Various challenges are encountered by States involved in contemporary armed conflicts. Military operations are increasingly taking place in urban areas, often with non-State armed groups operating from a civilian environment. In addition to ‘ordinary’ combat, State armed forces are required to interact with the civilian population, and may be expected to carry out policing operations during armed conflict. As the traditional battlefield is being transformed, civilians are placed at greater and more proximate risk. It is commonly argued that the risk to civilians is not sufficiently taken into account by the parties to the conflict, and at times even cynically exploited in order to undermine the opposing party.
The challenges involved in fighting in populated areas and dealing with civilian casualties are not merely operational; they are also legal. While the battlefield no longer looks the same, the legal and public discourse is changing as well. Warfare, namely the manner it is conducted and the manner it is regulated and analysed, is no longer the exclusive domain of senior commanders, military experts and officials serving at the Ministry of Defence. It has been gradually ‘civilised’; while more civilians are directly affected by the conflict and its consequences, the parties to the conflict are exposed to ongoing scrutiny by numerous members of the civilian – non-combatant – society. Their behaviour is closely monitored by other States, international organisations, human rights bodies, courts, politicians, academics and experts, civil society groups, media outlets and the general public. The sensitivity to civilian casualties is high, and the demand for accountability is prominent. In this context, some have highlighted various violations of the law of armed conflict (LOAC), pointing out insufficient compliance and the ‘erosion’ of LOAC. However, it seems that the law has not been stronger in terms of its usage as a normative reference by the parties to the conflict, as well as by different observers whose operational understanding and legal expertise vary.
It is against this background that this book seeks to address the State response to the challenge of civilian casualties, i.e. to explore the duty to investigate those incidents in which the use of force by its armed forces caused civilian loss. As already implied, it is not enough to present a list of rules which States must respect. The analysis would not be complete without examining the legal and practical issues involved in their implementation, and the dynamic behind the formation of these rules.
Similar to present-day discussions related to international law, and in particular to LOAC, it seems that the issue of investigating civilian casualties is
While working on earlier drafts of this book, I was fortunate to enjoy the wonderful support and guidance of a number of special people. I am grateful to my PhD thesis supervisors Professor Charles Garraway and Professor Iain Scobbie; the examiners Professor Christopher Greenwood and Professor Peter Rowe; Miya Keren-Abraham of the ICRC; and Bea Timmer and Lindy Melman of Brill Nijhoff publishers. Finally, I wish to thank my parents Abraham and Rachel and my partner Adrian, to whom I dedicate this book.
Alon Margalit
Tel Aviv 2018