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Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Commentary
of 1987
International Fact-Finding Commission
[p.1037] Article 90
-- International Fact-Finding Commission
[p.1039] 3600 Proposals had already been put forward in 1949 aimed at automatically setting into motion a procedure of enquiry in the case
of a breach of the Conventions. However, after lengthy
discussion, (1) it had finally been necessary to abandon
[p.1040] these efforts and settle for the brief provision contained
in the four Conventions of 1949. (2) This provision never achieved a
tangible result. Despite the efforts of the ICRC, States never
succeeded in actually setting up an enquiry because the consent of
the Parties concerned was lacking. (3)
3601 From the beginning of the ' travaux préparatoires ' to the Diplomatic Conference of 1974-1977, the necessity for some form of
check on compliance with the rules applicable in case of armed
conflict was emphasized by the experts. The development of Article 5
' (Appointment of Protecting Powers and of their substitute), ' and
the provision relating to the training of qualified personnel
Article 6
-- ' Qualified persons ') reflect this concern. However,
some wished for an additional mechanism, (4) a sort of "fall back"
institution. (5)
3602 The ICRC, for its part, was not at all opposed to this. It has always considered that it was not itself an investigative body,
publishing findings and reporting on breaches. (6) However, because
there was no specific proposal from the experts, it did not include
in the draft a provision relating to commissions of enquiry. Thus the
main foundations for the present article were two amendments, (7)
presented during the course of the Conference. One of these proposals
was even more ambitious than the present Article 90
, since it was
entitled "Permanent Commission for the Enforcement of Humanitarian
Law", while the other proposal bore the title "International Enquiry
Commission". In one of the drafts the members of the commission were
to be appointed by the ICRC, while the other draft recommended the
establishment of regional lists for this purpose. These texts gave
rise to new amendments (8) and proposals. Long and difficult
discussions took place in the Committee. (9) Voting took place almost
paragraph by paragraph, and the text was finally adopted as a whole
with 40 votes in favour, 18 against, and 17 abstentions. (10) More or
less the same happened in the plenary meeting which finally adopted
the text of the article with 49 votes in favour, 21 against, and 15
abstentions. (11)
[p.1041] Paragraph 1 -- Establishment of the Commission and election of its members
' Sub-paragraph ' (a)
3603 The Commission in question is an International fact-finding Commission (12) consisting of fifteen members. This title actually
indicates the scope of the Commission's competence. In principle it
is only concerned with facts, and essentially has no competence to
proceed to a legal assessment of the facts that have been
established. However, the analysis of paragraph 2(c) of this article,
which defines the Commission's area of competence more precisely,
will show that the Commission may be called upon to provide a legal
evaluation of the extent of its mandate. Similarly, paragraph 5 shows
that the Commission,s conclusions may go beyond simply reporting the
facts.
3604 The composition of fifteen members corresponds to the proposals of some of the initiators of the article, (13) and seems appropriate
when one refers to paragraph 3 which provides that the enquiry shall
be undertaken by a Chamber of seven members, of whom only five have
to be members of the Commission. Thus it is possible to constitute
simultaneously two, or even three Chambers, depending on the
requirements of the situation.
3605 The members of the Commission must have a high moral standing and their impartiality must be "acknowledged". This phrase is also found
with regard to the supervisory bodies set up under some of the human
rights conventions. (14)
3606 Thus the criterion of impartiality is opposed to the election of persons who are too closely linked by their function or their
profession to the politics of the State from which they come. (15)
3607 Similarly a person who is known for his uncompromising public position with regard to States which are or could be involved in an
armed conflict, would not be eligible. Furthermore, it is
self-evident that once they have been elected, members of the
Commission should abstain from making any public comment on current
armed conflicts. (16)
[p.1042] 3608 It should also be noted that once the conditions laid down in sub-paragraph (b) have been fulfilled, the obligation to establish
the Commission is not related to the existence of an armed conflict.
It is therefore a permanent, impartial and non-political body.
' Sub-paragraph ' (b)
3609 This provision is closely related to the "optional clause on recognition of compulsory competence", which is contained in
paragraph 2(a). (17) This means that the Commission will not be set
up until twenty Contracting Parties have agreed to recognize ' ipso
facto ' and in advance the Commission,s competence. (18) Then, it
must be constituted, and the depositary is bound to convene, at a
constitutive meeting, the representatives of these twenty countries
for the purpose of electing the members of the Commission. Thus it is
primarily a body not of all the Parties to the Protocol, but of the
Parties which in advance agree to accept its competence.
Nevertheless, it is not excluded that other Parties to the Protocol
may have recourse to the Commission in a particular case, as shown in
paragraph 2(d).
3610 The members are elected for five years; at the end of this period the depositary convenes another meeting of all the Parties concerned,
for the purpose of holding another election.
3611 The text contains only some brief ideas on the procedure to be followed during these meetings. However the depositary may seek
guidance, for example, from the provisions contained in certain
conventions on human rights, to resolve problems that have not been
regulated: quorum, required majority, possibility of re-election
etc. (19) The States participating in the meeting may obviously
choose candidates from their own nationals. However, in view of the
increased competence given the Commission in case of application of
paragraph 2(d), it would seem desirable that the Commission is not
exclusively composed of representatives of the electing countries.
' Sub-paragraph ' (c)
3612 The Commission is independent from the States which establish it. This independence is clearly indicated in sub-paragraph (c) by the
words which state that the members serve "in their personal
capacity", i.e., in complete freedom. They do not receive
instructions. In this context it may be recalled that the members of
the Human Rights Committee take an oath or make a solemn [p.1043] declaration, partly inspired by the one taken by judges of
the International Court of Justice, to perform their duties and
exercise their powers "honourably, faithfully, impartially and
conscientiously". (20)
' Sub-paragraph ' (d)
3613 Candidates must have "the qualifications required". One suggestion presented during the discussions was aimed at nominating
experts who should "not only be of great personal integrity but
should be acquainted with, and have interdisciplinary experience of,
the various aspects of the Geneva Conventions and the
Protocols". (21) It should be recalled in this respect that the
members of the Commission could not leave any legal problem wholly
out of consideration.
3614 As regards the clause which requires an equitable geographical representation, this is common for bodies with supervisory functions
under the human rights conventions which combine it with the
requirement of "representation of the different forms of civilization
and of the principal legal systems". (22) The last point may be
important for the assessment of evidence (paragraph 4). (23) The
criterion of geographical distribution should, if possible, be
considered in relation to all the Parties to the Protocol and the
Conventions, and not only the countries which recognize ' ipso
facto ' the Commission's competence. (24)
' Sub-paragraph ' (e)
3615 In the case of a vacancy, the Commission proceeds by co-option, based on the original list of candidates presented at the
constitutive meeting or the last meeting convened for an election.
The candidate who obtained most votes from the reserve list will not
necessarily be elected, since the criteria of qualification and
geographical distribution must be respected. (25)
' Sub-paragraph ' (f)
3616 This clause seems to cover only the availability of the necessary locations and secretarial facilities, (26) independently of the
expenses provided for under paragraph 7.
[p.1044] Paragraph 2 -- The Commission's area of competence
' Sub-paragraph ' (a)
3617 By analogy with Article 36, paragraph 2, of the Statute of the International Court of Justice, this provision contains an optional
clause on recognition of compulsory competence (27) for States which
at the time of signing, ratifying or acceding to the Protocol, or at
any subsequent time, declare that they recognize this competence
' ipso facto ' (de ' plein droit ' in the French version) with
respect to any other State making the same declaration. Thus only
those States which choose to, and which commit themselves in advance,
are bound by the obligation to accept the enquiry. This
formulation (28) established a compromise between two positions which
created a serious rift between the participants of the Conference,
one side insisting on a system of compulsory enquiry, while the other
was irreversibly opposed to what they regarded as an intolerable
encroachment on the sovereignty of States. (29) A final attempt to
make the enquiry compulsory "in the case of a violation of the rules
in occupied territory" also failed in plenary meeting of the
Conference, (30) even with a restriction limiting this clause to
territory occupied as a result of aggression. (31)
3618 There is no doubt that only States are competent to submit a request for an enquiry to the Commission, to the exclusion of private
individuals, representative bodies acting on behalf of the
population, or organizations of any nature. On the other hand, there
is no reason why a Protecting Power, duly entrusted in protecting the
interests of a Party to the conflict which had recognized the
Commission's competence, could not submit a request to the latter in
the context of its general mandate. Moreover, it is not necessarily
the Party which is the victim of the alleged violation which requests
the enquiry. Any Contracting Party in the sense of paragraph 1 (b)
can do so, provided that the request applies to another Contracting
Party in the sense of the same provision. As regards the Commission,
it is absolutely not permitted to act on its own initiative. (32)
' Sub-paragraph ' (b)
3619 This provision obliges the depositary to notify all Parties to the Protocol, and even all Parties to the Conventions in accordance
with Article 100
' (Notifications), ' [p.1045] sub-paragraph (c), and
not only the Contracting Parties who made a declaration on compulsory
competence in accordance with sub-paragraph (a) of this paragraph.
' Sub-paragaph ' (c)
' (i) -- Enquiry '
3620 The Commission is competent to enquire into facts and not to judge. If a submission regarding certain facts alleged to have taken
place is made in due form, i.e., in accordance with sub-paragraph (a)
above, the Commission is competent to try and establish whether these
facts took place.
3621 Moreover, this does not apply to all facts. The allegation which is submitted to the Commission must relate to a "grave breach" or
"serious violation" of the Conventions or the Protocol. Thus the
Commission must pass judgment on the admissibility of the request.
Breaches and violations which are not serious are excluded, which in
itself implies first of all a legal appraisal, which may not always
be easy. Minor violations may become serious if they are repeated,
and it is then up to the Commission to determine this, (33) in order
to establish its competence. Virtually no distinction is made between
grave breaches and serious violations in the text of the Conventions
or the Protocol, which almost always refers to "grave breaches". A
serious violation may be found which is not covered by the list of
grave breaches. (34)
3622 As we saw above, only grave breaches and serious violations of the Conventions and the Protocol fall under the competence of the
Commission, and not those of other rules of the law of armed
conflict, whether these are rules of customary law or not. Thus it is
up to the Commission to interpret the provisions of the Conventions
and of the Protocol, where necessary, to determine its competence on
this point.
3623 Some delegates at the Conference expressed the fear that in this way the Commission would come up against some thorny problems
regarding its own competence, which could become a source of possible
controversy. (35) This is yet another reason why the Commission
should include amongst its members highly qualified lawyers. If the
Commission had to spend a great deal of time on lengthy discussions
regarding its own competence, its efficacy would be compromised.
[p.1046] ' (ii) -- Good offices '
3624 When it has taken note of facts which seem to it to constitute grave breaches or serious violations, the Commission is invited to
facilitate, through its good offices, (36) the restoration of an
attitude of respect for the provisions concerned. This clause is
confirmed and even extended in paragraph 5(a) below, in the sense
that, in providing such good offices, the Commission has to submit to
the Parties concerned such recommendations as it deems appropriate.
Once again it is difficult to imagine that the Commission can invite
the restoration of an attitude of respect for certain provisions
without having first formed an opinion regarding their non-respect.
However, as the Commission must not pronounce on questions of law, it
must be careful not to include such elements of legal evaluation in
its report. Thus they would only have internal value, (37) and the
Commission should only express in the report a ' prima facie '
appraisal. (38)
3625 The term "good offices" can be understood to mean the communication of conclusions on the points of fact, comments on the
possibilities of a friendly settlement, written and oral observations
by States concerned, etc. (39)
' Sub-paragraph ' (d)
3626 This sub-paragraph creates the possibility of resorting to the Commission for States which have not declared in advance that they
recognize the competence of this Commission, in accordance with
sub-paragraph (a) of this paragraph. This means that any Party to an
international armed conflict, even if it is not a Party to the
Protocol, may approach the Commission regarding an allegation of a
grave breach or serious violation of the Conventions, which adds to
the significance of the creation of the Commission. If such a Party
to the conflict is a Party to the Protocol, it can do the same in the
context of the Protocol. However, the Commission will consider itself
to be competent only when the Party or Parties concerned give their
consent. The question may arise whether such consent should be deemed
to have been obtained in advance when the Party which is the subject
of these allegations is one of those that recognized the Commission,s
competence ' a priori ' (sub-paragraph (a) above). This
interpretation would undeniably introduce an element of inequality:
the Parties to the conflict which have not recognized the compulsory
competence of the Commission could force a Party which has recognized
this competence to accept the enquiry, but not the [p.1047] other way
round. (40) This does not seem to correspond to the wording of
subparagraph (a) of this paragraph. In fact the "other situations"
referred to here are situations in which the conditions set out in
sub-paragraph (a) have not been fulfilled and in which the clause on
recognition of compulsory competence therefore does not apply. Only
States which recognize the competence of the Commission ' a priori '
may impose an enquiry on a State which has done the same. This
provision has the advantage of allowing all Parties to an armed
conflict, including national liberation movements, to resort to the
Commission on a case by case basis, but at any time, though obviously
subject to the condition that the challenged Party gives its consent.
' Sub-paragraph ' (e)
3627 The article which is common to the four Conventions and is referred to in this sub-paragraph, reads as follows:
"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.
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.
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."
3628 This obligation, which applies to all alleged violations, and not solely to grave breaches and serious violations, is not only
confirmed, but is extended to all alleged violations of the Protocol.
All Parties to the Protocol which do not recognize the Commission's
competence, as provided in this article, remain subject to the
obligation to institute an enquiry at the request of a Party to the
conflict, pursuant to the common article quoted above of the four
Conventions. Similarly, all Parties to the Conventions and the
Protocol which recognize the competence of the Commission as laid
down in this article, remain subject, by reason of the same common
article, to the obligation to institute an enquiry at the request of
a Party to the conflict for all violations which do not fall under
the Commission's competence, i.e., for all violations which are not
serious.
3629 Thus there is no change as far as basic obligations are concerned. However, this article common to the four Conventions has
never in fact been applied. The wording is so succinct that the
proceedings can be paralyzed at a procedural level at any time. It is
precisely on this point that the present provision has achieved what
is perhaps a decisive step forward with respect to allegations of
grave breaches or serious violations.
[p.1048] Paragraph 3 -- The constitution of the Chamber of Enquiry
' Sub-paragraph ' (a)
3630 On some points the terms of this sub-paragraph are similar to those of Article 42 of the International Covenant on Civil and
Political Rights which relate to the appointment of an ' ad hoc '
Conciliation Commission. However, it will be noted that the Protocol,
by leaving open the possibility of any other solution which the
Parties concerned may choose in common agreement, remains flexible and susceptible to any other formulation.
3631 The role of the President of the Commission is decisive for the constitution of the Chamber responsible for conducting the enquiry.
Paragraph 6 of Article 90
contains provisions relating directly to
him. The President is called upon to appoint five members of the
Commission to form part of the Chamber "after consultation with the
Parties to the conflict". This expression differs from that used in
the above-mentioned Article 42 of the Covenant, which requires "the
prior consent of the States Parties concerned". Thus it may be
concluded that the President is not formally bound by the opinion of
the Parties that have been consulted. (41) In fact, it would seem
desirable not only that the members of the Chamber are not nationals
of a Party to the conflict, as stated in the text, but that they
belong to neutral countries. (42)
3632 The two ' ad hoc ' members, not nationals of any Party to the conflict, but appointed by these Parties, need not necessarily be
chosen from the members of the Commission. They "represent" the Party
which has appointed them and should contribute to creating an
atmosphere of trust within the Chamber itself. (43)
' Sub-paragraph ' (b)
3633 In time of armed conflict, the time taken by the body responsible for supervising compliance with the applicable rules may be crucial,
not only for the fate of possible victims but also with regard to the
risk of counter-measures being taken by the Party which considers
itself wronged. (44) On this latter point, the procedure provided for
in Article 90
is intended to have a dissuasive effect, [p.1049] and
from the time that a request for an enquiry is presented to the
Commission, there is some degree of urgency. (45) Moreover, the
longer matters drag on, the more difficult it may become to establish
the facts precisely. Thus the President must react immediately to a
request presented to him, and will himself appoint the two ' ad hoc '
members in case the Parties fail to do so, (46) perhaps after
attempting a final consultation with the Parties.
Paragraph 4 -- Conduct of the enquiry
' Sub-paragraph ' (a)
3634 Once the Chamber has been constituted, it invites the Parties to the conflict concerned to assist it and to present evidence. The
above-mentioned Convention on the Elimination of all forms of Racial
Discrimination provides in Article 11 that a State receiving a
communication is to submit written explanations or statements
clarifying the matter to the supervisory body, indicating, where
appropriate, what measures have been taken to remedy the situation.
It is also bound to furnish any relevant supplementary information
when it is requested to do so. It may be admitted that the assistance
of the Protecting Power can be called in a similar manner, if there
is occasion to do so. If the Chamber carries out the investigation
' in loco, ' it is obvious that it should be provided with all the
facilities necessary for this. Ideally it would be assisted by
qualified personnel, in the sense of Article 6
of the Protocol
' (Qualified persons). ' furthermore, model procedures have been
established for this purpose for the organs of the United Nations which have to deal with violations of human rights. (47) Protocol II annexed to the Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons (48) provides, in Article 8
, that the
head of an observation mission of the United Nations must be informed
of the location of minefields in the area where an enquiry is being
held.
[p.1050] ' Sub-paragraphs ' (b) ' and ' (c)
3635 The rules of evidence laid down in these sub-paragraphs tend to confer to the Chamber's activity a quasi-judicial character. (49)
furthermore it should be noted that all "the Parties", which means
the Parties ' concerned ' (see the French text which states "Parties
concernées"), are covered by this provision, while the preceding
sub-paragraph refers only to the Parties to the conflict. The
evidence may implicate either a Party to the conflict which was not
the object of the allegations made, whether or not it accepted the
compulsory competence of the Commission, or a State which is not
Party to the conflict (for example, in the case of internment in a
neutral country).
Paragraph 5 -- Report of the Commission
' Sub-paragraph ' (a)
3636 As regards its wording, this sub-paragraph is similar to Article 13, paragraph 1, of the above-mentioned International Convention on
the Elimination of all forms of Racial Discrimination. Under the
terms of that article the States concerned receive a report
containing the findings of the Commission "on all questions of fact
relevant to the issue between the parties, and containing such
recommendations as it may think proper for the amicable solution of
the dispute". The similarity to the present sub-paragraph is
striking, and it is therefore no longer merely a question of good
offices, as in paragraph 2(c)(ii). This may be interpreted as a first
step towards mediation.
' Sub-paragraph ' (b)
3637 Unlike the corresponding provisions of the conventions on human rights, (50) this sub-paragraph does not determine the period within
which the State accused of violation has to reply to the Chamber's
requests. This question of the period of time is of great importance
as it determines the moment when the Commission will have to expose
publicly the responsibility of the Parties concerned, by publicly
reporting on their shortcomings, if any. Thus the question must be
esolved in the Commission,s own rules, as required under paragraphe
6. Depending on the situation, particularly when there is a danger of
a violent reaction from the Party which considers itself wronged, the
enquiry has to be conducted as rapidly as possible. The reproach of
being far too slow could indeed be made of the analagous procedures
instituted in the context of the human rights conventions.
[p.1051] ' Sub-paragraph ' (c)
3638 The wording of this sub-paragraph has given rise to controversy. For some, "the conclusions reached by a highly qualified
international commission of inquiry would have the same effect as a
sanction, and the incriminated Party would not be able to disregard
them" for fear of public opinion. (51) In fact, there may be a need
for publicity even when no violation has been noted, to remove all
suspicion from the incriminated Party. Other delegations contrasted
the advantages of "discreet diplomacy" (52) to these arguments. Such
discretion could well be considered to be the prerogative of organs
of conciliation. It was clearly this position which finally won the
day, and indeed in the most restrictive form. A proposal aimed at
prohibiting public disclosure, "unless the Parties consent thereto",
was rejected by the Conference. (53) Thus for the Commission to
report its findings publicly there should be a request from all the
Parties to the conflict, not the Parties to which paragraph 4(b) and
(c) and paragraph 5(a) refer. The findings must be understood to mean
the report as a whole, as well as its constitutive elements.
Paragraph 6 -- The Commission's own rules
3639 The Commission can refer, for the purpose of establishing its own rules and before adopting these rules, to models, such as the rules
of supervisory organs under the human rights conventions, provided
that it respects the conditions laid down in the present paragraph
and by the article as a whole, and takes into account the
requirements inherent in situations of armed conflict. The depositary
can also use these rules as an example at the constitutive meeting of
the High Contracting Parties provided for in paragraph 1(a), as long
as this meeting has not adopted its own rules. (54)
3640 Because of the central role of the President (see paragraph 3) the continuity of his function is explicitly referred to, on the one
hand, and the necessity of providing for his replacement when need
be, on the other hand, to ensure that this function is never
exercised by a person who is a national of a Party to the conflict.
In any case, like all members of the Commission, the President should
be a person of the highest calibre and in every respect above
suspicion.
Paragraph 7 -- The Commission's expenses
3641 The original proposals anticipated that the cost of the Commission would be met only by voluntary contributions channelled
through the International [p.1052] Committee of the Red Cross or
through the depositary. (55) As this solution did not really appear
to be satisfactory, it was amended (56) to the formulation of the
present paragraph, which puts forward a clearly improved solution,
although it is still subject to criticism. (57)
3642 In the first place, it is to be hoped that the obligation that every State which makes a declaration of acceptance of the compulsory
competence of the Commission must share in its administrative
expenses will not be such as to discourage it from making this
declaration.
3643 By obliging the Party or Parties to the conflict which request an enquiry, to advance the necessary funds for expenses incurred by a
Chamber, it was hoped to discourage rash demands for enquiries.
However, the obligation for the Party or Parties against which the
allegations have been made to reimburse fifty per cent of the
expenses incurred, is perhaps not very likely either to favour
recognition of the Commission's compulsory competence. In fact, such
reimbursement is due, regardless of whether the allegations and
counterallegations are proved. It is sufficient that they have been
made against one or more States which recognize the compulsory
competence for the reimbursement to be payable. At the very least,
this solution must be said to be defective. However, it is true that
compared with the costs States are willing to incur for armaments and
military expenses in time of armed conflict, these expenses are only
a drop in the ocean.
Conclusion
3644 Article 90
is closely related to Article 1
common to the Conventions and Article 1
of the Protocol ' (General principles and
scope of application), ' which enjoin the Contracting Parties to
respect and to ensure respect for the Conventions and the Protocol in
all circumstances. This article may prove to be useful, despite its
faults. It institutes for the first time in the law of armed conflict
-- and this must be underlined, as all previous efforts failed -- a
permanent non-political and impartial international commission of
enquiry to which the Parties to the conflict can resort at any time.
With regard to the Commission's competence, the text allows the
Contracting Parties to choose between recognizing its compulsory
competence ' a priori ' and an optional acceptance in each case. In
this way it achieves a balance between the two conflicting points of
view which arose during the Conference. It is to be hoped that the
quorum of twenty Parties to the Protocol recognizing the compulsory
competence of the Commission, an essential quorum for it to be
established, will soon be achieved.
' J. de P. '
NOTES (1) [(1) p.1039] See ' Commentary I ', pp. 374-379;
(2) [(2) p.1040] First Convention, Art. 52; Second Convention, Art. 53; Third Convention, Art. 132; Fourth Convention,
Art. 149. This procedure of enquiry should not be confused
with that provided for in Arts. 121, Third Convention, and
131, Fourth Convention, concerning prisoners or internees
killed in special circumstances;
(3) [(3) p.1040] For examples, see J. Pictet, ' Le droit humanitaire et la protection des victimes de la guerre ',
op. cit., pp. 80-81;
(4) [(4) p.1040] See ' CE 1971, Report ', pp. 108-109, paras. 536-550; ' Government replies ', pp. 74-90;
(5) [(5) p.1040] ' CE 1972, Report ', vol. I, p. 181, para. 4.72;
(6) [(6) p.1040] Ibid. For the ICRC position on this subject, see "Action by the ICRC in the Event of Breaches of
International Humanitarian Law", ' IRRC ', March-April
1981, pp. 76-83;
(7) [(7) p.1040] O.R. III, pp. 388-389, CDDH/I/241 and Add.1, and pp. 340-342, CDDH/I/267; for their introduction, O.R.
IX, pp. 189-194, CDDH/I/SR.56;
(8) [(8) p.1040] O.R. III, pp. 342-343, CDDH/I/316; p. 343, CDDH/415; pp. 344-345, CDDH/416;
(9) [(9) p.1040] See O.R. IX, pp. 189-232, CDDH/I/SR.56-58;
(10) [(10) p.1040] See ibid., pp. 420-426, CDDH/I/SR.72; for the different versions presented, see O.R. X, pp. 220-228,
CDDH/405/Rev.1, and for the draft presented in plenary
meeting, ibid., pp. 264-268;
(11) [(11) p.1040] See O.R. VI, p. 341, CDDH/SR.46, and for the debate, pp. 309-328, CDDH/SR.45;
(12) [(12) p.1041] For the efforts made in this field by the United Nations, see the two reports of the Secretary-
General "Questions of methods o fact-finding" (General
Assembly, 21st session, Resolution 2182 of 12
December/1966, Official Documents, supplement No. 16
A/6316)), and Resolution 2329 of 18 December 1967 (ibid.,
22nd session, supplement No. 16 (A/6716)), and B.G.
Ramcharan (ed.), ' International Law and Fact-Finding in
the Field of Human Rights, International Studies in Human
Rights ', The Hague, 1982. See also ' SIM Conference on
Human Rights Fact- Finding, Utrecht 1983, Final Report ',
The Netherlands Institute of Human Rights;
(13) [(13) p.1041] O.R. III, p. 338, CDDH/I/241, and Add.1. Another proposal envisaged a Commission of five members
(ibid., p. 340, CDDH/I/267). By way of comparison, the
International Convention on the Elimination of all Forms
of Racial Discrimination (Art. 8) provides for the
establishment of a Committee consisting of eighteen
experts. This Committee has the task of examining the
reports submitted by the States Parties to the Convention
on the measures they have taken to give effect to this
Convention;
(14) [(14) p.1041] For example, see Art. 8 of the above-mentioned Convention;
(15) [(15) p.1041] In this respect, see the remarks of K.J. Partsch, in M. Bothe, K.J. Partsch and W.A. Solf, op.
cit., p. 542;
16) [(16) p.1041] In this sense, see Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., p.
398, note 51;
(17) [(17) p.1042] The final wording is due to a last minute amendment (O.R. III, p. 344, CDDH/416, and O.R. VI, pp.
322-325, CDDH/SR.45);
(18) [(18) p.1042] For States which accepted ipso facto the competence of the Commission, see infra, para. 2 (a), p.
1044;
(19) [(19) p.1042] See, for example, Art. 30 of the International Covenant on Civil and Political Rights, which relates to the procedure for the election of the
Human Rights Committee;
(20) [(20) p.1043] M Schreiber, "La pratique récente des Nations Unies dans le domaine de la protection des droits
de l'homme", 145 ' Hague Recueil ', 1975/II, p. 334;
(21) [(21) p.1043] O.R. IX, pp. 209-210, CDDH/I/SR.57, para. 16;
(22) [(22) p.1043] International Covenant on Civil and Political Rights, Art. 31;
(23) [(23) p.1043] Cf. O.R. IX, p. 218, CDDH/I/SR.57, para. 63;
(24) [(24) p.1043] In this sense, see M. Bothe, K.J. Partsch, W.A. Solf, op. cit., pp. 542-543. Cf. also para. 2 (a) of
Article 90;
(25) [(25) p.1043] M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 543;
(26) [(26) p.1043] Cf. ibid;
(27) [(27) p.1044] Cf. Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., p. 398;
(28) [(28) p.1044] Accepted in plenary meeting with 43 votes in favour, 13 against, and 33 abstentions (see O.R. VI, p.
325, CDDH/SR.45, para. 79);
(29) [(29) p.1044] On this controversy, see E. Kussbach,"commission internationale d'établissement des
faits", XX-1-2 RDPMDG, 1981, p. 78, at pp. 96-101;
(30) [(30) p.1044] O.R. VI, pp. 313 and 317, CDDH/SR.45, paras. 29 and 48; for the discussion, see ibid., pp. 311-318;
(31) [(31) p.1044] Ibid., p. 324, para. 78;
(32) [(32) p.1044] Such a proposal was contained in the initial amendment CDDH/I/241 (O.R. III, p. 338), but was later
abandoned. See also O.R. IX, p. 205, CDDH/I/SR.56, para.
73;
(33) [(33) p.1045] See O.R. IX, p. 53, CDDH/I/SR.45, para. 45. However, it is perfectly possible to imagine resort to the
Commission to ensure the supervision of hospital zones and
localities from time to time (First Convention, Art. 23
and Annex I, Arts. 8-10) and of hospital and safety zones
and localities (Fourth Convention, Art. 14 and Annex I,
Arts. 8-10) or non-defended localities or demilitarized
zones (Arts. 59 and 60, Protocol I);
(34) [(34) p.1045] E. Kussbach expresses the view that a serious violation (unlike a grave breach) engages the
responsibility of the Party to the conflict without
engaging, at an international level, the responsibility of
the individual ("Commission internationale d'établissement
des faits", op. cit., p. 101. In addition see introduction
to this Section, supra, p. 976, note 11, and commentary
Art. 89, supra, pp. 1033-1034;
(35) [(35) p.1045] See O.R. VI, pp. 341-342, CDDH/SR.46;
(36) [(36) p.1046] Cf. Art. 41 (e) of the Covenant;
(37) [(37) p.1046] In this sense, cf. M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 544;
(38) [(38) p.1046] In this sense, cf. E. Kussbach, "Commission internationale d'établissement des faits", op. cit., p.
102;
(39) [(39) p.1046] Cf. M. Schreiber, op. cit., p. 365. See also B. Graefrath, "Die Untersuchungskommission im
Ergängzungsprotokoll zu den Genfer Abkommen vom
12.8.1949", ' Wissenschaftliche Zeitschrift der Humboldt
Universität zu Berlin ', Ges.-Sprachw. R.XXX (1981) 1, p.
13;
(40) [(40) p.1047] See O.R. VI, pp. 342 and 365, CDDH/SR.46. Moreover, Ch. Rousseau, op. cit., p. 273, specifies that
clauses of this type, because they are by way of an
exception and subject to a restrictive interpretation when
they are included in a treaty;
(41) [(41) p.1048] In this respect, Ph. Bretton remarks that one might think that this is not just an opinion, since it
would be very difficult for the president, who might be
jeopardizing the success of the enquiry, to appoint
someone who did not have the agreement of the Parties
involved in the enquiry, and this obligation of
consultation could well be transformed into a procedure of
a binding opinion, even though, according to the text, the
Parties do not have a power of veto here ("La mise en
oeuvre des Protocoles de Genève de 1977", op. cit., p.
401);
(42) [(42) p.1048] In this sense, see O.R. IX, pp. 208-209, CDDH/I/SR.57, para. 11, and p. 423, CDDH/I/ SR.72, para.
47; see also O.R. VI, p. 376, CDDH/SR.46;
(43) [(43) p.1048] In this sense, cf. E. Kussbach, "commission internationale d'établissement des faits", op. cit., p.
103;
(44) [(44) p.1048] With regard to reprisals, see introduction to this Section, supra, p. 981;
(45) [(45) p.1049] See O.R. IX, p. 65, CDDH/I/SR/46, para. 53; p. 86, CDDH/I/SR.48, para. 12; p. 194, CDDH/I/SR.56, para.
20;
(46) [(46) p.1049] In this respect, see the interesting remarks by Ph. Bretton, "La mise en oeuvre des Protocoles de
Genève de 1977", op. cit., pp. 401-402;
(47) [(47) p.1049] Resolution 1870 (LVI) of the Economic and Social Council, which brought them to the attention of all
organs and agencies of the United Nations concerned with
human rights (cf. M. Schreiber, op. cit., pp. 367 and 377,
note 3); for the text, see B.G. Ramcharan, op. cit., Annex
I and II, pp. 231-248, and "Belgrade minimal rules of
procedure for international human rights fact-finding
missions", ibid., pp. 250-252, and 75 AJIL I, 1981, pp.
163-165 (ILA);
(48) [(48) p.1049] See supra commentary Art. 35, para. 2, p. 402;
(49) [(49) p.1050] In this sense, see Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., p.
402;
(50) [(50) p.1050] Covenant, Art. 41, para. 1 (a), and Convention on the Elimination of all Forms of Racial
Discrimination, Art. 11, para. 1, which provide for a
period of three months;
(51) [(51) p.1051] O.R. IX, p. 40, CDDH/I/SR.44, para. 69, and O.R. VI, p. 384, CDDH/SR.46;
(52) [(52) p.1051] O.R. IX, p. 205, CDDH/I/SR.56, para. 74;
(53) [(53) p.1051] Ibid., p. 425, CDDH/I/SR.72, para. 58;
(54) [(54) p.1051] See supra, p. 1041;
(55) [(55) p.1052] O.R. III, p. 339, CDDH/I/241 and Add.I; p. 342, CDDH/I/267;
(56) [(56) p.1052] Ibid., p. 345, CDDH/I/416;
(57) [(57) p.1052] See M. Bothe, K.J. Partsch and W.A. Solf, op. cit., p. 546, and Ph. Bretton, "La mise en oeuvre des
Protocoles de Genève de 1977", op. cit., p. 403. For the
debate, see O.R. VI, pp. 325-328, CDDH/SR.45;
GVALNWB1/ICRC
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