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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- ENQUIRY PROCEDURE
GENERAL OBSERVATIONS AND HISTORICAL SURVEY
There was a provision of the same kind in the Geneva Convention of 1929 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Article 30
). The enquiry procedure [p.604] envisaged left many loopholes and, in 1937, the International Committee had convened a Commission of Experts to revise and develop the text. On the basis of its consultations, the International Committee put before the XVIIth International Red Cross Conference the following text for the First Convention:
. -- PROCEDURE OF ENQUIRY
Independently of the procedure foreseen in Article 9
, any High Contracting Party alleging a violation of the present Convention may demand the opening of an official enquiry.
This enquiry shall be carried out as soon as possible by a Commission instituted for each particular case, and comprising three neutral members selected from a list of qualified persons drawn up by the High Contracting Parties in time of peace, each Party nominating four such persons.
The plaintiff and defendant States shall each appoint one member of the Commission. The third member shall be designated by the other two, and should they disagree, by the President of the Court of International justice or, should the latter be a national of a belligerent State, by the President of the International Committee of the Red Cross.
As soon as the enquiry is closed, the Commission shall report to the Parties concerned on the reality and nature of the alleged facts, and may make appropriate recommendations.
All facilities shall be extended by the High Contracting Parties to the Commission of Enquiry in the fulfilment of its duties. Its members shall enjoy diplomatic privileges and immunities."
The Diplomatic Conference entrusted consideration of this Article to the Joint Committee which adopted the 1929 text with some modifications and decided to introduce it into all four Conventions. The changes proposed by the experts at their conference in 1937 were scarcely taken into account by the Diplomatic Conference.
It should be noted that this Article deals only with violations of a certain degree of seriousness which cause disagreement between the Parties. Indeed, for all other violations the Protecting Power is certainly empowered to make enquiries and transmit the result of those enquiries to the country of origin of the protected persons. In the same way, if internees are wounded or killed by a sentry, by another internee or by any other person, an official enquiry under the terms of Article 131
must be held by the Detaining Power itself. Its results are communicated to the Protecting Power. The field of application of Article 149 is quite restricted, therefore, since by reason [p.605] of the system of supervision laid down in Articles 9
, most of the cases of alleged violations will be dealt with by the supervisory bodies provided for in the Convention itself.
PARAGRAPH 1. -- OPENING OF THE ENQUIRY
An enquiry is obligatory when a Party to the conflict requests it. The Parties concerned, however, must decide on the procedure to be followed in the enquiry. It is therefore probable that when asking for the opening of an enquiry, the Party to the conflict concerned will also propose the methods by which it should be conducted.
On several occasions in this commentary emphasis has been laid on the difficulty in time of war of reaching agreement between belligerent States. The difficulty will be all the greater if the point a issue is a violation alleged to have been committed by one of the belligerents and the opening of an enquiry on its territory. Moreover, it should be pointed out that this Article, which dates back as far as the First 1929 Convention, has never been applied, to the best of the International Committee's knowledge (1).
PARAGRAPH 2. -- ENQUIRY PROCEDURE
This applies to cases where the Parties concerned are unable to agree on the procedure to be followed. They must then agree on the choice of an umpire who will decide on a procedure. Again, agreement between the Parties becomes necessary. If such an agreement proves impossible, the Convention contains no obligatory provision. The most that could be done would be to invoke Resolution No. 1 of the Diplomatic Conference, which recommends that, in the case of a dispute relating to the interpretation or application of the Conventions which cannot be settled by other means, the High Contracting Parties concerned endeavour to agree between themselves to refer such dispute to the International Court of Justice.
In practice, the body which seems the best qualified to carry out the enquiry would quite naturally be the Protecting Power. If necessary, the diplomatic representatives of other neutral States already on the spot and able to act rapidly could also carry out an enquiry.
[p.606] PARAGRAPH 3. -- ACTION TO BE TAKEN ON THE FACTS
As already stated, this can apply only to grave breaches, raising important problems, which it has not been possible to settle in the normal way through the Protecting Power or through the official enquiry carried out by the Detaining Power itself under Article 131
Under the terms of this paragraph, the body carrying out the enquiry must be enabled to discover the facts and therefore, in principle, to travel to the spot and check the facts reported. The Parties to the conflict undertake in this paragraph to put an end to the violation in the case of a permanent or continuous violation of the Convention and to punish those responsible. It should be noted, in this connection, that the obligation is already contained in Articles 146
It would be possible also to set up two separate bodies, one to decide on questions of fact and the other to determine whether or not there has been a breach of the Convention on the basis of those facts. It should be noted, in this connection, that it may in certain circumstances prove extremely difficult to arrive at the facts, since if this enquiry procedure is followed, it means ' a priori ' that the Parties disagree on whether a breach has been committed or not.
Notes: (1) [(1) p.605] An attempt to apply Article 30 of the 1929
Convention was made during the Italo-Abyssinian conflict
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