Chapter

The challenges of establishing the facts in relation to "Hague law" violations

Stephen Wilkinson

War crimes and the conduct of hostilities : challenges to adjudication and investigation

Cheltenham ; Northampton : E. Elgar, 2013

p. 313-330

English

This article assesses the unique challenges associated with conduct of hostilities fact-finding. The author begins by presenting general challenges of fact-finding during armed conflict, such as security concerns and a shortage of primary sources. He then turns to the additional challenges presented by the framework of international humanitarian law (IHL). These challenges include determining the applicable IHL rules and the necessity of specific expertise. The article also expands on the complexities that arise in determining such matters as quantitative damages and the legitimacy of a particular target, and suggests measures for overcoming these challenges, such as relying on circumstantial evidence when clear-cut information is not available. The author touches on several types of circumstantial evidence that can be useful when used cumulatively, including assessment of burial sites and past behavioural patterns of those attacked. The article stresses the importance of the subjective assessment of the circumstances as perceived by the ‘attacking’ party through official and ‘unofficial’ reactions, statements, and testimony. The author concludes that these fact-finding challenges are not insurmountable and that the international community should urge the warring parties to review and report their behaviour during hostilities. The author contends that this self-reporting, coupled with creative fact-finding, can facilitate greater enforcement of IHL’s norms. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

• War crimes and the conduct of hostilities : challenges to adjudication and investigation / ed. by Fausto Pocar, Marco Pedrazzi, Micaela Frulli