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240 See CARR CENTER FOR HUMAN RIGHTS POLICY, HARVARD UNIVERSITY, REPORT ON THE UNDERSTANDING COLLATERAL DAMAGE WORKSHOP, JUNE 4-5, 2002, at 5-6 (2002), available at http://www.hks.harvard.edu/cchrp/Web%20Working%20Papers/WebJuneReport.pdf.
Civilian Casualty JTF 35 incidents of civilian casualties in which war crimes a... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Though the Commission exists, it barely functions, as it “has only a limited mandate and no real powers.”241 Even if the United States were willing to entrust the responsibility of investigating alleged war crimes to an international entity, it should not award this responsibility to the Commission for at least two rea... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Additionally, Commission-led investigations may harm U.S. and Afghan efforts to procure valuable intelligence.
After all, even claims investigations often yield productive intelligence, 242 and the United States would not want to tie its hands in retrieving this evidence for fear of interfering in the Commission’s neu... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
B.
The Task Force on Civilian Protection: Form and Functions Since neither accepting the jurisdiction of the Fact Finding Commission nor remaining with the status quo appears to be advantageous, the U.S. Government should adopt a more intrepid solution.
The President should act decisively and create a Task Force on C... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Using an executive order would allow the President to gain immediate political capital, as he could signal at the highest level his commitment to better handle civilian casualties in war.
An outline of the form and functions of the Task Force follows, including an exploration of international standards that may bear o... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The Department of Defense Criminal Investigation Task Force (CITF), for example, spearheads the government’s attempts to marshal evidence against those “suspected of illegal activities in conjunction with their affiliation to al Qaida and other enemies of the state.”243 Created by executive order,244 CITF includes civi... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
& SEC.
L. 447, 464 (2008).
Perhaps the most fitting description of the Commission comes from Christopher Greenwood, who called it “an almost toothless tiger.” See Christopher Greenwood, The Twilight of the Law of Belligerent Reprisals, 20 NETH.
Y.B.
INT’L L. 35, 37 (1989).
242 See OPERATIONAL LAW HANDBOOK, supra n... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
243 See Brigadier General Eric Patterson, CITF: Criminal Investigation Task Force— OSI, TIG BRIEF: THE INSPECTOR GENERAL (Nov.-Dec. 2003), available at http://findarticles.com/p/articles/mi_m0PAJ/is_6_55/ai_112482127/print.
244 See id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
244 See id.
36 Air Force Law Review Volume 65 enforcement agencies and military members from every branch of the armed services.245 CITF members gather evidence and intelligence in locations spanning the globe.246 The task force organizational model on which CITF stands should receive some of the credit for its succ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The task force model would prove similarly beneficial in the context of civilian casualty investigations.
In seeking to forge cooperation among the United Nations, the Government of Afghanistan, the American military, and a collection of NGOs, the United States will need a platform that allows easy and efficient inter... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The U.S. military would serve as its Chair, guiding its meetings and exercising administrative control.
Ideally, the host government and the United Nations would also participate.
These partner members would participate in the investigations to the extent they desire.
Humanitarian NGOs would also be encouraged to jo... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Built on the strong foundation of the task force model, the Task Force would fulfill numerous functions.
First among these would be to conduct thorough investigations of alleged civilian casualty incidents by engaging various military commands, NGOs, inter-governmental organizations and the host government.
After a w... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
As demonstrated from the aftermath of the Azizabad attack, the production of various and conflicting investigations and results can disserve the local people.
Though the Task Force would strive to reach unanimous conclusions in its investigations, this will not always be possible. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
When members disagree with the conclusion reached by the Task Force in particular investigations, they should be allowed to dissent.247 A scenario where one or more partner members dissent from the results is still more palatable than the chaotic circumstance in which separate entities conduct fully independent inquiri... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
246 See id.
247 Given that the United States would run the Task Force, it probably could not be in the position of writing a dissenting opinion itself.
Instead, in case of strong disagreement, the U.S. representatives would revisit the evidence and facts to determine if their conclusion was mistaken.
If they stood b... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Civilian Casualty JTF 37 knowing which result is correct, but can turn into harassment.
In the Azizabad case, for instance, some of the same villagers were interviewed multiple times by multiple organizations—a practice that amounted to an unfortunate intrusion on their privacy in a time of stark suffering.
In order ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Reaching the right result, however, will prove of little value without proper communication of it. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
During and after an investigation, specially trained public affairs officers in the Task Force would respond compassionately and quickly to alleged civilian casualty incidents.248 Military attorneys schooled in the lessons of lawfare would vet all statements that concerned the law, especially those statements that resp... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Naturally, many of the public affairs officials serving as the face of the Task Force should be Afghans, who will more easily relate to their fellow citizens than foreigners.
Furthermore, all public affairs personnel would be trained to apologize first and defend later when faced with possible civilian deaths.
Secret... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
After all, and as noted by General McChrystal, “Civilian casualties .
.
. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
and damage to public and private property (collateral damage), no matter how they are caused, undermine support” for the war effort “in the eyes of the Afghan population.”250 The United States and its coalition partners should seize every opportunity to act more like caring partners than “a military that makes indiscri... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The Task Force should explore every option necessary to win over the local people, to include more effective ways of distributing aid and making compensation payments.
The Task Force should take into 248 Colonel Kelly Wheaton penned an insightful article to which I am indebted on this point.
He argues that senior mil... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See Wheaton, supra note 211, at 7.
249 See Thom Shanker, Gates Apologizes for Afghan Deaths, N.Y. TIMES, Sept. 17, 2008, available at http://www.iht.com/articles/2008/09/17/asia/afghan.php.
250 MCCHRYSTAL, supra note 22, at E-1 (emphasis added).
251 See RAJA G. HUSSAIN, BADAL: A CULTURE OF REVENGE 38 (Mar.
2008) (u... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
38 Air Force Law Review Volume 65 account thoughtful proposals to improve the system,252 and should survey claims officers to garner their ideas for possible improvements.
The Task Force should also seek to prevent civilian casualty incidents from occurring by systematically measuring the efficacy of the military’s ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
NGO members may be particularly interested in assisting with this role, as some of them have lobbied the military to pay greater attention to this overlooked area.253 The Task Force and its NGO partners could compile sophisticated studies detailing how civilian casualties are caused.
Implementing the lessons learned f... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Moreover, producing open studies on the issue of civilian casualties would empower the United States and its allies to more forcefully claim that they exert tremendous energy in preventing civilian deaths. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The current Civilian Casualty Tracking Cells established by General McChrystal for NATO and American forces in Afghanistan, which appear to operate mainly in secret, do not live up to this ideal.254 Distilling lessons learned from civilian casualty incidents would also shatter any myth that the military has not learned... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Of course, those in the Azizabad area are unlikely to believe that the military learned its lesson as their province suffered two major civilian casualty incidents within a single year.255 The Task Force may still be able to convince others, however, that coalition forces truly seek to safeguard every innocent life.
I... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
On that day, a U.S. airstrike in Iraq inadvertently “killed Malik al-Kharbit, a tribal leader who, since the mid-1990s, had actually worked with the CIA and Jordanian intelligence trying to overthrow Saddam Hussein.”256 Kharbit’s influential clan instantly turned against the coalition, which inspired a well-connected t... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
252 Jonathan Tracy presents one such thoughtful proposal.
See TRACY, supra note 89.
253 Two organizations that may be extremely interested in this work are CIVIC and Human Rights Watch.
A recent article quoted officials from each of these organizations, Sarah Holewinski and Marc Garlasco, respectively, as they expre... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See Benjamin, supra note 85.
254 See, e.g., UNAMA REPORT, supra note 18, at 2 (discussing the tracking cells).
255 See TROOPS IN CONTACT, supra note 11, at 3, 17.
256 See Rod Nordland, Tom Masland & Christopher Dickey, Iraq: Unmasking the Insurgents, NEWSWEEK, Feb. 7, 2005, available at http://www.msnbc.msn.com/id/ ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
257 See id.
258 See id.
Civilian Casualty JTF 39 In the ensuing battle for Fallujah, the American forces limited civilian casualties by evacuating noncombatants before entering the city.259 The Task Force proposed here would work to ensure that stories like this remain the rule and not the exception.
C. Incorporatin... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
As law has “become a mark of legitimacy—and legitimacy has become the currency of power,” complying with international legal standards, even non-binding ones, is increasingly important.260 International law provides a duty to investigate that should guide the efforts of the Task Force.
Specifically, two principles fro... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Before discussing these two principles, this article will first explain the ways in which the jurisprudence on the duty to investigate might apply to the United States.
1.
Avenues Through Which the Duty to Investigate Might Apply The duty to investigate appears to flow from three different reservoirs of law. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
First, the duty stems from the obligation of states party to international human rights treaties to guarantee the rights contained in those treaties.261 The International Covenant on Civil and Political Rights (ICCPR), to which the United States is party, obligates parties to “respect and to ensure to all individuals w... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
260 See KENNEDY, supra note 50, at 45.
261 See Louise Doswald-Beck, The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?, 88 INT’L REV.
RED CROSS 881, 887 (2006).
Article 2(1) of the ICCPR articulates the duty to “respect and ensure respect to all individuals .
.
.
.” ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
23, 1976) [hereinafter ICCPR].
262 See ICCPR, supra note 261, art.
2(1).
263 See Convention for the Protection of Human Rights and Fundamental Freedoms art.
1, Nov. 4, 1950, 213 U.N.T.S.
221.
40 Air Force Law Review Volume 65 treaty.264 The duty to investigate suspected violations of rights is one such positive... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
265 Thus, alleged violations of the right to life, for instance, trigger a state’s responsibility to launch an effective investigation into the matter and to prosecute anyone found responsible.266 A rich jurisprudence defines the contours of the duty to investigate. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Perhaps nowhere else is this doctrine more developed than in the precedent of the European Court of Human Rights, which has articulated numerous requirements for a given investigation to pass scrutiny.267 The Inter-American Court of Human Rights also enforces a duty to investigate268 and others in the international sys... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
This apparent limitation, however, may not be very limiting. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
As the U.S. military admits in its Operational Law Handbook, “Increasingly, States consider their human rights treaty obligations binding in all cases of State action.”270 Indeed, even skeptical observers now agree that “international human rights law continues to apply in all armed conflicts alongside international hu... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Res.
147, A/RES/60/147 (Mar.
21, 2006), available at http://www2.ohchr.org/ english/law/remedy.htm [hereinafter G.A.Res.
147].
The concept that states must take positive steps to secure international human rights is sometimes referred to as the “duty to guarantee.” See FEDERICO ANDREU-GUZMÁN, 1 MILITARY JURISDICTIO... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
266 See id.
267 For an overview of the specifications given to the duty to investigate by the European Court of Human Rights, see id.
at 887-88.
See generally R. (on the application of Al- Skeini) v. Secretary of State for Defence, [2005] EWCA Civ 1609, [2007] Q.B.
140 ¶ 318-25 (Court of Appeal (Civil Division)).
... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
271 See Doswald-Beck, supra note 261, at 881.
272 See U.N. Comm’n on Human Rights, Report of the Special Rapporteur to the Commission on Human Rights on Civil and Political Rights, Including the Questions of Disappearances and Summary Executions, ¶ 36, E/CN.4/2006/53 (Mar.
8, 2006) [hereinafter Report of the Special ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The second article of the ICCPR provides that each state party to the “Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant .
.
. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
.”273 Substantial authority supports a disjunctive reading of this provision, such that the ICCPR applies both within and without a state’s territory so long as an individual is “subject to its jurisdiction.”274 Most notably, the International Court of Justice concluded that the ICCPR’s object and purpose, the drafting... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The second possible avenue through which the duty to investigate might apply is found in LOAC. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
As in the case of international human rights law, LOAC does not provide a general duty mandating the investigation of possible breaches.277 Article 146 of the Fourth Geneva Convention does, however, obligate parties to implement legislation allowing for the prosecution of any person who commits grave breaches of the Co... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In order to discharge the obligation to prosecute those who commit grave breaches, a state must ipso facto conduct credible investigations that could, if warranted, lead to prosecutions.
Anything less would appear to violate Article 273 ICCPR, supra note 261, art.
2(1).
274 For an overview of the argument for a disj... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
J. INT’L L. 78 (1995).
See also Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Delegations, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 72, 74 (Louis Henkin ed., 1981).
275 Legal Consequences of the Construction of a Wall in the Occupied Palestinian... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
136 (July 9).
276 See, e.g., Press Release, U.S. Dep’t of State, Statement by U.S. Mission to the United Nations on Behalf of the U.S. Delegation to the U.N. Human Rights Committee (July 28, 2006), available at http://geneva.usmission.gov/Press2006/ 0728ICCPR.html.
President Obama’s administration does not appear to ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
277 See Doswald-Beck, supra note 261, at 881.
278 Geneva Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T.
3516, 75 U.N.T.S.
287.
279 See id.
art.
147. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
3516, 75 U.N.T.S.
287.
279 See id.
art.
147.
42 Air Force Law Review Volume 65 146’s obligation to provide “effective penal sanctions” against offenders.280 Suspected violations of the laws of targeting, however, would not trigger the duty to investigate as a means of adhering to Article 146 because only grave b... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Despite the lack of textual support for a broader duty to investigate in LOAC, some commentators advance a more general duty akin to that developed in international human rights law.281 Presumably, this argument rests on the theory that any violation of LOAC—and not only those labeled “grave breaches” in Article 147 of... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The growing “convergence” of LOAC and international human rights law also lends support to this argument.282 Many of the provisions in the Geneva Conventions of 1949, for instance, “reflect the unmistakable influence of the Universal Declaration of Human Rights.”283 As the influence of human rights law expands, LOAC is... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Even if the United States did recognize a general LOAC-based duty to investigate, this recognition would be meaningless unless it also recognized and implemented the standards accompanying the duty to investigate, discussed below.
The third avenue of application is customary international humanitarian law. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Fascinatingly, the ICRC’s recent study on customary international humanitarian law found an overarching duty to investigate “war crimes allegedly committed by [a state’s] nationals, or armed forces, or on [its] territory and, if appropriate, [to] prosecute the suspects.”285 A corollary duty obligates states to “investi... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
art.
147.
281 See Doswald-Beck, supra note 264, at 889.
282 See P.G.
Danchin, Transitional Justice in Afghanistan, 4 Y.B.
INT’L L. 3, 18 (2001).
283 See id.
at 19.
284 See id.
As Danchin relates, even “the classic distinctions in thresholds of applicability between international and ‘non-international’ armed c... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
(quoting Theodor Meron & Allan Rosas, A Declaration of Minimum Humanitarian Standards, 85 AM.
J. INT’L L. 375, 375 (1991)).
285 See Jean-Marie Henckaerts, Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, 87 INT’L REV.
RED CROSS ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
286 See id.
Civilian Casualty JTF 43 cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects.”287 Adhering to these rules would generally make intelligent policy, even if it were not required by customary international law. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The U.S. Government, however, has already expressed its unwillingness to accept much of the study’s findings.288 Indeed, the United States clearly and compellingly articulated its concerns about the study’s methodology.289 As such, it appears especially unlikely to adopt many of the study’s specific findings.
2.
Spec... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
As demonstrated above, the U.S. Government is somewhat unlikely to do so.
Regardless of whether it accepts the duty to investigate as a binding obligation, though, military and political leaders should nevertheless adopt certain standards that accompany the jurisprudence on the responsibility to investigate. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In particular, two specific standards should inform the military’s efforts in investigating both suspected war crimes and suspected civilian casualty incidents, even where a war crime has not occurred.290 First, the U.S. military should adopt the requirement that investigations be independent as a means of securing imp... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The United Kingdom discovered this first hand during their efforts to institute a proper system of investigating civilian deaths allegedly caused by its forces in Iraq. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
When the United Kingdom first arrived in Iraq, the Royal Military Police, a special criminal investigative unit separate from other commands, investigated every incident.291 A short time later, the military changed its policy and allowed commanders to forego a formal investigation if they believed that their subordinat... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
(discussing Rule 161).
288 See John B. Bellinger, III & William J. Haynes, II, A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law, 89 INT’L REV.
RED CROSS 443, 445-45 (2007), available at http://www.icrc.org (search for “Bellinger Haynes”).
289 See... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
289 See id.
290 For a broad introduction to the standards applied to the duty to investigate, see Peter Rowe, Do Soldiers Really Have to Apply Human Rights Law in Military Operations?, 17-18 n.45, The 4th Ruth Steinkraus-Cohen International Law Lecture (May 16, 2006), available at http://www.unawestminster.org.uk/pdf/... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
292 See id.
44 Air Force Law Review Volume 65 policy entered operation, certain incidents in which Iraqi civilians had allegedly perished stoked the curiosity of both the media and Parliament. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In the face of this pressure, the United Kingdom enacted a policy in which “all shooting incidents involving U.K. forces which result in a civilian being killed or injured” receive an independent investigation by the Royal Military Police.293 As evidenced by this example, no longer is it sufficient in all cases for mil... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The requirement of independence in the duty to investigate has long reflected recognition of this truth.294 Beyond independence, the U.S. Government should adopt the requirement of sufficient transparency garnered from the duty to investigate. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The European Court of Human Rights holds that “there must be a sufficient element of public scrutiny of [an] investigation for its results to secure accountability in practice as well as in theory.”295 Of course, investigations need not be absolutely transparent, particularly where classified information is concerned.
... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Specifically, the European Court of Human Rights requires victims to participate in the investigation “to the extent necessary to safeguard” their interests.297 Including victims makes for sound policy, as it enables them to understand the proceedings and to offer their side of the story.
Ultimately, this practice cou... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
D. Giving NGOs a Seat at the Task Force Table If the military successfully adopts the lessons of independence and transparency, much good will follow.
But the military should not 293 See id.
294 The requirement of independence has been enunciated and extolled by numerous courts and commentators alike. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
See HCJ 769/02 The Public Committee against Torture in Israel v. Israel [Dec. 13, 2006] IsrSC ¶ 40 (requiring an independent investigation of targeted killings against civilians taking a “direct part” in hostilities), available at http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf; see also id.
at ¶ ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
No.
21689/93, Eur.
Ct. H.R.
¶ 311 (Apr.
6, 2004) (asserting that the requirement for investigators to “be independent from those implicated in the events” implicitly requires “not only a lack of hierarchical or institutional connection but also .
.
.
practical independence”), available at http://cmiskp.echr.coe.... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
No.
21689/93, Eur.
Ct. H.R.
¶ 314.
296 See id.
Interestingly, the Özkan case itself concerns a situation of military conflict— alleged civilian deaths that resulted from a Turkish military raid of a village while hunting for PKK militants.
See id.
297 Id.
Civilian Casualty JTF 45 stop there.
It should take the... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
This maneuver would usher in a host of benefits while signaling the willingness of the United States to work even with those with whom it disagrees.
Practically speaking, it might not take long to teach NGOs the mechanics of casualty investigations. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Some organizations, like Human Rights Watch, already engage in somewhat sophisticated battlefield investigations the world over.298 Moreover, some humanitarian organizations may want to partner with the military in this way.299 NGOs that engage in civilian casualty investigations presumably conduct their work in order ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Partnering with the military and the host nation government would give NGOs a chance to influence the actors whose actions largely determine the condition of civilians in war.
Human Rights Watch, for one, has previously expressed an interest in certain forms of cooperation with military actors. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In a report analyzing the conflict between Israel and Hezbollah in 2006, Human Rights Watch lamented that Israeli forces did not allow them to interview soldiers when conducting their investigations.300 Participation on the Task Force would abate, if not eliminate, hurdles of this nature with the American military. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
As is implied by Human Rights Watch’s inability to secure interviews with Israeli soldiers, NGOs often conduct investigations without access to crucial facts.301 “It is one of the peculiarities of international humanitarian law that many of the interesting facts are classified or unavailable to those outside the milita... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Legal calculations that require knowledge of “alternative” actions or classified information, for example, are out of the question.303 Yet NGOs do evaluate the legality of strikes for which they do not have all of the information.
Given this knowledge deficit, these organizations may often reach incorrect conclusions,... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Human Rights Watch, for instance, only spent 298 Of course, Human Rights Watch has far from a flawless record for accuracy in civilian casualty investigations.
See infra note 318 and accompanying text.
299 For an example, consider CIVIC’s close cooperation with high-level military actors.
See Marla Bertagnolli-Keena... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
17, 2009) (last visited Feb. 17, 2010).
300 See HUMAN RIGHTS WATCH, FATAL STRIKES: ISRAEL’S INDISCRIMINATE ATTACKS AGAINST CIVILIANS IN LEBANON 10 (2006) [hereinafter FATAL STRIKES], available at http://www.hrw.org/en/reports/2006/08/02/fatal-strikes.
301 See PoKempner et al., supra note 128.
302 See id.
303 See id... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
302 See id.
303 See id.
46 Air Force Law Review Volume 65 two days researching the effects of Israeli airstrikes in southern Lebanon before writing their reports.304 These researchers likely could only spend a short time on the ground due to shortfalls in resources, security, or both.
Whatever their reasons, two d... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
It almost certainly takes more than forty-eight hours of on-the-ground research to lift the fog of war, particularly when the investigators lack any of the military’s targeting information that precipitated the attacks.
Actions like these can stoke the scorn of observers, who lambast the conclusions these organization... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Most of these groups do not automatically denounce every wartime military action as illegal and unethical. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
When a U.S. unmanned aerial vehicle fired a missile that killed an Al Qaeda officer in Yemen, Human Rights Watch did not condemn the attack, for instance, even though five others perished along with the targeted terrorist.306 Instead, Human Rights Watch thoughtfully articulated the factors that legitimized his killing ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Involving NGOs in the Task Force would enhance their own investigations as well as the military’s.
By awarding these organizations access to sensitive information, including classified information in certain cases, the military would allow these select organizations to see the inside calculations—often gray and grainy... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
305 Some allegations against NGOs are more serious, like Alan Derschowitz’s claim that Human Rights Watch sometimes deliberately disregards key facts to suit its ideological whims.
Alan Derschowitz, The ‘Human Rights Watch’ Watch, Installment 1, HUFFINGTON POST, Aug. 21, 2006, http://www.huffingtonpost.com/alan-dersho... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Still others lament the “pacifist and leftist leanings of a lot of NGOs” which can, according to some, make them difficult to trust.
See Dunlap, supra note 49, at 3.
306 See James Ross, Jurisdictional Aspects of International Human Rights and Humanitarian Law in the War on Terror, in EXTRATERRITORIAL APPLICATION OF H... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
307 See id.
308 When dealing with classified information, the Task Force proposed here would obviously need to tread carefully.
But the Task Force would hardly be the first governmental entity to confront the difficulties of sharing sensitive information with foreign partners.
Thus, the Task Force could glean the be... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Some information regarding civilian casualty incidents would likely be too sensitive to share with partner Civilian Casualty JTF 47 Allowing humanitarians inside the military’s mind may have benefits beyond simply improving after-action reports. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Professor David Kennedy has previously chastised humanitarians for fearing involvement in projects of governance.309 Too often, humanitarians view themselves as immune from the costs and consequences of public decision making.310 Humanitarians leave it to others to lead while they stand on the sidelines, attempting to ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
He envisions: [H]umanitarianism which embraced the act of decision—allocating stakes, distributing resources, making politics, governing, ruling.
Which was comfortable intervening because it knew itself always already as a participant in governance.
Which exercised power not as humanitarian knowledge imprinting itsel... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
Beyond urging NGOs to consider the full panoply of considerations in difficult military decisions, involving NGOs would immerse the Task Force, and the broader military apparatus, in a web of beneficial transnational networks.
Some, like John Fonte, would likely fear these networks and accordingly resist any affiliati... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
The United States should certainly be wary of awarding NGOs influence out of proportion with their standing as unelected, “idiosyncratic interest groups,”314 but this truth only members and NGOs.
In such cases, the Task Force would attempt to prepare a report based only on information that the government could disclos... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In cases where information essential to comprehending an incident could not be disclosed, the United States would simply conduct its investigation apart from the partner members and NGOs.
This probably will not happen frequently.
The local people and the host government will push the United States to publicize the fa... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
In such cases, it is likely that the United States would go public with most of the critical facts and circumstances of sensitive attacks rather than risk alienating the support of the local people.
309 See DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM xix (2005).
310 See id.
at ... | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
314 See Dunlap, supra note 49, at 8 (emphasis added).
48 Air Force Law Review Volume 65 sounds a note of caution—not a trumpet of retreat. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721904384956.pdf | https://www.afjag.af.mil/Portals/77/documents/Law%20Review/AFD-100510-068.pdf?ver=fclZq6z2vE9h3ZZDH2oySQ%3D%3D | Nicaragua |
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