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 Humanitarian FactFinding Commission

The International Humanitarian Fact-Finding Commission is an organ that investigates grave breaches of international humanitarian law. It is a treaty body foreseen by Article 90 of the 1977 Additional Protocol I to the 1949 Geneva Conventions providing parties to an armed conflict with an independent and confidential mechanism to inquire into “any facts alleged to be a grave breach […] or other serious violation of the Conventions or of this Protocol.” Unlike a judicial accountability mechanism, the IHFFC process aims to limit and defuse political accusations between parties to an armed conflict by providing a good faith alternative and a confidential fact-finding process.

Its entry into force required a minimum of twenty States accepting its competence. This happened in 1991, in the wake of the first Gulf War.

As of October 2021, 76 States had recognized the Commission’s competence. However, Russia, one of the historical members of the Commission, decided to withdraw from it in October 2019, alleging among other arguments, that it was due to the growing risk of abuse of power within the Commission by some unscrupulous States. Thus, illustrating the politicization of the IHL accountability agenda.

Despite the IHFFC depoliticized approach to IHL violations, States have been reluctant to submit cases to the Commission that remains, to this day, inactive. As well, it should be noted that of the five permanent members of the UN Security Council, only the United Kingdom is a party to the Commission (China, France and the United States have never been parties to the Commission and Russia withdraw from it in 2019).

During the 33rd International Conference of the Red cross and Red Crescent in December 2019, States rejected, once more, the previous 2015 proposal co-sponsored by the Swiss government and the ICRC, of establishing a new international mechanism to enhance compliance with IHL. Another proposal made during this Conference was that States recognize the competence of the International Fact-Finding Commission, to investigate violations of IHL but it failed to pass in the final text of the 33rd International Conference as some States opposed as well this idea. However, this demonstrated the cross-regional support made by 31 States and National International Humanitarian Law Commissions for a substantial pledge in support of the Commission.

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

I. 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 (IAC), 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 (NIAC), particularly the violations enumerated in Common Article 3 to the four Geneva Conventions, as long as the parties to the conflict agree. The codification of war crimes committed in IAC and NIAC in 1998 by the International Criminal Court (art. 8 of the Rome Statute) supports the broad mandate of the IHFFC for violations of IHL committed in both type or armed conflict.

Its role is also to “facilitate, through its good offices [to parties to a conflict], the restoration of an attitude of respect for the Conventions and this Protocol” (API Art. 90(2)(c)(ii). These good offices offered by the Commission can be of two kinds: (i) an enquiry into any facts alleged to be a grave breach as defined in the Geneva Conventions and its Additional Protocol I or other serious violation of the Conventions or of this Protocol and (ii) the facilitation, through its good offices, of the restoration of an attitude of respect for the Conventions and this Protocol.

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)) by the States accepting the Jurisdiction of the Commission, from a list drawn up by the same States (each of which nominates one person). The first members were elected in January 1991. The last renewal of the members took place on 8 December 2016 in Berne. The current Bureau of the Commission (the President, the 1st Vice-President and the three Vice-Presidents) was elected amongst the members on 20 February 2017 in Geneva. The current President is Thilo Marauhn. The next elections are set for November 2021 in Berne and will be followed by the first annual meeting in which the 15 newly elected Commission members will take part in spring 2022 in Geneva.

III. FUNCTIONS

1. Exercise of Jurisdiction

Cases may be referred to the Commission from different ways:

•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 cases where States have not explicitly recognized the Commission’s competence, they may still submit cases to the Commission on an ad hoc basis. The Commission needs to obtain the consent of all parties to the conflict concerned in order to begin an inquiry.(API Art. 90(2)(d)). In practice, the Commission has also proactively offered its services to the parties involved in various armed conflict including in NIAC. (infra )

2. 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.

3. Cases brought to the attention of the Commission

In 2015, the IHFFC was contacted by the NGO Médecins Sans Frontières (MSF) regarding the attack of 3 October 2015 that occurred on an MSF hospital in Kunduz, Afghanistan. The IHFFC made offers of services to the United States and Afghan governments to conduct an independent investigation into the circumstances of this attack. While doing so, it noted that it could only act with the consent of one or more of the States involved. However, the United States government declined the IHFFC’s offer but acknowledged its responsibility. It then proceeded with a partially declassified national military investigation.

In 2016, in the course of the Yemen conflict, the IHFFC has taken note of the appeal launched by MSF in relation to the events that occurred in the Razeh district in northern Yemen on 10 January 2016. The Commission had already undertaken the necessary steps to provide its services in this context. As well in the same year, regarding the conflict in Syria, the IHFFC offered its services in relation to the attacks on schools and hospitals in northern Syria on 15 February 2016 which concerned, in particular, an attack against a hospital supported by MSF in Ma’arat Al-Numan (Idlib province).

The IHFFC conducted in 2017 its first and only investigation up to this day since its existence in 1991. The investigation looked into the death of an OSCE employee (ambulance driver) in Ukraine during a period of armed conflict with Russia. The Commission’s report on the incident was forwarded to the OSCE, which decided to make it public, whereas the Commission’s conclusions should remain confidential (article 90(5)(c) of API). The investigation concluded that the munition most likely to have caused the incident was a Russian-made TM-62M anti-tank mine and that “[g]iven the fact that - as was commonly known - the road was frequently used by civilian traffic, any recent laying of anti-vehicle mines constitutes a violation of international humanitarian law because of the predictable indiscriminate effect”.

In 2018, it offered its services to the governments of the Russian Federation and Ukraine by identical letters on 4 December 2018 with regard to the situation concerning the incident that took place in the Kerch Strait on 25 November 2018 but both States refused. The incident was however brought before the International Tribunal of the Sea ( Case No. 26 concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures ), which ordered on 25 May 2019 the surrender of vessels and release of sailors to Russia. On 29 November 2018, Ukraine brought the case in front of the the European Court of Human Rights (ECtH) which ruled, by way of interim measure on 4 December 2018 that, in the interests of the parties and the proper conduct of the proceedings before it, Russia should ensure that appropriate medical treatment be administered to those captive Ukrainian naval personnel who required it, including in particular any who might have been wounded in the naval incident that took place in the Kerch Strait on 25 November 2018. The case is currently pending before the First Section of the ECtHR.

On 7 October 2020, the IHFFC offered its services to the governments of the Republic of Armenia and the Republic of Azerbaijan with regard to the situation in Nagorno-Karabakh and also offered its services to the government of the Federal Democratic Republic of Ethiopia by a letter dated of 29 December 2020 with regard to recent developments in the Tigray region. Finally, in June 2021, the IHFFC offered its services to the government of the Republic of Yemen by offering its good offices regarding the respect of international humanitarian law. To date, no response from any of these States were provided to the IHFFC.

☞ Although States themselves created the International Fact-Finding Commission, they have not directly called on it to make any inquiries. NGOs cannot refer cases directly to the Commission but they may ask States to do so. In practice, the Commission, has proactively offered its ad hoc Fact-Finding services to State parties to various armed conflict since 2015 in the wake of the conflicts in Afghanistan, Syria, Yemen, Ukraine, Armenia-Azerbaijan, Ethiopia and notably regarding accusation of attacks on hospitals.

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, Kuwait, Laos, Lesotho, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Mali, Malta, Malawi, Monaco, Mongolia, Montenegro, Namibia, Netherlands, New Zealand, Norway, Palestine, Panama, Paraguay, Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Serbia, 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 Court; International Criminal Tribunals; Universal jurisdiction

➔ Individual recourse; International Criminal Court; International Criminal Tribunals; International humanitarian law; Penal sanctions in humanitarian law; Universal jurisdiction; War crimes/Crimes against humanity

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

✎ International Humanitarian Fact-Finding Commission Kochergasse 10 CH-3003 Berne, Switzerland Tel.: (41) 58 465 42 00 Fax: (41) 58 465 07 67

@ Website: www.ihffc.org

For Additional Information:

Alagbe, Mérick Freedy, “What role for the International Humanitarian Fact-Finding Commission?”, Politique Étrangère , Issue 1, (January 2020): 161-171.

International Committee of the Red Cross, No agreement by States on mechanism to strengthen compliance with rules of war , News Release, December 10, 2015. https://www.icrc.org/en/document/no-agreement-states-mechanism-strengthen-compliance-rules-war

International Humanitarian Fact-Finding Commission, News from the IHFFC . https://www.ihffc.org/index.asp?page=news

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 La w, 12 (2002): 69–94.

Organization for Security and Co-operation in Europe, Executive Summary of the Report of the Independent Forensic Investigation in relation to the Incident affecting an OSCE Special Monitoring Mission to Ukraine (SMM) Patrol on 23 April 2017* , September 6, 2017. https://www.osce.org/files/f/documents/1/e/338361.pdf

Poulopoulou, Sofia, “Strengthening Compliance with IHL: Back to Square One”, EJIL Talks! , February 14, 2019. https://www.ejiltalk.org/strengthening-compliance-with-ihl-back-to-square-one/

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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