Title: Reaffirmation and development of international humanitarian law important steps
1International Humanitarian Fact-Finding
Commission (IHFFC) (Article 90 of Protocol
Additional I to the Geneva Conventions)
Presentation of the IHFFC, its procedures and
functioning by Prof. Michael Bothe, President of
the IHFFC and Prof. Eric David, Member of the
IHFFC COJUR, Brussels, 6 June 2007
2International Humanitarian Fact-Finding
Commission (IHFFC)
Reaffirmation and development of international
humanitarian law - Important steps
- Red Cross Conference, Vienna, 1965, Res. XXVIII
- International Conference on Human Rights,
Teheran, 1968, Res. XXIII - XXIst International Red Cross Conference,
Istanbul, 1969, Res. XIII - ICRC Conferences of Red Cross Experts and
Government Experts, 1971 and 1972
3International Humanitarian Fact-Finding
Commission (IHFFC)
Reaffirmation and development of international
humanitarian law - Important steps
- Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law,
Geneva, 1974 1977 - Signature of the two Protocols Additional to the
Geneva Conventions, 1977 - UN General Assembly Resolutions
- Respect for HR in armed conflicts, 19.12.68/2444
- 9.12.70/2674
- 20.12.71/2852 and 2853
4International Humanitarian Fact-Finding
Commission (IHFFC)
- Means to ensure respect of international
humanitarian law - Protecting Power and its substitute (Art. 5 AP I)
- Role of the ICRC (Art. 81 para. 1 AP I)
- Enquiry and Fact-finding Commission (Art. 90 AP
I) - Meetings of the Parties (Art. 7 AP I)
- Dissemination (Art. 83 AP I)
- Rules of application (Art. 84 AP)
- Legal advisors in the armed forces (Art. 82 AP I)
- Repression of breaches (Art. 85 AP I)
5International Humanitarian Fact-Finding
Commission (IHFFC)
- The basis of the IHFFC
- Art. 90 AP I
- Paragraph 1.
- (a) An International Fact-Finding Commission
(hereinafter referred to as the Commission)
consisting of 15 members of high moral standing
and acknowledged impartiality shall be
established - (b) When not less than 20 High Contracting
Parties have agreed to accept the competence of
the Commission pursuant to paragraph 2, the
depositary shall then, and at intervals of five
years thereafter, convene a meeting of
representatives of those High Contracting Parties
for the purpose of electing the members of the
Commission.
6International Humanitarian Fact-Finding
Commission (IHFFC)
- Paragraph 2.
- (a) The High Contracting Parties may at the time
of signing, ratifying of acceding to the
Protocol, or at any other subsequent time,
declare that they recognize ipso facto and
without special agreement, in relation to any
other High Contracting Party accepting the same
obligation, the competence of the Commission to
inquire into allegations by such other Party, or
authorized by this Article -
- (b) This declaration referred to above shall be
deposited with the depositary, which shall
transmit copies thereof to the High Contracting
Parties
7International Humanitarian Fact-Finding
Commission (IHFFC)
- Paragraph 2.
- (c) The Commission shall be competent to
- (i) inquire into any facts alleged to be a
grave breach as defined in the Conventions and
this Protocol or other serious violation of the
Conventions or of this Protocol - (ii) facilitate, through its good offices, the
restoration of an attitude of respect for the
Conventions and this Protocol - (d) In other situations, the Commission shall
institute an inquiry at the request of a Party
to the conflict only with the consent of the
other Party or Parties concerned
8International Humanitarian Fact-Finding
Commission (IHFFC)
- Declarations of recognition of the IHFFC
- 1. Sweden August 31, 1979
- 2. Finland August 7, 1980
- 3. Norway December 14, 1981
- 4. Switzerland February 17, 1982
- 5. Denmark June 17, 1982
- 6. Austria August 13, 1982
- 7. Italy February 27, 1986
- 8. Belgium March 27, 1987
- 9. Iceland April 10, 1987
- 10. Netherlands June 26, 1987
- 11. New Zealand February 8, 1988
- 12. Malta April 17, 1989
- 13. Spain April 21, 1989
- 14. Liechtenstein August 10, 1989
- 15. Algeria August 16, 1989
- 16. Russia September 29, 1989
- 17. Belarus October 23, 1989
9International Humanitarian Fact-Finding
Commission (IHFFC)
- Establishment and further development of the
IHFFC - June 25, 1991
- Establishment of the IHFFC and first diplomatic
conference for the elections (term of office of
five years) - July 8, 1992
- Adoption of the Internal Rules of the IHFFC
- September 8 and 9, 1994
- International Conference concerning the Financial
Procedures for the administrative expenses of the
IHFFC - October 29, 1996
- Second diplomatic conference for the elections
10International Humanitarian Fact-Finding
Commission (IHFFC)
- November 9, 2001
- Third diplomatic conference for the elections
- March 11, 2003
- Amendment of the internal Rules of the IHFFC
- December 7, 2006
- Fourth diplomatic conference for the election
11Current status of declarations - overview
International Humanitarian Fact-Finding
Commission (IHFFC)
12International Humanitarian Fact-Finding
Commission (IHFFC)
Current status of declarations - overview
13International Humanitarian Fact-Finding
Commission (IHFFC)
- Functions of fact-finding
- Knowledge of relevant facts is the
- necessary basis for rational
- decision-making
14International Humanitarian Fact-Finding
Commission (IHFFC)
Fact-Finding provides information relevant for
decision-making to
ACTORS
RE-ACTORS such as
- Parties to a dispute
- Mediators
- Dispute settlement bodies
- International supervisory
- bodies or organs
- Criminal courts
- Public opinion
15International Humanitarian Fact-Finding
Commission (IHFFC)
- Fact-finding institutions
- 1. Traditional decentralised procedures
- Enquiry (bilateral)
- Arbitral tribunals or courts, evidence
- 2. United Nations
- Security Council
- Human rights bodies
16International Humanitarian Fact-Finding
Commission (IHFFC)
- 3. Non Governmental Organisations
- Amnesty International
- Human Rights Watch
- International Commission of Jurists
17International Humanitarian Fact-Finding
Commission (IHFFC)
- Recent fact-finding practice
- 1. Darfur
- Security Council Resolution 1564 (2204), Cassese
mission Result ? criminal prosecution - HRC Resolution S-4/101. Result ? dialogue with
government - NGOs, Human Rights Watch ongoing assessment of
the situation. Result ? continuing political
lobbying - ICRC ongoing assessment of the situation. Result
? major relief operation, appeals
18International Humanitarian Fact-Finding
Commission (IHFFC)
- 2. Lebanon
- Security Council silence!
- HRC Resolution S-2/1. Result ? more then
doubtful - UNEP assessment of pollution damage. Result ?
assistance in remedial action - AI and Human Rights Watch fast evaluation of
damages. Result ? appeals - International Commission of Jurists access to
both sides. Results ? remain to be seen
19International Humanitarian Fact-Finding
Commission (IHFFC)
- Is there a role for the IHFFC in this complex
picture of international fact-finding? - What is the added value of the IHFFC?
20International Humanitarian Fact-Finding
Commission (IHFFC)
- The added value of the IHFFC
- Legitimacy
- it is an agent of the treaty system of
international humanitarian law. - Efficiency
- it provides the advantages of a low key,
non- confrontational approach.
21International Humanitarian Fact-Finding
Commission (IHFFC)
- Elements of a low key approach
- Flexible procedures
- Confidential procedures
- No threat of sanctions
- No blaming and shaming
- Keeps the parties in control
22International Humanitarian Fact-Finding
Commission (IHFFC)
- The new IHFFC
- Good offices as
- provided for by Art. 90 2 (c) (ii)
- an initiative of the IHFFC
- Practice of the IHFFC
23International Humanitarian Fact-Finding
Commission (IHFFC)
- Forms of support to the IHFFC
- Information and liaison
- Enhance the willingness of States affected by
armed conflict - Financial support