The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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International FactFinding Commission

The International Fact-Finding Commission is an organ that investigates grave breaches of humanitarian law. Foreseen by Article 90 of the 1977 Additional Protocol I to the 1949 Geneva Conventions, it was to be an important addition to the Geneva Conventions, providing an independent mechanism to inquire into “any facts alleged to be a grave breach . . . or other serious violation of the Conventions or of this Protocol.”

However, a minimum of twenty States had to accept the competence of the Commission before it could be established. This finally happened in 1991, in the wake of the Gulf War. As of June 2015, seventy-six States had recognized the Commission’s competence.

Jurisdiction

The Commission’s mandate is to investigate grave breaches and other serious violations of the Geneva Conventions and Additional Protocol I. Most of these crimes come under the category of war crimes or crimes against humanity. While the Geneva Conventions (except Common Art. 3) and Additional Protocol I are only applicable to international armed conflicts, the Commission announced (during its second session in 1996) that it was willing to inquire into alleged violations of humanitarian law committed in non-international armed conflicts, particularly the violations enumerated in Common Article 3 to the four Geneva Conventions, as long as the parties to the conflict agree.

Its role is also to “facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol” (API Art. 90.2.c.ii).

Composition

The Commission is made up of fifteen members “of high moral standing and acknowledged impartiality,” elected for five years (API Art. 90.1.a). After accepting the jurisdiction of the Commission, they are elected by the participating States, from a list drawn up by the States (each of which nominates one person). The first members were elected in January 1991. The last renewal of the members took place on 9 December 2011 after a meeting attended by the seventy-two States that have recognized the jurisdiction of the Commission.

Functions

Exercise of Jurisdiction

The way cases may be referred to the Commission presents two innovations, compared with traditional mechanisms set up to investigate grave breaches of humanitarian law:

  • Any State that has accepted the Commission’s competence by acceding to Article 90 may request an inquiry, even if it is not directly concerned by the conflict. Thus, the investigation is not burdened with any suspicion of partiality—which might be implicit if the inquiry were requested by one of the parties to the conflict—and it becomes more of a collective control mechanism for States, based on the notion of public order and the respect for international law. However, for the Commission to be able to carry out its inquiry, the parties to the conflict under investigation must have accepted its competence.
  • The States Parties may also declare once and for all that they “recognize ipso facto and without special agreement” the competence of the Commission to inquire into allegations by any other State Party that accepts the same obligation (API Art. 90.2.a). This means the Commission does not have to ask for any specific permission when it launches an investigation.

In other situations, in which States have not explicitly recognized the Commission’s competence, it can only begin an inquiry requested by one party to the conflict if the other party or parties concerned give their consent (API Art. 90.2.d).

Investigation

A chamber, consisting of seven of the Commission’s members, undertakes the inquiries. These members are not nationals of any party to the conflict and are appointed with due regard to “equitable representation of the geographical areas.” The Chamber can invite the parties to the conflict to assist it and to present evidence, but it may also seek other evidence itself, including through in loco investigations. It must fully disclose all evidence it finds to the parties involved, which have the right to comment on or challenge it.

The result of the inquiry is a report submitted to the parties, with such recommendations as it may deem appropriate. The Commission does not report its findings publicly, unless all the parties to the conflict have requested that it do so, or if it finds that the State that was under investigation has not done anything to bring an end to the violations.

The party or parties requesting an inquiry must advance the necessary funds for expenses incurred by the Chamber. They are then reimbursed by the party or parties against which the allegations are made.

Although States themselves created the International Fact-Finding Commission, they have not yet called on it to make any inquiries. States generally tend to avoid accusing other States of breaches of humanitarian law. When such violations are blatant, they prefer to establish ad hoc inquiry organs, which have a more diplomatic than judicial mission.

NGOs cannot refer cases directly to the Commission, but they may ask States to do so. This is important since this Commission, not the ad hoc Fact-Finding missions set up under other circumstances, is the only permanent international investigative body provided for under the Geneva Conventions.

The States that have currently recognized the competence of the International Fact-Finding Commission are Algeria, Argentina, Australia, Austria, Belarus, Belgium, Bolivia, Bosnia-Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Cape Verde, Chile, Colombia, Cook Islands, Costa Rica, Croatia, Cyprus, Czech Republic, Estonia, Democratic Republic of Congo, Denmark, Finland, Germany, Greece, Guinea, Hungary, Iceland, Ireland, Italy, Japan, Korea, Kuweit, Laos, Lesotho, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malawi, Mali, Malta, Monaco, Mongolia, Montenegro, Namibia, Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Portugal, Qatar, Romania, Russian Federation, Rwanda, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Serbia and Montenegro, Seychelles, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, Togo, Tonga, Trinidad and Tobago, Ukraine, United Arab Emirates, United Kingdom, and Uruguay.

Judicial Mechanisms to Punish Grave Breaches of Humanitarian Law

In addition to this mechanism to monitor and enforce the implementation of the Conventions, humanitarian law foresees various ways to investigate, prosecute, and punish violations of its rules. They are both based on States’ obligations to punish the authors of grave breaches of humanitarian law under the system of universal jurisdiction, which makes it possible for victims to file complaints before national courts of any country.

Other non-permanent mechanisms have been set up on an ad hoc basis to punish grave breaches of humanitarian law, such as the International Criminal Tribunals.

The Statute of the International Criminal Court was adopted in Rome on 17 July 1998 and entered into force on 1 July 2002. From this date, individuals suspected of committing crimes over which the Court has jurisdiction may under specific circumstances be prosecuted by the Court.

International Criminal CourtInternational Criminal TribunalsUniversal jurisdiction

Individual recourseInternational Criminal CourtInternational Criminal TribunalsInternational humanitarian lawPenal sanctions in humanitarian lawUniversal jurisdictionWar crimes/Crimes against humanity

List of States Party to International Humanitarian Law and Human Rights Conventions (no. 2a)

International Fact-Finding Commission

Palais Fédéral

CH-3003 Berne, Switzerland

Tel.: (41) 31 322 30 82

Fax: (41) 31 324 90 69

@ http:// www.ihffc.org

For Additional Information: Krill, Françoise. “The International Fact-Finding Commission.” International Review of the Red Cross 281 (March–April 1991): 190–207.

Mokhtar, Aly. “To Be or Not to Be: The International Humanitarian Fact Finding Commission.” Italian Yearbook of International Law 12 (2002): 69–94.

Roach, Ashley. “The International Fact-Finding Commission—Article 90 of Protocol Additional to the 1949 Geneva Conventions.” International Review of the Red Cross 281 (March–April 1991): 167–89.

“Rules of the International Humanitarian Fact Finding Commission (Adopted on July 8, 1992).” International Review of the Red Cross 293 (1993): 161.

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