the Core (I)’, The Jerusalem Post, 16 August 2009; Irwin Cotler, ‘The Goldstone Mission – Tainted to the Core (II)’, The Jerusalem Post, 21 August 2009; Rosen, Richard D, ‘Goldstone Reconsidered’ (2011–12) 21 Journal of Transnational Law and Policy 35; Nick Cumming-Bruce, ‘UN Investigator Presents Report on Gaza War’, The New York Times, 30 September 2009; Robert O Freedman, ‘A Biased War Report; UN's Human Rights Council's Gaza Study was Destined to Unfairly Criticize Israel’, Christian Science Monitor, 20 October 2009; Gerald M Steinberg, ‘Goldstone's Report: Fundamentally Flawed, or a Step Toward Sanctions?’, The Jerusalem Post, 15 September 2009; Robert Goot, ‘A Blind Eye to Hamas Atrocities’, The Australian, 6 November 2009.

56 After raising concerns about the wording of the mandate, Judge Richard Goldstone received verbal confirmation of a revised mandate to address violations by Hamas and other Palestinian armed groups as well: see H Rettig Gur, ‘Goldstone to “Post”: Mandate of My Gaza Probe has Changed. There's No Reason for Israel Not to Cooperate. Israel Disagrees: There's Been No Formal Change. The Goal is Not to Find Truth but to Attack Us’, The Jerusalem Post, 17 July 2009.

57 Boraine (n 17) 22.

58 EU Report (n 29) 2.

59 Sri Lanka Report (n 25) 7–13.

60 Hayner (n 19) 135.

61 Kurt Achin, ‘Sri Lanka Issues Report & Documentary to Dispute War Crimes Claims’, Voice of America, 2 August 2011.

62 Ellen Barry, ‘Georgia Challenges Report that Says it Fired First Shot’, The New York Times, 30 September 2009.

63 EU Report (n 29) 31.

64 Barry (n 62).

65 Goldstone Report (n 23) paras 63–64, 1192–212, 1215–16, 1877, 1894.

66 ibid paras 473–79.

67 Hayner (n 19) 155.

68 Boraine (n 17) 23.

69 Sri Lanka Report (n 25) 2. See also United States Institute of Peace, International Commission of Inquiry for Burundi: Final Report (2002) para 2, http://www.usip.org/sites/default/files/file/resources/collections/commissions/Burundi-Report.pdf (‘To recommend measures of a legal, political and administrative nature, as appropriate, after consultation with the Government of Burundi, and measures with regard to the bringing to justice of persons responsible for those acts, to prevent any repetition of deeds similar to those investigated by the commission and, in general, to eradicate impunity and promote national reconciliation in Burundi’).

70 Sri Lanka Report (n 25) 3.

71 ‘Friday Forum on Darusman Report’, DailyFT, 27 May 2011, http://www.ft.lk/2011/05/27/friday-forum-on-darusman-report.

72 ‘SL Govt Slams UN Report, Uses Rajiv's Last Photo to Show LTTE Carnage’, Hindustan Times, 27 April 2011.

73 In 2013 Israel and Turkey reached a rapprochement, after Israel's apology for the deaths of the Turkish nationals, and agreed to dispatch envoys after having recalled them in 2011: Jodi Rudoren and Mark Landler, ‘With Obama as Broker, Israelis and Turkey End Dispute’ The New York Times, 22 March 2013.

74 Boutruche (n 22) 110.

75 eg Blank (2009) and (2010) (n 24); Jenks and Corn (n 24) 3; Berkowitz (n 24).

76 Richard Goldstone, ‘Reconsidering the Goldstone Report on Israel and War Crimes’, The Washington Post, 1 April 2011. See also Laurie R Blank, ‘Why Goldstone's “Retraction” Is Not Enough’, Jurist, 17 April 2011.

77 Boutruche (n 22) 109.

78 Darfur Report (n 11) 5.

79 Barry (n 62).

80 For example, Anshel Pfeffer, ‘Military Expert on Goldstone Report “Severely Biased”’, The Jewish Chronicle Online, 11 February 2010; Haviv Rettig Gur, ‘Lawyers, Watchdog Allege Goldstone Bias’, The Jerusalem Post, 14 September 2009.

81 Roht-Arriaza and Mariezcurrena (n 16) 325.

82 ibid 9.

I am grateful to the organisers of the Minerva Center for Human Rights at the Hebrew University of Jerusalem for the invitation to present an earlier draft of this article at the November 2011 conference on ‘The Potential Impact of Transitional Justice in Ongoing Conflicts’. I would also like to thank Benjamin Farley (JD Emory 2011) and Tariq Mohideen (JD Emory 2013) for their outstanding research and editing assistance.

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