Reaffirmation and development of international humanitarian law important steps

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International 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
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International 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

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International 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

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International 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)

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International 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.

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International 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

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International 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

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International 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

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International 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

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International 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

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Current status of declarations - overview
International Humanitarian Fact-Finding
Commission (IHFFC)
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International Humanitarian Fact-Finding
Commission (IHFFC)
Current status of declarations - overview
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International Humanitarian Fact-Finding
Commission (IHFFC)

• Functions of fact-finding
• Knowledge of relevant facts is the
• necessary basis for rational
• decision-making

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International 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

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International 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

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International Humanitarian Fact-Finding
Commission (IHFFC)

• 3. Non Governmental Organisations
• Amnesty International
• Human Rights Watch
• International Commission of Jurists

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International 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

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International 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

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International 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?

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International 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.

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International 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

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International 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

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International 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