Article

A contextual-functional approach to investigations into right to life violations in armed conflict

Luca Gervasoni

• Questions of international law, Zoom-in 36, 2017, p. 5-26

English

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International human rights courts and quasi-judicial mechanisms have played a fundamental role in establishing criteria that apply to the conduct of investigations in cases concerning the loss of life. The purpose of this contribution is to explore the source of those parameters, what they entail in terms of practical activities that States are bound to carry out in order to satisfy their duty to investigate, and verify how they apply to situations of armed conflict. The following analysis unveils the existence of some issues that hinder an unmodified transposition of investigative standards elaborated for peace situations to contexts of armed conflict; it analyzes decisions of human rights bodies that have tackled and partly overcome some of those critical issues; it tries to detect challenges that still remain and to envisage a coherent theoretical framework applicable to varying scenarios and capable of leading to satisfactory results in any such case. In so doing, this contribution tries to identify a common denominator characterizing the recalled judgments, detecting it in a functional-contextual approach to the duty to investigate and conclud-ing that the ensuing obligation is not unrealistic, even in times of armed conflict, since it is inherently flexible and context-specific.

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