A Precedent for Post-Strike Investigations for Civilian Casualties in War

In reflecting on 2014, I thought about an overlooked moment for issues of transparency and accountability in military operations. A heated debate in international law is whether there is ever any obligation to conduct a publicly transparent investigation for attacks that result in civilian casualties during armed conflict. That debate has raged, among other places in the blogosphere, including here at Just Security (Jensen v. Alston debate). Many legal experts hold the view that such demands for transparency and accountability are neither reflected in existing law regulating conduct in armed conflict, nor should such demands ever become law. With respect to existing law, they argue that the law of armed conflict includes no such obligations and if international human rights law does, it should not be applied during wartime.

Enter the US President, who stated the following:

“Our immediate focus is on recovering those who were lost, investigating exactly what happened and putting forward the facts. We have to make sure that the truth is out and that accountability exists.

Now, international investigators are on the ground. ..  They are organized to conduct what should be the kinds of protocols and scouring and collecting of evidence that should follow any international incident like this. …. They need to be able to conduct a prompt and full and unimpeded as well as transparent investigation.” (emphasis mine)

Those powerful and straightforward words were spoken after the downing of Malaysia Airline Flight 17.

What might make that situation unique?

The international incident included hundreds of innocent civilians … But what distinguishes that case from ones in which US forces have allegedly struck a wedding convoy or a meeting of tribal elders, and, taken in the aggregate, hundreds of civilians (including in Afghanistan, Pakistan, and Yemen) who have lost their lives in US airstrikes? A full analysis of those questions is well beyond the scope of this brief reflection. For now, the important point is that the President’s statement helps to develop the international norms that demand meaningful transparency and accountability in situations when civilians are mistakenly killed during armed conflict. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.