Traités, États parties et Commentaires
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Commentaire of 2016 
Article 52 : Enquiry procedure
Text of the provision*
(1) At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.
(2) If agreement has not been reached concerning the procedure for the enquiry, the Parties should agree on the choice of an umpire who will decide upon the procedure to be followed.
(3) Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1  Article 52 is part of the system elaborated by the four Geneva Conventions of 1949, and subsequently by Additional Protocol I, to ensure that Parties to international armed conflicts comply with their obligations under these instruments. The article is common to the four Conventions.[1] It appears under the heading ‘Repression of abuses and infractions’ in the First and Second Conventions, and ‘Execution of the Convention’ in the Third and Fourth Conventions.
2  Article 52 sets out the legal basis for the establishment of an enquiry procedure when the Parties have diverging views regarding any alleged violations of the Geneva Conventions (paragraphs 1 and 2). Establishing whether a violation of international humanitarian law has occurred in a particular case may help to prevent doubts or inaccurate accusations from undermining the Parties’ willingness to respect this legal framework. Article 52 also seeks to ensure that the Parties put an end to and repress alleged violations, if they are established through the enquiry (paragraph 3).
3  This article is not the only one that requires a verification of facts by means of the compliance mechanisms established under the Geneva Conventions and Additional Protocol I. Other provisions entail, to a certain extent, the need for as-yet unproven facts to be assessed, whether by the Parties to the conflict themselves, the Protecting Powers or their substitutes, the ICRC or the International Fact-Finding Commission established pursuant to Article 90 of Additional Protocol I. These mechanisms all have specific characteristics corresponding to different ways of promoting greater respect for international humanitarian law, and offer complementary tools to ensure respect for the relevant instruments. Some may be tasked to undertake an ‘enquiry’ in its formal meaning, while others, like the ICRC, need to clarify facts and situations within the more general framework of protection activities.
4  Parties to international armed conflicts have the primary responsibility to take appropriate measures, including investigative measures, to redress violations of international humanitarian law. An investigation is, for example, inherent to the grave breaches system established under the Conventions and where applicable, Additional Protocol I.[2] It is a preliminary step in fulfilling the obligation to prosecute persons alleged to have committed or ordered the commission of grave breaches or to hand them over for trial to another Party to these instruments. It is also a prerequisite of the obligation to take measures necessary for the suppression of other violations of the Conventions or Additional Protocol I, i.e. violations which are not characterized as ‘grave breaches’. The obligation to suppress all violations of the Conventions and to ensure the prosecution of those responsible for ‘grave breaches’ will make the formal enquiry procedure unnecessary in most cases. If a State finds that persons depending on it have violated the Convention, it must take measures to redress the situation, whether or not an enquiry has been requested by the adverse Party. The institution of a formal enquiry procedure is therefore only necessary if the existence of the violation is contested. Enquiring into alleged violations of international humanitarian law is also one of the functions that may be exercised by the Protecting Powers (or their substitutes).[3] This function may be part of their duty ‘to safeguard the interests of the Parties to the conflict’[4] or of their role in the ‘conciliation procedure’.[5] Protecting Powers may therefore be used as an alternative to the enquiry procedure.[6] Parties to an international armed conflict may indeed wish to solicit the support of their peers to help them settle disputes related to alleged violations of international humanitarian law. This option has, however, been theoretical so far. Protecting Powers have been appointed on only five occasions since the adoption of the Geneva Conventions in 1949[7] and have never been requested to undertake investigations into alleged violations of international humanitarian law.
5  The ICRC is also entitled to exercise monitoring activities in times of both international and non-international armed conflict.[8] This role, however, is of a different nature than the enquiry procedure. The ICRC usually does not seek to resolve disputes among Parties to an armed conflict concerning alleged violations of international humanitarian law or to make public statements regarding its findings. Except in strictly defined circumstances,[9] the organization focuses on confidential dialogue with each side. The ICRC has also been invited to participate in formal enquiry procedures on a number of occasions. In 1998, for instance, it was asked by the authorities of the Republic of Serbia to open an ad hoc investigation into events in Kosovo.[10] The organization, however, has always declined such proposals, considering that involvement in an enquiry procedure might jeopardize its humanitarian activities in favour of the victims of armed conflict.[11]
6  Lastly, for States Parties to Additional Protocol I, the enquiry function is at the heart of Article 90 of the Protocol, which provides for the creation of a permanent body, the International Fact-Finding Commission.[12] Although it is also related to enquiries into alleged violations of international humanitarian law, Article 90 is not intended to replace Article 52 (Articles 53, 132 and 149 respectively in the other three Conventions). On the contrary, it explicitly states that the enquiry procedure under the Geneva Conventions ‘shall continue to apply to any alleged violation of the Conventions and shall extend to any alleged violation of this Protocol’.[13] This is especially important as Article 52 and its parallel provisions in the other three Conventions have a broader material scope of application. While it allows for enquiries into ‘any alleged violation of the Convention’, Article 90 circumscribes the competence of the International Fact-Finding Commission to violations of a particular seriousness, namely grave breaches or other serious violations of the Geneva Conventions or Additional Protocol I.[14]
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B. Historical background
7  The concept of an enquiry procedure as a means to resolve diverging views among States was not new in 1949. It was introduced into a multilateral treaty for the first time with the adoption of the 1899 Hague Convention (I) for the Pacific Settlement of International Disputes.[15] The procedure was later considerably developed when this Convention was amended in 1907.[16] In its 1907 version, the Hague Convention recommends the establishment of an ‘International Commission of Enquiry’ to facilitate the solution of disputes of an international nature that may arise from ‘a difference of opinion on points of facts’.[17] Such Commission must be instituted by special agreement between the States concerned[18] and its conclusions must be limited to a statement of facts, leaving to these States ‘entire freedom as to the effect to be given to the statement’.[19]
8  In the field of international humanitarian law, a similar procedure, although described in far less detail, was laid down for the first time in the 1929 Geneva Convention on the Wounded and Sick, Article 30 of which provides that: ‘On the request of a belligerent, an enquiry shall be instituted, in a manner to be decided between the interested parties, concerning any alleged violation of the Convention; when such violation has been established the belligerents shall put an end to and repress it as promptly as possible’. At the time of its adoption, this new provision was perceived as a significant step forward in the application of the Convention.[20]
9  Very soon, however, the weakness of the procedure became apparent. It was pointed out that application of the article would be difficult, as it presupposed agreement between the Parties to the conflict on the practical details of the procedure.[21] As early as 1937, the ICRC undertook consultations to discuss the problem and a possible revision of the Geneva Conventions to ensure the effective use of the enquiry in practice.[22]
10  On the basis of these consultations, the ICRC submitted to the 1949 Diplomatic Conference a draft article that had been approved the previous year by the International Conference of the Red Cross in Stockholm. This draft provision was common to the draft First and Second Conventions.[23] It proposed a new ‘investigation procedure’ allowing ‘any High Contracting Party’ to ‘demand the institution of an inquiry’ on alleged violations of the relevant Convention. The draft article provided that the commission of enquiry would be composed of three members selected from a list of persons that would have been prepared in time of peace by the High Contracting Parties. Two members of the Commission would have been appointed by each Party to the procedure and these two members would then together have chosen the third one. Failing an agreement between the first two members, the third one would have been appointed ‘by the President of the Court of International Justice or, if the latter is a national of a belligerent State or incapacitated, by his substitute, or failing the latter, by the President of the International Committee of the Red Cross’. The draft article also provided that the Commission would have been entitled not only to provide conclusions on the disputed facts, but also to make appropriate recommendations.
11  Discussions during the Diplomatic Conference did not, however, reveal support for the ICRC’s proposal. It was felt, rather, that the Stockholm drafts ‘set up a procedure for recruitment which was too complicated, and that it would be appropriate to revert once more to the provision contained in Article 30 of the Wounded and Sick Convention of 1929, while defining its terms more clearly’.[24] The Diplomatic Conference decided therefore to keep the 1929 provision as it was, with the exception of a new paragraph recommending the appointment of an umpire in case of disagreement between the Parties concerning the institution of the procedure.
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C. Scope of application
12  Article 52 applies to alleged violations of the Conventions in international armed conflicts. However, according to the first paragraph, the scope of the enquiry procedure may extend to ‘any’ alleged violation of the Conventions. Thus, nothing would appear to prevent an enquiry procedure being set up to look into alleged violations of common Article 3. In 1949, however, the drafters placed Article 52 in Chapter IX of the Convention and did not intend to extend this procedure to non-international conflicts.[25] In addition, neither common Article 3 nor Additional Protocol II, both of which apply to non-international armed conflicts, makes any mention of an enquiry procedure. It would seem, therefore, that the procedure contained in Article 52 does apply only to alleged violations committed in international armed conflicts. The absence of practice makes it difficult to clarify this issue further. However, Parties to non-international armed conflicts are free – and should be encouraged – to conclude special agreements under common Article 3(3), whereby they could agree to set up an enquiry procedure.[26]
13  As the scope of the enquiry procedure may extend to ‘any alleged violations of the Convention’, it means first that the procedure is not limited to specific categories of violations, such as those reaching a minimum threshold of seriousness. Other provisions on investigation into violations of international humanitarian law do include limitations in their material scope of application. For instance, the Geneva Conventions (and Additional Protocol I) have elaborated a specific system governing individual criminal responsibility, which applies only to the ‘grave breaches’ expressly listed in these instruments.[27]
14  The reference to a ‘violation’ of the Convention in paragraph 1 implies that the work of the investigative body must consist in verifying the existence of unproven or disputed facts and providing a legal assessment of such facts.[28] The notion of ‘violation’ of a legal norm entails both factual and legal aspects. This is further confirmed by paragraph 3 of Article 52. The obligation to put an end to and repress the established violation with the least possible delay presupposes both that the conduct at issue has been verified and that it has been classified in the light of the relevant legal rules.
15  A ‘violation’ in this framework may be perpetrated not only by the armed forces and other persons or groups acting on behalf of the Parties to the conflict, but also by private persons whose conduct is not attributable to the State.[29]
16  An enquiry may be requested concerning any ‘alleged’ violation of the Conventions. Under the procedure envisaged in Article 52, this assumes that there are doubts or diverging views among the Parties to the conflict as to whether a violation of these instruments actually occurred. The purpose of this provision suggests that an enquiry becomes necessary and obligatory once the allegation is contested by the Party whose conduct is questioned. The preparatory work on the Geneva Conventions shows that the procedure was discussed as a means of settling ‘disputes which might arise in connection with the interpretation or the application of the Conventions’.[30]
17  Lastly, with respect to the temporal scope of Article 52, the enquiry procedure may be activated, at any time, either during or after the end of an armed conflict, as long as it relates to violations of the Convention.
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D. Paragraph 1: Conditions for the institution of the enquiry
18  The wording used in Article 52(1) makes it clear that the holding of the enquiry is compulsory once one of the belligerents has asked for it: the procedure ‘shall be instituted’ (‘devra être ouverte’). The unique condition for this obligation is ‘the request of a Party to the conflict’. In theory, the mechanism provided by Article 52 may therefore be activated unilaterally, meaning that it may be imposed on the adverse Party.
19  While the draft article submitted to the Diplomatic Conference in 1949 provided that ‘any High Contracting Party’ would be entitled to ask for the establishment of the procedure, paragraph 1 of Article 52 makes it clear that only a ‘Party to the conflict’ may address such a request. Other Parties to the Geneva Conventions are not allowed to formally launch the procedure. They are, however, entitled to encourage the belligerents to make use of Article 52. This is a means for them to fulfil their duty to ‘ensure respect’ for the Geneva Conventions.[31] In such a case, however, neither of the belligerents is legally bound to accept the enquiry.
20  As provided in paragraph 1, the enquiry must be instituted ‘in a manner to be decided between the interested Parties’. This condition, emphasized on many occasions since the adoption of the article,[32] constitutes a major obstacle to its effective implementation. It is indeed extremely difficult to secure agreement between opposing States in an armed conflict, especially when it is a matter of investigating an alleged offence by one of them and when this may require giving investigators access to the areas or persons concerned.
21  The ‘interested Parties’ which must decide how the procedure is to be carried out include the State requesting the institution of the enquiry and the Party or Parties to the conflict whose conduct is to be investigated. It would be possible that different Parties to the conflict affected by the same pattern of violations (ill-treatment of wounded or sick soldiers belonging to different Parties to the conflict) may decide to jointly request the enquiry.
22  The Parties determining the ‘manner’ in which the procedure is to be carried out are not bound to stick to a particular framework, because Article 52 is silent in this regard. This issue was already discussed during the preparatory work on Article 30 of the 1929 Geneva Convention on the Wounded and Sick. Some delegations insisted that the details of the procedure could not be determined in advance and therefore suggested that procedural rules for the enquiry should not be introduced in the provision. It was therefore decided that this question would be left to the appreciation of the Parties to the conflict based on the circumstances of each case.[33]
23  Defining the procedural framework of the enquiry is a crucial phase. It determines the precise scope of the procedure and helps to ensure that the investigations are carried out in an efficient and credible manner.[34] The Parties could draw inspiration in this regard from existing model rules for the establishment and conduct of international enquiry procedures, such as the relevant chapter of the 1907 Hague Convention (I) for the Pacific Settlement of International Disputes.[35] They should at the very least agree on the composition and powers of the body undertaking the enquiry and on the identification of the facts allegedly amounting to a violation of the Convention(s).[36] Further guidance may be agreed upon by the Parties themselves or left to the appreciation of the investigative body.[37] Decisions to be taken in this regard should address the time frame, methodology and outcome of the procedure, as well as expenses incurred by the procedure.
24  The request for an enquiry may be communicated directly by one of the belligerents or through its Protecting Power, where it exists. The second option should be the normal channel for such communications in time of armed conflict. As mentioned previously, however, this option has never been used in practice. Alternative ways of transmitting the request for an enquiry on behalf of a Party to the conflict may also include resorting to the services of the substitutes of the Protecting Powers, such as a neutral State, the ICRC or any other impartial organization.[38]
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E. Paragraph 2: Procedure if the Parties do not reach agreement on the institution of the enquiry
25  Paragraph 2 of Article 52 was new in 1949. It was added to strengthen the existing enquiry mechanism under Article 30 of the 1929 Geneva Convention on the Wounded and Sick. That provision had never been applied in practice and, when the interested Parties could not reach agreement on the procedure to be followed, it was felt that an alternative solution had to be proposed.[39] Paragraph 2 provides that, in such situations, the Parties should designate an umpire who would be tasked with determining how the enquiry would be carried out.
26  This new paragraph is not much help, however, in facilitating the actual launching of the procedure. First, it does not create a strict legal obligation, as it only suggests that the Parties to the conflict ‘should’ make use of the services of the umpire. Second, it provides that this decision must be based on an ‘agreement’; this merely reproduces, but does not resolve, the weakness of the existing provision in paragraph 1. If the Parties are unable to reach agreement on the organization of the procedure, it is hardly conceivable that they might agree on the appointment of an umpire. Therefore, in spite of the insertion of paragraph 2, the adoption of Article 52 and its parallel provisions in the other three Conventions in 1949 has not brought any progress with regard to the activation of the enquiry procedure.
27  In practice, very few attempts have been made to resort to the enquiry mechanism of the Geneva Conventions, and none have resulted in the actual launching of the procedure. Even when the ICRC endeavoured to encourage the Parties to the conflict to use this mechanism, they never actually set up an enquiry for lack of consent. The procedure was proposed on only four occasions, twice before the adoption of the 1949 Geneva Conventions and twice thereafter:
(a) During the war between Italy and Ethiopia (1935–1936), both sides addressed complaints of violations of international humanitarian law to the ICRC. The organization offered its services to help set up an international commission of enquiry. The Parties, however, never reached agreement on the formation of the commission.
(b) Following the Katyn Massacre (1943), the ICRC was asked by the German Red Cross to participate in the exhumation of the victims and by the Polish government in exile to conduct an independent investigation. The ICRC replied that it would be ready to lend assistance in appointing neutral experts to carry out the enquiry on condition that all the Parties concerned asked it to do so. The Soviet government never addressed such a request and the Polish government withdrew its proposal.
(c) During the Korean War (1952), the Democratic People’s Republic of Korea accused the United States of America of using bacteriological weapons. The US government asked the ICRC to conduct an independent enquiry into this allegation. The ICRC replied that it would set up an enquiry commission if all Parties agreed. This was not possible, however, as the Democratic People’s Republic of Korea never responded to this proposal.
(d) During the war between Israel and Arab States (1973–1974), the belligerents alleged serious violations of international humanitarian law against each other and asked the ICRC to investigate. The ICRC proposed the constitution of two bipartite enquiry commissions,[40] but no agreement was reached between the Parties on this procedure.[41]
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F. Paragraph 3: Follow-up of the enquiry
28  The third paragraph of Article 52 deals with the responsibilities of the Parties to the conflict once it has been established through the enquiry that a violation of the Geneva Conventions has been committed. The same applies to procedures concerning alleged violations of Additional Protocol I, where applicable.[42] This paragraph provides that the Parties ‘shall put an end to [the violation] and shall repress it with the least possible delay’. The conclusions of the investigative body, although limited to the assessment and characterization of past events, is therefore not devoid of factual and legal consequences, and can be of relevance during an ongoing armed conflict. These conclusions entail the duty for the Parties to adopt concrete measures to redress the situation. While the enquiry is a mechanism of an international character, its follow-up involves measures that must be taken at the domestic level.
29  These measures are not optional. Paragraph 3, as indicated by the use of the word ‘shall’, creates a legally binding obligation for the Party whose conduct was found to be unlawful. The mechanism in Article 52 differs in this regard from the classic enquiry procedure, as enshrined in the 1907 Hague Convention (I) for the Peaceful Settlement of International Disputes, according to which the Parties are entirely free to decide what the follow-up to the procedure should be.[43]
30  The measures mentioned in paragraph 3 are rooted in the duty to respect and ensure respect for the Geneva Conventions (and Additional Protocol I, where applicable) in all circumstances. They are also in line with Article 49, which confirms that each High Contracting Party is bound to ensure criminal repression of those responsible for ‘grave breaches’ of the Convention[44] and to take measures necessary for the suppression of other violations.[45] The obligation to terminate an ongoing violation of the Convention is also based on the rules on State responsibility.[46]
31  Two kinds of follow-up measures are mentioned in Article 52. First, the Parties to the conflict must ‘put an end’ to the violation(s). If the violation is still ongoing, for example where Parties to the conflict do not take all possible measures to search for the wounded, sick and dead on the battlefield,[47] the obligation to ‘put an end’ means that the concerned authorities must stop the unlawful conduct. If the violation has already occurred, for example murder of a protected person,[48] the obligation implies that the authorities must ensure that the unlawful conduct will not be repeated. States Parties may determine the best way to comply with this obligation, including, for example, by taking administrative measures, issuing instructions to combatants in conformity with the Convention, or providing relevant training to their armed forces.
32  Second, the Parties to the conflict must ‘repress’ the violation, i.e. search for and apply a sanction to those responsible. This may include penal prosecution and punishment. If the established violation constitutes a grave breach of the Convention(s) or, as applicable, Additional Protocol I, repression must be in accordance with the legislation that each High Contracting Party must enact to ensure ‘effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches’ listed in the Geneva Conventions and Additional Protocol I, where applicable.[49] This also means that further investigation must be carried out in accordance with domestic criminal procedures. While the enquiry conducted on the basis of Article 52 must seek to establish whether a Party to an international armed conflict has violated one of the provisions of the Convention(s), or Additional Protocol I, where applicable, it is not aimed at reaching conclusions regarding individual criminal responsibility. The same consideration applies for acts contrary to the Convention(s) or Additional Protocol I other than grave breaches,[50] for which a Party may also have adopted penal sanctions. Concerning such acts, disciplinary sanctions or other measures may also be applied, depending on domestic law and regulations.
33  A third obligation incumbent on the Party whose conduct was found to be unlawful is not mentioned in Article 52, but derives from customary international law. State practice and opinio juris confirm that a State responsible for violations of international humanitarian law is required to make full reparation for the loss or injury caused.[51] Reparation does not necessarily consist of awarding compensation, as provided under other humanitarian law treaties,[52] but can also take other forms, such as restitution, rehabilitation, satisfaction or the guarantee that the violations will not be repeated.[53]
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G. Developments since 1949
34  The main reason why the mechanism established under Article 52 has so far never been used is related to the conditions for its practical application.[54] The actual opening of the enquiry requires that all interested Parties agree either on the procedure to be followed or on the choice of the umpire. Article 52 does not ensure the automatic activation of the enquiry upon the request of one Party only. In practice, it appears that it is not realistic to expect that Parties between whom relationships have already broken down, and who are involved in an armed conflict with each other, are able to reach agreement on setting up an enquiry, particularly one aimed at addressing an issue as sensitive as violations of international humanitarian law. Where fact-finding missions have been set up in the recent past to investigate such violations, they have invariably involved mechanisms that do not require the ad hoc consent of the Parties. Thus, the ineffectiveness of the enquiry mechanism established under the 1949 Geneva Conventions is due mainly to lack of political will.
35  Another perceived weakness of the enquiry mechanism is its lack of institutionalization.[55] In the absence of a pre-existing permanent body and standard procedure, Article 52 requires lengthy negotiations and preparatory work before investigations can actually start. This may discourage the Parties to the conflict from resorting to this mechanism, especially in situations where the risks of losing essential pieces of evidence and the protection of the victims necessitate a rapid response. If the institutionalization of the enquiry is part of the solution, however, it is not a guarantee of success. The International Fact-Finding Commission, which came into existence in 1991 pursuant to Article 90 of Additional Protocol I, has never been called upon to act. In this case, too, the lack of consent by the Parties to the conflict remains a major obstacle.
36  Despite the failure of the enquiry procedure under the 1949 Geneva Conventions, some experts still support it as a potentially attractive option. This was confirmed through a series of regional expert seminars organized by the ICRC in 2003 on improving compliance with international humanitarian law.[56] The experts stressed that the bilateral nature of the procedure was an advantage that might still be of interest to Parties to the conflict willing to solve disputes over compliance with international humanitarian law without external interference. Proposals were made during the 2003 consultations to overcome obstacles that might be hindering actual resort to the procedure. It was suggested that a draft model enquiry procedure should be developed and made available to Parties to a conflict in order to facilitate their reliance on the mechanism. It was proposed that the formal enquiry procedure established for international armed conflicts could also be used in non-international armed conflicts.[57]
37  To this day, however, the concrete application of Article 52 has remained hypothetical. This does not mean that alleged violations of international humanitarian law are not investigated in practice. On the contrary, such investigations take place regularly. However, instead of enquiries requested by Parties to an armed conflict, which are dependent on their consent, as provided by international humanitarian law, formal investigations often take place on the initiative and under the aegis of the international community, either at the United Nations or at the regional level. This has been possible for both international and non-international armed conflicts.
38  Within the UN system, investigation procedures have been established mainly by the Security Council[58] and the Human Rights Council (formerly the Commission on Human Rights),[59] although other UN bodies have also used such mechanisms within the framework of their respective mandates.[60] At the regional level, fact-finding procedures concerning the conduct of Parties to armed conflicts have been initiated by various organizations, such as the African Union,[61] the Council of Europe,[62] the European Union[63] and the Organization of American States.[64] In some cases, investigative bodies were set up to ensure that the monitoring of the Parties to an armed conflict and their activities was pursued over long periods of time and that reports were released at regular intervals. In other cases, procedures were initiated to investigate a specific past event or series of events which had occurred over a relatively short period of time.
39  Recent decades have also witnessed a considerable development of fact-finding related to international humanitarian law. Investigation has been a necessary and central part of the work undertaken by ad hoc international criminal tribunals, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, mixed national and international criminal tribunals, such as the Special Court for Sierra Leone, and, lastly, the International Criminal Court.
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1 - See Second Convention, Article 53; Third Convention, Article 132; and Fourth Convention, Article 149.
2 - See the commentaries on Article 49 of this Convention and on Article 85 of Additional Protocol I.
3 - See Gasser, p. 348: ‘[T]he Protecting Power may open a formal investigation, if commissioned to do so, only with the consent of the Party to which it is accredited.’
4 - Common Article 8 (Article 9 in the Fourth Convention); see also common Article 10 (Article 11 in the Fourth Convention) and Additional Protocol, Article 5(1).
5 - Common Article 11 (Article 12 in the Fourth Convention).
6 - The Parties to a conflict establishing an enquiry procedure pursuant to Article 52 could, of course, also decide to use the Protecting Powers to conduct this procedure.
7 - See the commentary on Article 8, para. 113; Bugnion, p. 864.
8 - In times of international armed conflict, the ICRC is recognized as having the same supervisory function as the Protecting Powers (Article 126(4) of the Third Convention and Article 143(5) of the Fourth Convention). The ICRC (or any other impartial humanitarian organization) is also entitled to undertake any humanitarian activities that it may deem necessary, subject to the consent of the Parties to the conflict (see common Article 9 (Article 10 in the Fourth Convention) and Additional Protocol I, Article 81(1)). In times of non-international armed conflict, common Article 3(2) provides that the ICRC (or any other impartial humanitarian organization) ‘may offer its services to the Parties to the conflict’.
9 - See ICRC, ‘Action by the International Committee of the Red Cross in the event of violations of international humanitarian law’.
10 - See ICRC, ‘Kosovo: ICRC position on invitation to head investigation’, News Release No. 98/10 of 20 March 1998. For other examples, see section E, para. 27.
11 - The ICRC explains its position as follows: The ICRC will not act as a commission of inquiry and, as a general rule, it will not take part in an inquiry procedure. However, if solicited by one or more parties to a conflict, the ICRC may encourage them to appeal to the International Fact-Finding Commission or, at the request of all the parties to the conflict, it may offer its good offices to help set up a commission of inquiry, limiting itself to proposing non-ICRC persons who are qualified to be part of such a commission. However, the ICRC will only offer its limited services providing this will not in any way undermine its traditional activities or its reputation for impartiality and neutrality. It will also endeavour to ensure that the inquiry procedure provides every guarantee of impartiality and gives all parties the means to put their point of view across. (italics in original) ICRC, ‘Action by the International Committee of the Red Cross in the event of violations of international humanitarian law’, pp. 398–399.
12 - For further details on the International Fact-Finding Commission, see the commentary on Article 90 of Additional Protocol I.
13 - Additional Protocol I, Article 90(2)(e).
14 - Ibid. Article 90(2)(c).
15 - Hague Convention (I) for the Pacific Settlement of International Disputes (1899), Articles 9–14.
16 - Hague Convention (I) for the Pacific Settlement of International Disputes (1907), Articles 9–36.
17 - Ibid. Article 9.
18 - Ibid. Article 10.
19 - Ibid. Article 35.
20 - See Des Gouttes, Commentaire de la Convention de Genève du 27 juillet 1929, ICRC, 1930, commentary on Article 30, pp. 212–220.
21 - In a circular sent to National Societies in 1936, the ICRC stressed that ‘la procédure de l’article 30, qui ne constituait d’ailleurs qu’une ébauche, est insuffisante’ (‘the Article 30 procedure, which was no more than a rough draft anyway, is insufficient’) (ICRC, Révision et extension de la Convention de Genève et Projets de Conventions nouvelles (Revision and Extension of the Geneva Convention and New Draft Conventions), 328th Circular, Geneva, 31 July 1936, p. 6). This problem had already been highlighted during the drafting of Article 30. The President of the First Committee of the Diplomatic Conference had expressed concern that the need to reach agreement on the procedure might ‘paralyse’ the obligation to set up an enquiry (see Proceedings of the Geneva Diplomatic Conference of 1929, Geneva, 1930, p. 406).
22 - These consultations took place within the framework of a Commission of International Experts in 1937, the 16th International Conference of the Red Cross in London in 1938, the Preliminary Conference of National Societies in 1946, the Conference of Government Experts in 1947, and the 17th International Conference of the Red Cross in Stockholm in 1948. For further details on this process, see Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, pp. 374–376.
23 - See Draft Conventions adopted by the 1948 Stockholm Conference, pp. 25–26 and 47–48; see also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, pp. 55–56 and 70.
24 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 119–120.
25 - Common Article 3 was seen in 1949 as the only article applicable in non-international armed conflicts.
26 - For an example of an enquiry procedure having been considered by the Parties to what was, at the time, a non-international armed conflict, see Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia (1991), Article 12, which states: 12. Request for an enquiry. 1. Should the ICRC be asked to institute an enquiry, it may use its good offices to set up a commission of enquiry outside the institution and in accordance with its principles. 2. The ICRC will take part in the establishment of such a commission only by virtue of a general agreement or an ad hoc agreement with all the parties concerned. Reprinted in Marco Sassòli, Antoine A. Bouvier and Anne Quintin, How Does Law Protect in War?, Vol. III, 3rd edition, ICRC, Geneva, 2011, pp. 1713–1717.
27 - See Articles 49–51 of the First Convention and Additional Protocol I, Articles 85–86. Another example may be found in Article 90(2)(c) of Additional Protocol I, which limits the competence of the International Fact-Finding Commission to alleged grave breaches or other serious violations of the Geneva Conventions or Additional Protocol I. See also Article 90(2)(e) of the Protocol.
28 - See Ihraï, p. 159.
29 - See Article 52(1), ‘any alleged violation of the Convention’; see also the commentary on common Article 1 insofar as it relates to the High Contracting Parties’ obligation to ‘ensure respect’ for the Convention also by private persons.
30 - See the Sixth Report drawn up by the Special Committee of the Joint Committee, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 119. This was also clear during the drafting of Article 30 of the 1929 Geneva Convention on the Wounded and Sick; see, in particular, Proceedings of the Geneva Diplomatic Conference of 1929, Geneva, 1930, p. 402.
31 - See common Article 1 and Additional Protocol I, Article 1(1).
32 - See e.g. Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 377; Gasser, p. 352; and ICRC, ‘Strengthening legal protection for victims of armed conflict’, p. 14.
33 - See Proceedings of the Geneva Diplomatic Conference of 1929, Geneva, 1930, p. 399, and Ihraï, p. 158.
34 - Franck/Scott, p. 310.
35 - See Hague Convention (I) for the Pacific Settlement of International Disputes (1907), Articles 9–36.
36 - Ibid. Article 10.
37 - Ibid. Article 18.
38 - See common Article 10 (Article 11 in the Fourth Convention).
39 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 52.
40 - See ‘ICRC proposes commissions of enquiry’, in International Review of the Red Cross, Vol. 14, No. 154, January 1974, p. 49.
41 - For further details on these cases, see Bugnion, pp. 935–939.
42 - See Additional Protocol I, Article 90(2)(e).
43 - See Hague Convention (I) for the Pacific Settlement of International Disputes (1907), Article 35.
44 - See Article 49(2).
45 - See Article 49(3).
46 - See Draft Articles on State Responsibility (2001), Article 30.
47 - See Article 15(1).
48 - See Article 12(2).
49 - See Article 49(1) and Additional Protocol I, Article 85(1).
50 - See Article 49(3) and Additional Protocol I, Article 85(1).
51 - See Henckaerts/Doswald-Beck, commentary on Rule 150, pp. 537–545. The Geneva Conventions of 1949 also address the issue of State responsibility in case of ‘grave breaches’ (see First Convention, Article 51; Second Convention, Article 52; Third Convention, Article 131; and Fourth Convention, Article 148). More generally, the obligation to make full reparation is also part of State responsibility for internationally wrongful acts; see Draft Articles on State Responsibility (2001), Articles 31 and 34–38.
52 - See Hague Convention (IV) (1907), Article 3, and Additional Protocol I, Article 91.
53 - See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of IHL (2005).
54 - This problem was foreseen as early as the preparatory work on Article 30 of the 1929 Geneva Convention on the Wounded and Sick (see Proceedings of the Geneva Diplomatic Conference of 1929, Geneva, 1930, p. 406) and has been highlighted on numerous occasions since then. See e.g. 60 ans des Conventions de Genève et les décennies à venir – 60 Years of the Geneva Conventions and the Decades Ahead, Report of a conference held on 9–10 November 2009, Swiss Confederation/ICRC, Bern, 2010, p. 39.
55 - This weakness of Article 52 is usually mentioned in comparison with the advantage of Article 90 of Additional Protocol I, which creates a permanent fact-finding commission and establishes minimal procedural rules.
56 - See ICRC, ‘Improving Compliance with International Humanitarian Law’, p. 53.
57 - Ibid. p. 68.
58 - See e.g. UN Security Council, Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, 27 May 1994, and Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005.
59 - See e.g. UN Commission on Human Rights, Report on the situation of human rights in Kuwait under Iraqi occupation, prepared by Mr. Walter Kälin, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1991/67, UN Doc. E/CN.4/1992/26, 16 January 1992; UN Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 15 September 2009; UN Human Rights Council, Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, UN Doc. A/HRC/17/44, 1 June 2011; and UN Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1, 23 November 2011.
60 - See e.g. UN Secretary-General, Report of the Mission to Inspect Civilian Areas in Iran and Iraq Which Have Been Subject to Military Attack, UN Doc. S/15834, 20 June 1983.
61 - See e.g. Report of the African Commission on Human and Peoples’ Rights’ Fact-Finding Mission to the Republic of Sudan in the Darfur Region, 8–18 July 2004, EX.CL/364 (XI), Annex III, 20 September 2004.
62 - See e.g. Human Rights in Areas Affected by the South Ossetia Conflict. Special Mission to Georgia and Russian Federation, report by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, COE Doc. CommDH(2008)22, 8 September 2008.
63 - See Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, mandated by Council of Europe decision 2008/901/CFSP of 2 December 2008.
64 - See Inter-American Commission on Human Rights, Third report on the human rights situation in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999.