In order to secure the guarantees afforded to the victims of armed conflicts, Article 90 of the First Additional Protocol to the Geneva Conventions of 1949 provides for the establishment of an International Fact-Finding Commission.

The Commission was officially constituted in 1991 and is a permanent international body whose main purpose is to investigate allegations of grave breaches and serious violations of international humanitarian law. The Commission is thus an essential mechanism to help States ensure the international humanitarian law is implemented and respected during times of armed conflict.

The Commission is composed of fifteen individuals acting in their personal capacity and elected by the States that have recognised its competence. Although already 70 States from all the Continents have recognised it, the Commission has not yet been called upon.

The Seat of the Commission is in Berne. In its capacity as the depositary, Switzerland runs the Secretariat of the Commission.

The Geneva Conventions of 1949 as supplemented by the additional Protocols of 1977 set out principles and rules, binding on the parties to armed conflicts, designed to protect the victims of those conflicts. From the outset those responsible for the Conventions have realised that it is not enough simply to state the rules. As well, provision must be made for the implementation and enforcement of the rules. Accordingly, among other means, the Conventions and Protocols require the parties to disseminate knowledge of the rules to their armed forces and more widely, to acknowledge the role of the Protecting Powers and the International Committee of the Red Cross, and to provide for the prosecution and punishment of individuals who breach the rules.

A new method of implementation: the Commission

The first Protocol of 1977 added an important new element to support the implementation of international humanitarian law. It provided in article 90 (set out on pp 10 - 13 along with the common article in the 1949 Conventions relating to enquiries) for the establishment of a permanent International Humanitarian Fact-Finding Commission. The Commission is competent to enquire into certain allegations of breaches of the Conventions and the Protocol. In 1991, following the acceptance of that competence by 20 States parties to the Conventions and Protocol I, those States elected the 15 original members of the Commission. A State accepts the Commission's competence by depositing the appropriate declaration with the Swiss Government as depository of the Conventions and the Protocols. The number has more than doubled in the last seven years, it includes more than one third of the Parties to the first Protocol, and the States come from all continents as appears from the map in the centrefold of this pamphlet.

In 1992, following initial meetings and the adoption of its Rules the Commission became operational.

The broad purpose of the Commission is to protect the victims of armed conflict by obtaining the observation of the principles and rules of international law applicable in armed conflict. In particular the Commission is competent to

1. enquire into any facts alleged to be a grave breach as defined in the Conventions and the Protocol or other serious violations of the Conventions or the Protocol,
2. facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and the Protocol.

The Commission has that competence if the States parties to the proceeding have deposited the appropriate declarations accepting its competence. In such a case no further manifestation of consent is needed for the Commission's competence to be established.

As well, the Commission may institute an enquiry in other situations at the request of a party to the conflict, but only if the other party or parties concerned consent. In that context the Commission has stated its willingness to enquire into alleged violations of humanitarian law, including those arising in non-international armed conflicts, so long as all parties to the conflict agree. It has in addition expressed its conviction of the need to take all appropriate initiatives, as necessary in cooperation with other international bodies, in particular the United Nations, with the purpose of carrying out its functions in the interest of the victims of armed conflict. That conviction is based in part on Articles 89 and 1(1) of the first additional Protocol and Article 1 common to the Geneva Conventions. Given the special characteristics of international humanitarian law, the parties might properly be strongly urged to give their consents, for instance by the Secretary-General, the Security Council or the General Assembly of the United Nations, and the Council might go further and require that an enquiry be undertaken, in terms of Chapter VII and Article 103 of the Charter of the United Nations.

Read more about the competence of the Commission and its good offices.

The 15 members of the Commission are to be of high moral standing and acknowledged impartiality. They are elected to five year terms by those States parties which have accepted the competence of the Commission. They serve in their personal capacities, an obligation which is reinforced by the solemn declaration that they all make that they will exercise their functions as members impartially, conscientiously and in accordance with the provisions of the Protocol and the rules including those concerning secrecy. Among the current members are medical doctors, judges, high ranking military experts, diplomats and scholars of international law.

When a complaint is initiated, the enquiry is to be undertaken, unless the parties otherwise agree, by a chamber of seven members: five members of the Commission, not nationals of any party to the conflict, appointed by the President of the Commission on the basis of equitable representation of the geographical areas, after consultation with the parties to the conflict, and two ad hoc members, again not nationals of any party to the conflict, one to be appointed by each side.

The chamber is to invite the parties to assist it and to present evidence. The chamber may seek such other evidence as it considers appropriate and may carry out an investigation of the situation on the ground. The chamber is to fully disclose all evidence to the parties which have the rights to comment on it and challenge it.

Once that procedure of the gathering of evidence is complete the chamber is to make findings. It is the Commission itself which submits to the parties a report on those findings, along with such recommendations as it may consider appropriate. If the Commission is unable to secure sufficient evidence for factual and impartial findings, it is to state the reasons for that inability.

The Commission may not report its findings publicly, unless all the parties to the conflict agree.

The Swiss Government provides the Commission with the necessary administrative facilities for the performance of its functions. The administrative expenses of the Commission are met by contributions from the States which have made the declarations under the Protocol and by voluntary contributions. The States parties have now adopted a set of financial regulations which in essence adopt the proportions established by the United Nations General Assembly for the expenses of the United Nations. The party or parties to the conflict requesting an enquiry must advance the necessary funds for the expenses incurred by a chamber and are to be reimbursed by the party or parties against which allegations are made to the extent of 50% of the costs of the chamber.

Principle and its application

The Commission must remain true to certain basic characteristics expressed or implied in Article 90: it must carry out its functions in an independent and impartial way, in accordance with the international law requirements of fair procedure and in general on the basis of the consent of the parties. Consistent with the purpose, competence and basic characteristics of the Commission, there is as well considerable flexibility for making adaptations in the operation of the Commission with the consent of the Parties, for instance in respect of

• the means of initiating an enquiry; so a State which has accepted the competence of the Commission may initiate an enquiry into an alleged grave breach or other serious violation even although it is not a party to the conflict, or the Commission process might be facilitated through the United Nations
• the composition of the particular chamber
• the procedure to be followed
• the financing of the enquiry
• the form of the conclusions of the Chamber and Commission
• the publicity to be given to the findings and recommendations of the chamber and Commissio

The Commission is convinced that its effectiveness as a mechanism for prompting compliance with international humanitarian law through fact-finding and the exercise of good offices will increase with the growing number of states making the declaration under Article 90 of the Protocol. It is encouraged by the recent increase in the number of States accepting its competence. The Commission is encouraged as well by the declaration which was adopted by the International Conference for the Protection of War Victims held in Geneva from 30 August to 1 September 1993. The States participating in that Conference urged all States to make every effort to contribute to an impartial clarification of the alleged violations of international humanitarian law and, in particular, to consider recognising the competence of the Commission.

The Commission

• reflects the humanitarian and non political character of the law for the protection of the victims of armed conflict
• is a permanent body available to the international community whenever necessary and with the prospect of the build up of experience; ad hoc appointments can be avoided
• has within its membership highly qualified, internationally recognised, independent experts covering relevant areas of expertise
• offers guarantees of fair and thorough procedures for finding the facts
• is committed to restoring an attitude of respect for the Conventions and the Protocol, to the advantage of all including the parties to the conflict and especially the victims.

The International Humanitarian Fact-Finding Commission is a young institution established only in 1991, despite the fact that Protocol I was adopted in 1977. With the approval of its rules of procedure in July 1992, the Commission has become operational. Since then its work has concentrated on practical matters such as the availability of equipment for enquiries in loco, setting up lists of special experts, discussing the experience of ICRC delegates in the field, establishing ways and means of introducing the Commission to the international community and of drawing the international community's attention to its availability, and, last but not least, elaborating a scheme for financing the costs of its regular activities.

The Commission is convinced that within its area of competence it can serve the interests of the international community better than any other fact-finding body. There is no valid reason for creating costly new institutions on an ad hoc basis as long as a permanent body exists for the same purpose. It is up to the international community as a whole and to individual States to realise the importance and usefulness of the Commission and to take advantage of its availability.

The Commission has received support and encouragement through a number of resolutions, declarations, recommendations and guidelines adopted by international institutions and bodies. In particular, these documents have called upon States to accept the competence of the Commission and to use its services. The following list contains the major examples:

United Nations General Assembly:

• Resolution 55/148 of 12 December 2000;
• Resolution 57/14 of 19 December 2002;
• Resolution 59/36 of 16 December 2004.

United Nations Security Council:

• Resolution 1265 of 17 September 1999;
• Debate on the protection of civilians in times of armed conflict, 9 December 2005.

Resolutions of International Red Cross/Red Crescent Conferences:

• Plan of Action adopted by the 27th International Red Cross and Red Crescent Conference 1999;
• Declaration adopted by the 28th International Red Cross and Red Crescent Conference 2003;
• Resolution 1 adopted by the same Conference.

Other bodies:

• Council of Europe, Parliamentary Assembly: Recommendation 1427 of 23 September 1999;
• European Union: Guidelines on promoting compliance with international humanitarian law of 12 December 2005.