On Wednesday 6 September 2017, the international humanitarian law (IHL) community lost one of its prominent scholars, Emeritus Professor Frits Kalshoven. Kalshoven has been a great influence for many generations, including mine. In light of Kalshoven’s birthday anniversary today, I would like to dedicate this contribution to him, since it was his words that inspired me to work on the topic of the International Humanitarian Fact-Finding Commission, or what Kalshoven once described as the ‘Sleeping Beauty’.

‘One may be justified in wondering whether the Commission still has a future before it. Yet, as long as it exists, I for one will continue to plead its cause…’[1]

Kalshoven correctly noted then, that the future of the International Humanitarian Fact-Finding Commission (IHFFC, or the Commission) was justifiably disputed. The introduction of the IHFFC was from the beginning a challenging matter for States, as it gave rise to a lot of controversies from the beginning of travaux préparatoires until the final adoption of Article 90 of Additional Protocol I (AP I).[2] This is also reflected in the provision itself, as it required more than twenty unilateral declarations of acceptance by States before the IHFFC could be constituted.[3] The fact that it took 14 years to officially establish this permanent body, further proves the aforementioned point. Despite the number of initiatives taken by the IHFFC to offer its services,[4] and a few know requests  – like the Médecins Sans Frontières’s  call in 2015 for an independent investigation following the destruction of its trauma centre in Kunduz by U.S. airstrikes – the Commission was not given the opportunity to prove its potential up until May 2017, when the Organisation for Security and Co-operation in Europe (OSCE) asked the IHFFC to lead ‘a post-blast scene forensic and technical assessment against the background of IHL’ for the land mine incident from 23 April 2017 in Pryshyb, Ukraine which resulted in one casualty and the serious injuries of two more personnel of the OSCE mission.[5] This contribution will briefly introduce the IHFFC, and after over-viewing the OSCE request, it will elaborate on whether the ‘Sleeping Beauty’ has finally awakened and the need to embrace its potential.

Overview of the IHFFC

Article 90 of AP I lays detailed rules about the setting up and competencies of the IHFFC as the only permanent body of fact-finding for IHL. The Commission is composed of 15 individuals elected every five years by the States which have recognised the competencies of the IHFFC, and not all States member of AP I. These States need to also ensure that the IHFFC as a whole assures ‘equitable geographical representation’, and that its members are of a ‘high moral standing’ and ‘acknowledged impartiality’. The Commission, nevertheless, serves in its own personal capacity, meaning that it is independent of the States establishing it.

The IHFFC has two competences: (1) to investigate allegations of grave breaches and other serious violations of the Geneva Conventions and AP I, and (2) restore an attitude of respect for the Geneva Conventions and AP I through the facilitation of its good offices.[6] The two competencies are not necessarily consecutive, as they can also function independently. In regard to the first competence, the Commission is concerned only with enquiring into facts, and not delivering a legal verdict. However, the Commission can only enquire into alleged ‘grave breaches’ and ‘other serious violations’, meaning that its functioning goes beyond the mere investigation of the facts as it is called to prima facie legally evaluate the seriousness of the allegations in order to determine its competence. It is important to note here that, although AP I regulates international armed conflicts, nothing,in fact , bars the IHFFC from inquiring serious violations committed during non-international armed conflicts which fall within the broad term of ‘other serious violation’. That being said, the alleged violations need to be treaty-based (i.e. violations of Common Article 3), and not customary.[7] The IHFFC’s material scope is, in this sense, more restricted for non-international armed conflicts. In addition to communicating its fact-finding conclusions to the ‘parties’ via a report (without including elements of legal evaluation), the Commission may also submit ‘recommendations it may deem appropriate’,  and facilitate its good offices in order to re-establish parties’ compliance. ‘Good Offices’ can take many forms, and may include ‘facilitating contacts between the parties, the communication of conclusions to them on the points of fact, comments on the possibilities of a friendly settlement, the receipts of written and oral observations by States concerned’, and more.[8]

States which have permanently acknowledged the competences of the IHFFC – even if they are not the victims of the alleged violations themselves – are competent to submit a request for an enquiry following the conditions enlisted in Part III of the Rules of the IHFFC as adopted in 1992 and amended in 2014. Although the Commission itself is not capable of instigating an enquiry, Article 90(2)(d) allows a ‘party to the conflict’, to resort to the services of the IHFFC ‘in other situations’. The 1987 Commentary of AP I, does not provide much of assistance for an up-to-date interpretation of this section, so the IHFFC approach that ‘States and non-State actors alike, including international organizations, can in principle be Parties to the conflict ‘concerned’ and thus can file a request with legal effect’,[9] is the approach I also embrace. This is something that needs to be taken into account by the drafters of the updated commentary of AP I, especially since the services of the IHFFC has been used in this sense.  To sum up, as I mentioned already, the Commission is competent to enquire into allegations of serious violations during non-international armed conflicts, despite being mandated only in AP I that applies only during international armed conflicts. Additionally, both State and non-State actors can use the services of the IHFFC, but as Article 90(2)(d) clearly states, the functioning of the Commission will be subjected to the consent of the parties.

Concerns over the OSCE’s request

I assume that it is based on this thinking that the OSCE asked the IHFFC to lead an independent forensic investigation in relation to the incident of 23 April 2017 that occurred in Pryshyb (Luhansk Province) and caused the death of a paramedic and the injury of two monitors of OSCE’s Special Monitoring Mission to Ukraine. On 18 May 2017 the Secretary General of the OSCE, Lamberto Zannier, and the President of the IHFFC, Thilo Marauhn, signed a memorandum of understanding, and a distinct agreement relating to the incident. The actual content of both documents is unknown, but what is known is that the IHFFC was mandated to investigate potential violations of IHL, while criminal responsibility and accountability fell outside of its scope.[10] More on the IHFFC’s mandate for this investigation and its quality control, as well as the conclusions of the IHFFC can be found at Rahul Tanwani’s contribution here.

There are a few mixed conclusions that I would like to point out about this request and subsequent report. Firstly, the fact that the memorandum of understanding and the distinct agreement relating to the incident are not easily accessible proves the IHFFC’s capacity to carry the work it promises in a very confidential manner. However, what is interesting here is that the IHFFC was mandated to investigate confidentially and report to the OSCE Secretary General only.[11]  This raises a few questions, such as, was Ukraine actually a party for this request because it had already accepted the competences of the IHFFC since 25th of January 1990? Or was a comprehensive declaration made recognizing the IHFFC competences for this specific investigation? If the latter is not the case, I am sceptical as to how did the OSCE and the IHFFC establish Ukraine’s consent for this investigation, since the model declaration deposited by all States recognising the IHFFC’s competences, mentions only that the State ‘declares that it recognises ipso facto and without special agreement, in relation to any other High Contracting Party accepting the same obligation, the competence of the International Fact-Finding Commission to enquire into allegations by such other Party, as authorised by Article 90 of Protocol I Additional to the Geneva Conventions of 1949’.[12] Emphasis is added in this regard since the term ‘High Contracting Parties’ refers to States only, and not to non-State actors. Also, could this investigation have taken place without Ukraine’s consent since Pryshyb is a non-government controlled area of Ukraine,  and doesn’t that go beyond the IHFFC competences? Lastly, could the fact that the only recipient of the report is the OSCE Secretary General be against the reporting requirements in Article 90(5)(a) of AP I? This and many more questions would have been answered if the documents of the agreement were available.

Another interesting aspect is that the IHFFC is able to carry out its competences during the conflict, which means that there is a pre-assumption that during the incident there was a conflict. While one could argue that the conflict is international in character, as I explained earlier the IHFFC is also competent to carry investigations during non-international conflicts. Therefore, while one can be certain that there was a conflict ongoing during the incident; it is my view that we cannot be certain as to the nature of the conflict per se. This also proves the flexibility of the IHFFC and that it is competent to act impartially during all kinds of conflicts. Lastly, since criminal responsibility and accountability were not part of the IHFFC’s mandate, this denotes the IHFFC’s interest in establishing facts in all conflicts and not pointing fingers and delivering legal verdicts.

Pleading the cause of the IHFFC

Beyond the aforementioned concerns, the IHFFC was given the opportunity and proved that it can effectively and impartially investigate into the facts of a situation of potential violations. It is a fully-established permanent body of fact-finding for IHL, competent to facilitate its good offices to restore an attitude of respect for IHL. Although originally established under Article 90 of AP I – meaning that it applies during international conflicts – the IHFFC is capable of offering its services also during non-international armed conflicts; which is one of the reasons why I consider it to be a vital part of the future compliance puzzle of mechanisms. Beyond this, the IHFFC constitutes an impartial and non-political body, which can take some of the heat out of propaganda wars.[13] The potential of the IHFFC is obvious from its recent action following the OSCE request. What needs to be reconstructed is parties’ attitude towards making use of the IHFFC’s services. Kalshoven’s ‘Sleeping Beauty’ was finally been given the opportunity to prove itself, and what is left now is for the relevant parties to keep the IHFFC awake. With this contribution, I attempted to plead the IHFFC’s cause and provide encouragement for rethinking its potential. However, the will of States remains the indispensable element of any existing or future compliance mechanism, and a vital step can be taken towards embracing the IHFFC during the ongoing negotiations for the proposal of a befitting compliance mechanism during the 33rd International Conference of the Red Cross and Red Crescent in 2019.

[1] Frits Kalshoven, The International Humanitarian Fact-Finding Commission Established by the First Additional Protocol to the Geneva Conventions, in Reflections on the Law of War, Martinus Nijhoff Publishers, (2007), Chapter 38, at 858

[2] ICRC, Commentary on the Additional Protocol I, 1st edn. (Yves Sandoz et al.) 198, at 3602; Frits Kalshoven, The International Humanitarian Fact-Finding Commission: Its Birth and Early Years, in Reflections of the Law of War, Martinus Nijoff Publishers (2007), Chapter 35, at 793- 808.

[3] Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereafter, AP I), Art. 90 (1)(b).

[4] IHFFC, Report on the work of the IHFFC on the Occasion of its 20th Anniversary (2011).

[5] IHFFC, International Humanitarian Fact-Finding Commission to lead an independent forensic investigation in Eastern Ukraine (Luhansk province), News Archive (19 May 2017), at 15, available at http://www.ihffc.org/index.asp?Language=EN&page=home&mode=newsarchive

[6] An exhaustive list of ‘grave breaches’ is provided in Articles 50, 51, 130 and 147 of Geneva Conventions, and Article 11(4) and 85 of AP I.

[7] ICRC, Commentary on the Additional Protocol I, 1st edn. (Yves Sandoz et al.) 1987, para.3622.

[8] ICRC and Swiss Federal Department of Foreign Affair (FDFA), 2nd Discussion on  Strengthening  Compliance with IHL: Functions of a possible IHL Compliance system and their features, 8-9 April 2013, Background Documents (March 2013), at 21.

[9] IHFFC, The IHFFC at 25 Reflecting on Our History and Moving Forward (April 2016), at 2.

[10] See 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 available at: http://www.osce.org/home/338361.

[11] IHFFC, International Humanitarian Fact-Finding Commission to lead an independent forensic investigation in Eastern Ukraine (Luhansk province), News Archive (19 May 2017), at 15, available at http://www.ihffc.org/index.asp?Language=EN&page=home&mode=newsarchive .

[12] IHFFC, Model Declaration, available at: http://www.ihffc.org/index.asp?Language=EN&page=model_declaration.

[13] Charles Garraway, The International Humanitarian Fact-Finding Commission, 34(4) Commonwealth Law Bulleting 813 (2008), at 815.

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