1

“Fact-Finding as a Means of Ensuring Respect for IHL”

Subject: International Humanitarian Law

Submitted to: - Submitted by:-

Mrs. Sugandha Sinha ADHISH PRASAD

Faculty of IHL Roll no: - 904

Semester: - 10th

Session: - 2013-18

ACKNOWLEDGEMENT
 2

I am very thankful to everyone who all supported me for I have completed my project effectively
and moreover on time. I am equally grateful to my International Humanitarian Law faculty: Mrs.
Sugandha Sinha Mam. She gave me moral support and guided me in different matters
regarding the topic. She had been very kind and patient while suggesting me the outlines of this
project and correcting my doubts. I thank her for his overall supports. Last but not the least, I
would like to thank my friends who helped me a lot in gathering different information, collecting
data and guiding me from time to time in making this project despite of their busy schedules
,they gave me different ideas in making this project unique.

Thanking you

ADHISH PRASAD
 3

TABLE OF CONTENTS

1. AIMS & OBJECTIVE………………………….….…………………………...…………4

2. HYPOTHESIS……………………………………….……………..….………………….4

3. SOURCES OF DATA…………………………………………………………………….4

4. RESEARCH METHODOLOGY……………………………………………………..…..4

CHAPTERISATION

i. INTRODUCTION …………………………………………....………….....…..5-9

ii. FACT FINDING-A GENERAL CONCEPT …………….….....……….…....10,11

iii. THE INTERNATIONAL HUMANITARIAN FACT-FINDING

COMMISSION.................................................................................................12-16

iv. THE FIRST INDEPENDENT INVESTIGATION.……........................…......…17

v. CRITICISM & HOW CAN BE THE EFFECTIVENESS OF THE

COMMISSION BE IMPOSED...................................................…………….....18

vi. CONCLUSION.........................……………...........................................……..…19

BIBLIOGRAPHY……………………………………………………………...….………....20
 4

AIMS & OBJECTIVE

Researchers, by doing this project shall find out the,

1. Roll of fact-finding in the IHL

2. Roll of fact-finding commission

HYPOTHESIS

“Fact-finding is not means of ensuring respect for International Humanitarian Law”.

RESEARCH METHODOLOGY

Researcher shall emphasize and use the doctrinal method to prepare this project topic.

SOURCES OF DATA

SECONDARY SOURCES:-

1. Books on IHL
2. Books on ICRC
3. Websites
 5

CHAPTER 1: Introduction

International humanitarian law (IHL) is the law that regulates the conduct of war (jus in
bello). It is that branch of international law which seeks to limit the effects of armed conflict by
protecting persons who are not participating in hostilities, and by restricting and regulating the
means and methods of warfare available to combatants.

IHL is inspired by considerations of humanity and the mitigation of human suffering. "It
comprises a set of rules, established by treaty or custom, that seeks to protect persons and
property/objects that are (or may be) affected by armed conflict and limits the rights of parties to
a conflict to use methods and means of warfare of their choice". 1 It includes "the Geneva
Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary
international law". 2 It defines the conduct and responsibilities of belligerent nations, neutral
nations, and individuals engaged in warfare, in relation to each other and to protected persons,
usually meaning non-combatants. It is designed to balance humanitarian concerns and military
necessity, and subjects warfare to the rule of law by limiting its destructive effect and mitigating
human suffering.3

Serious violations of international humanitarian law are called war crimes. International
humanitarian law, jus in bello, regulates the conduct of forces when engaged in war or armed
conflict. It is distinct from jus ad bellum which regulates the conduct of engaging in war or
armed conflict and includes crimes against peace and of war of aggression. Together the jus in
bello and jus ad bellum comprise the two strands of the laws of war governing all aspects of
international armed conflicts.

The law is mandatory for nations bound by the appropriate treaties. There are also other
customary unwritten rules of war, many of which were explored at the Nuremberg War Trials.
By extension, they also define both the permissive rights of these powers as well
as prohibitions on their conduct when dealing with irregular forces and non-signatories.

1
GSDRC (2013). International legal frameworks for humanitarian action: Topic guide. Birmingham, UK: GSDRC,
University of Birmingham http://www.gsdrc.org/go/topic-guides/ilfha, Retrieved on 28/04/2018 at 11:11AM
2
ICRCWhat is international humanitarian law?
3
GSDRC (2013). International legal frameworks for humanitarian action: Topic guide. Birmingham, UK: GSDRC,
University of Birmingham http://www.gsdrc.org/go/topic-guides/ilfha, Retrieved on 28/04/2018 at 11:15AM
 6

International humanitarian law operates on a strict division between rules applicable in

international armed conflict and internal armed conflict. This dichotomy is widely criticized.4

The relationship between international human rights law and international humanitarian law is
disputed among international law scholars. This discussion forms part of a larger discussion on
fragmentation of international law.5 While pluralist scholars conceive international human rights
law as being distinct from international humanitarian law, proponents of the constitutionalist
approach regard the latter as a subset of the former6 In a nutshell, those who favor separate, self-
contained regimes emphasize the differences in applicability; international humanitarian law
applies only during armed conflict. On the other hand, a more systemic perspective explains that
international humanitarian law represents a function of international human rights law; it
includes general norms that apply to everyone at all time as well as specialized norms which
apply to certain situations such as armed conflict and military occupation (i.e., IHL) or to certain
groups of people including refugees (e.g., the 1951 Refugee Convention), children (the
1989 Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva
Convention).

Humanitarian norms in history

Even in the midst of the carnage of history, however, there have been frequent expressions and
invocation of humanitarian norms for the protection of the victims of armed conflicts: the
wounded, the sick and the shipwrecked. These date back to ancient times.7

In the Old Testament, the King of Israel prevents the slaying of the captured, following the
prophet Elisha's admonition to spare enemy prisoners. In answer to a question from the King,
Elisha said, "You shall not slay them. Would you slay those whom you have taken captive with

4
Stewart, James (30 June 2003). "Towards a Single Definition of Armed Conflict in International Humanitarian
Law". International Review of the Red Cross. 850: 313–350.
5
Koskenniemi, Marti (September 2002). "Fragmentation of International Law? Postmodern Anxieties". Leiden
Journal of International Law. 15 (3): 553–579.
6
Yun, Seira (2014). "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General Human
Rights Law – The Case of the Optional Protocol to the Convention on the Rights of the Child". Journal of
International Humanitarian Legal Studies. 5 (1-2): 213–257.
7
Bernhardt, Rudolf (1992). Encyclopedia of public international law. Volume 2. Amsterdam: North-Holland.
pp. 933–936.
 7

your sword and with your bow? Set bread and water before them, that they may eat and drink
and go to their master."8

In ancient India there are records (the Laws of Manu, for example) describing the types of
weapons that should not be used: "When he fights with his foes in battle, let him not strike with
weapons concealed (in wood), nor with (such as are) barbed, poisoned, or the points of which are
blazing with fire."9 There is also the command not to strike a eunuch nor the enemy "who folds
his hands in supplication ... Nor one who sleeps, nor one who has lost his coat of mail, nor one
who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight."10

Islamic law states that "non-combatants who did not take part in fighting such as women,
children, monks and hermits, the aged, blind, and insane" were not to be molested.11 The first
Caliph, Abu Bakr, proclaimed, "Do not mutilate. Do not kill little children or old men or women.
Do not cut off the heads of palm trees or burn them. Do not cut down fruit trees. Do not slaughter
livestock except for food."12 Islamic jurists have held that a prisoner should not be killed, as he
"cannot be held responsible for mere acts of belligerency".13

Islamic law did not spare all non-combatants, however. In the case of those who refused to
convert to Islam, or to pay an alternative tax, Muslims "were allowed in principle to kill any one
of them, combatants or non combatants, provided they were not killed treacherously and with
mutilation".14

8
II Kings 6:21-23
9
The Laws of Manu VII.90
10
The Laws of Manu VII.91-92 See also, Singh, Nagendra: "Armed conflicts and humanitarian laws of ancient India,"
in C. Swinarski (1985). Studies and Essays on International Humanitarian Law and Red Cross Principles. The Hague:
Kluwer Law International. pp. 531–536.
11
Khadduri, Majid (2006). War And Peace in the Law of Islam. New York, NY: Lawbook Exchange. ISBN 1-58477-
695-1.pp. 103–4.
12
Hashmi, Sohail H. (2002). Islamic political ethics: civil society, pluralism, and conflict. Princeton, N.J: Princeton
University Press.
13
McCoubrey, Hilaire (1999). International Humanitarian Law. Aldershot, UK: Ashgate Publishing.
14
Khadduri, Majid (2006). War And Peace in the Law of Islam. New York, NY: Lawbook Exchange. ISBN 1-58477-
695-1.pp. 105–106.
 8

Basic rules of IHL

1. Persons who are hors de combat (outside of combat), and those who are not taking part in
hostilities in situation of armed conflict (e.g., neutral nationals), shall be protected in all
circumstances.

2. The wounded and the sick shall be cared for and protected by the party to the conflict
which has them in its power. The emblem of the "Red Cross", or of the "Red Crescent,"
shall be required to be respected as the sign of protection.

3. Captured persons must be protected against acts of violence and reprisals. They shall
have the right to correspond with their families and to receive relief.

4. No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or

punishment.

5. Parties to a conflict do not have an unlimited choice of methods and means of warfare.

6. Parties to a conflict shall at all times distinguish between combatants and non-
combatants. Attacks shall be directed solely against legitimate military targets.15

15
de Preux (1988). Basic rules of the Geneva Conventions and their Additional Protocols, 2nd edition. Geneva: ICRC.
p. 1.
 9

Examples
Well-known examples of such rules include the prohibition on
attacking doctors or ambulances displaying a red cross. It is also prohibited to fire at a person or
vehicle bearing a white flag, since that, being considered the flag of truce, indicates an intent to
surrender or a desire to communicate. In either case, the persons protected by the Red Cross or
the white flag are expected to maintain neutrality, and may not engage in warlike acts
themselves; engaging in war activities under a white flag or a red cross is itself a violation of the
laws of war.

These examples of the laws of war address:

 declarations of war;
 acceptance of surrender;
 the treatment of prisoners of war;
 the avoidance of atrocities;
 the prohibition on deliberately attacking non-combatants; and
 the prohibition of certain inhumane weapons.

It is a violation of the laws of war to engage in combat without meeting certain requirements,
among them the wearing of a distinctive uniform or other easily identifiable badge, and the
carrying of weapons openly. Impersonating soldiers of the other side by wearing the enemy's
uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking
of hostages.
 10

CHAPTER 2: Fact-Finding – A General Concept

Fact-finding plays a major role in today’s international relations, but not only in international
relations. In many contexts, it is an important element of procedures serving to secure
compliance and/or to settle disputes. For uncertainty about facts, diverging claims about what
“really happened” often constitutes a substantial part of a dispute. Certainty about actual facts
often is a first step in ensuring compliance with an obligation. This is true for many types of
disputes, be they of a social, political or legal character. But as the contexts differ, the function of
ascertaining facts (commonly called “fact-finding”) varies, and so do the rules governing the
process of ascertaining facts.
This paper tries to elaborate some specific characteristics of ascertaining facts in international
relations and in particular in the framework of procedures designed to ensure a better
implementation and respect of international humanitarian law. In order to do this and to put some
order into the multiplicity of procedures which can be observed, an abstract framework of
analysis is proposed.
On a relatively high level of abstraction, it is possible to describe the course of fact-finding
procedures by a common scheme.16

Step1. Initiation (suspicion/unilateral claim, routine)

Step2. Determination of a mandate
Step3. Taking evidence (problem of access and reliability)
Step4. Evaluating evidence
Step5. Statement of facts (report, judgment)
Step6. Reaction

This general scheme is helpful as a framework of comparative analysis. As already indicated,

procedures for ascertaining facts serve different purposes. This can be seen in each of these
procedural steps. Both the actors and the rules governing the process vary according to the
context.

16
various steps of the procedure described by Sylvain Vité, Les procedures internationales d’établissement des
faits dans la mise en oeuvre du droit international humanitaire, 1999, pp. 187 et seq.
 11

What matters most is, of course, the last phase, or the end result. It is directly related to the
ultimate purpose or function of the procedure. Why fact-finding? Any fact-finding procedure is
undertaken with a view to measures which might be taken as a result of it, or with a view to a
certain effect produced by it. This is what motivates relevant actors to initiate fact-finding
procedures. It sets the agenda of various actors. Furthermore, the intended result also determines
the design of the various phases of the procedure.
This applies to very different procedural forms of “fact-finding”. Fact-finding in a narrow sense,
also called “inquiry”, may constitute a specific separate or selfcontained procedure. But it serves
nevertheless a purpose beyond that procedure, mostly the settlement of a dispute or the creation
of trust in another actor’s behavior (confidence-building). Where fact-finding is used within the
context of measures taken to monitor and ensure compliance with a treaty regime (so-called
“verification”, in particular within the framework of arms control and disarmament regimes) its
purpose is to detect violations, deter violations and to create confidence. The structures of the
relevant procedures are geared to that purpose.17

Fact-finding – actors, institutions and functions

There are essentially four different types of institutions or bodies engaged in ascertaining facts:
States, organs established in common by two or more States, inter- governmental organisations
(or specific organs of these organisations) and non-governmental organisations. In some cases,
individuals may also undertake fact-finding without being an organ of one of these four types of
entities. Fact finding by intergovernmental institutions may include permanent international
organizations (e.g. the United Nations) and treaty-based organs (e.g. the IHFFC18). The ICRC is
a particular institution having inter alia fact-finding functions.

Before or within these bodies or institutions, fact-finding procedures relating to facts which are
of international legal relevance may be initiated by various actors and may be pursued in various
ways.19

17 Heider, Huma. "International Legal Framework for Humanitarian Action". GSDRC/ DFiD, Retrieved on
28/04/2018 at 11:11PM
18
The rule of law and transitional justice in conflict and post-conflict societies, Report of the Secretary-General,
UN Doc. S/2004/616; see also the statement of the Secretary-General before the Security Council on September
24, 2003, S/PV.4833, p. 3.
19
http://www.icrc.org/ihl.nsf/full/195, Retrieved on 28/04/2018 at 10:11PM
 12

CHAPTER 3: The International Humanitarian Fact-Finding

Commission

On 31 May 1977, just one week before the adoption of the two Protocols Additional to the
Geneva Conventions of 1949, the Plenary Meeting of the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts adopted a long text on the creation of a new, permanent instrument for the promotion
and enforcement of international humanitarian law (or IHL). Included in Protocol I, the text
became Article 90, and the instrument was styled the International Fact- Finding Commission.20

In an effort to secure the guarantees accorded to the victims of armed conflict, Article 90 of the
Protocol I Additional to the Geneva Conventions of 1949 (Protocol I) provides for the
establishment of an International Fact-Finding Commission. The Commission was officially
constituted in 1991 and is a permanent body whose primary purpose is to investigate allegations
of grave breaches and other serious violations of international humanitarian law. As such, the
Commission is an important means of ensuring that international humanitarian law is both
applied and implemented during armed conflict

The composition of the Commission

The Commission is composed of 15 individuals elected by those States that have recognized its
competence. Commission members act in a personal capacity and do not represent the States of
which they are nationals. Each member must be of high moral standing and established
impartiality. Elections take place every five years and States have an obligation to ensure that all
regions of the world are fairly represented.

The powers and functioning of the Commission

The Commission is competent to:
a) enquire into any facts alleged to be a grave breach or other serious violation of the Geneva
Conventions or Protocol I;

20
https://www.icrc.org/eng/assets/files/other/frits_kalshoven_2.pdf, Retrieved on 29/04/2018 at 10:11PM
 13

b) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions
and Protocol I. The principal task of the Commission is to enquire into facts. It investigates only
whether or not a grave breach or other serious violation of the Geneva Conventions or Protocol I
has in fact occurred.

The Commission is an investigative body and not a court or other judicial body: it does not hand
down judgments or address questions of law in relation to the facts it has established. Its enquiry
must involve grave breaches or other serious violations of the above-mentioned treaties.
Consequently, it does not enquire into minor violations.

The Commission is also authorized to facilitate, through its good offices, an attitude of respect
for the Conventions and their Protocol I. Generally, this means that it may, in addition to
communicating its conclusions as to the facts, make observations and suggestions to promote
compliance with the treaties on the part of the warring parties.

Though the Geneva Conventions and Protocol I are applicable only to international armed
conflicts, the Commission has expressed its willingness to enquire into alleged violations of
humanitarian law arising from non-international armed conflicts, provided that the parties
involved consent to this.

A Commission enquiry
In order for the Commission to begin an enquiry there must be a request for it to do so. Only
States that have recognized the Commission’s competence are entitled to make such a request,
and may do so regardless of whether they are themselves involved in the conflict concerned.
Private individuals, organizations, or other representative bodies do not have such authority, nor
does the Commission have the power to act upon its own initiative.

Enquiries are generally not conducted by the Commission as a whole. Unless otherwise agreed,
they are conducted by a seven-member Chamber consisting of five members of the Commission
itself plus two ad hoc appointees. Each party to the conflict nominates one ad hoc member, but
no member of the Chamber may be a national of a party
to the conflict.
 14

During the course of the investigation, the warring parties are invited to assist the Chamber and
are given an opportunity to present and challenge evidence. In addition, the Chamber is
authorized to conduct its own investigations. All evidence is disclosed to the parties and to any
other States that may be concerned, all of whom have the right to make observations.21

Report of the Commission

The Commission submits a report to the parties, based upon the findings of the Chamber. The
report contains the Commission's findings regarding the facts, together with any
recommendations. The Commission does not disclose its conclusions publicly unless requested
to do so by all parties to the conflict.

Recognizing the Commission's competence

One of the most important characteristics of the Commission is that it may conduct an
investigation only with the consent of the parties involved. A State does not automatically
recognize the Commission's competence by signing or ratifying Protocol I, but only by
separately affirming that recognition. A State may make a comprehensive declaration, thereby
permanently recognizing the Commission's competence, or it may consent to the investigation of
a particular dispute.

1) Comprehensive declaration
A comprehensive declaration can be made when signing, ratifying, or acceding to Protocol I, or
at any subsequent time. By making such a declaration, a State authorizes the Commission to
enquire into any conflict that may arise between itself and another State that has made the same
declaration. No additional approval is then required for the Commission to act. It goes without
saying that by accepting the Commission's competence, a State obtains the right to request an
enquiry regarding conflicts between States that have likewise accepted that competence,
regardless of whether it is itself involved in the conflict.

21
Report of the Secretary-General on methods of fact-finding, supra n. 7, paras. 42 et seq.; Permanent court of
Arbitration, Annual Report 2004, p. 49.
 15

2) Form of a comprehensive declaration

While there is no standard form, theState must unambiguouslyannounce that it recognizes the
competence of the International Fact-Finding Commission as set outin Article 90 of Additional
Protocol I to the Geneva Conventions of 1949.The declaration must be submitted to the
depository, i.e. the Swiss Confederation. Both the Swiss government and the ICRC Advisory
Service on International Humanitarian Law have drafted model declarations of recognition,
which States are free to make use of.

3) Ad hoc consent
A party to an armed conflict that has not made a comprehensive declaration may accept the
Commission's competence on a temporary basis, that acceptance being limited to the specific
conflict in which it is involved. This form of recognition does not constitute permanent
acceptance of the Commission's competence.
Any party to a conflict may ask the Commission to conduct an enquiry. If a party which has not
given its consent is the object of a complaint, the Commission will convey the allegation to that
party and ask it to consent to an enquiry. If consent is refused, the Commission is not authorized
to conduct an enquiry. If consent is granted, the enquiry procedure will begin.
In a conflict involving parties that have not made the comprehensive declaration, a warring party
will not be bound by a previous consent: it is up to that State to decide whether to reaffirm the
Commission's competence should it become the object of a complaint. Obviously, the request for
an enquiry must come from a State that has also recognized the Commission's authority.

Financing the Commission's activities

The administrative expenses of the Commission are covered by the States that have recognized
the Commission's competence in advance, and by voluntary contributions.
Expenses arising from a Chamber (i.e. an enquiry) are borne by the parties involved: the party
requesting an enquiry must advance the necessary funds to cover the Chamber’s expenses, but up
to half of this advance will be reimbursed by the party that is the object of the enquiry. However,
the Commission has indicated that there is considerable scope for flexibility in financing
enquiries, other financial arrangements being possible by
agreement of the parties.22

22 https://books.google.co.in, Retrieved on 28/04/2018

 16

Ensuring respect for international humanitarian law

The States party to the Geneva Conventions of 1949 and to Protocol I undertake to "respect" and
"ensure respect" for the provisions of those treaties. The International Fact- Finding Commission
is a key mechanism in achieving those objectives.
By recognizing the Commission's competence, on a permanent or ad hoc basis, a State
contributes significantly to the implementation of international humanitarian law and to ensuring
compliance with it during armed conflict. By depositing a declaration of recognition, a State
therefore takes an important step in securing the fundamental guarantees laid down for the
victims of armed conflict.23

EXAMPLE
In 2015, the International Humanitarian Fact-Finding Commission (the Commission) received a
great deal of attention after Médecins Sans Frontières (MSF) called for an independent
investigation following the destruction of its trauma centre in Kunduz by U.S. airstrikes. The
BBC and The New York Times mentioned the possibility of an enquiry by the Commission. In
a blog post at the time, Catherine Harwood wondered whether the ‘Sleeping Beauty’—an
expression first coined by Professor Frits Kalshoven to describe Commission’s lack of activity
since its creation—would awake soon.
Despite this attention, there was no investigation carried out by the Commission. Indeed, it
offered its services to the concerned parties, but was unable to act due to a lack of consent.

Two years later, in May 2017, it was announced on the Commission’s website that it would, for
the first time, lead an independent forensic investigation in Ukraine, following the explosion of
an Organization for Security and Cooperation in Europe’s (OSCE) vehicle. The Executive
Summary of the report of the investigation was published last September. So, has the ‘Sleeping
Beauty’ awoken? And why has this first investigation received so little attention?

To answer this, we will, after briefly introducing the Commission, review the facts of the case
that led to the 2017 investigation, discuss the legal basis for the investigation and consider the
role that the Commission can play in implementing IHL.

23
https://www.eda.admin.ch/eda/en/home/foreign-policy/international-law/international-humanitarian-
law/humanitarian-fact-finding-commission.html, Retrieved on 28/04/2018.
 17

CHAPTER 4: The First Independent Investigation

The facts of the Investigation
On 23 April 2017, an explosion occurred in Pryshy, a rebel-controlled area in Eastern Ukraine in
the Luhansk Province, severely damaging an armoured vehicle. The vehicle—from the OSCE’s
Special Monitoring Mission (SMM)—was carrying three people undertaking a routine patrol.
The blast killed a paramedic and injured the two others in the vehicle. The Security Service of
Ukraine immediately opened a criminal investigation into the incident and the general
prosecutor’s office treated the event as a terrorist act. There was, however, very little mention of
the incident in international news.

On 18 May 2017, the Secretary General of the OSCE and the President of the Commission
signed a memorandum of understanding for the Commission to lead an independent
investigation. In the agreement that followed, the two organisations approved the launch of an
investigation to establish the facts through conducting a post-blast scene forensic and technical
assessment within the framework of IHL. Following the OSCE’s request, an Independent
Forensic Investigation (IFI) was assembled and deployed by the Commission. The Vice-
President of the Commission, Ambassador Alfredo Labbé, led the investigation team.

An Executive Summary of the Report of the IFI, was released to the public on 7 September 2017.
The full details of the report, however, were made available only to the Permanent Council of the
OSCE and the OSCE Secretary General. Given the gap in time between when the incident
occurred and when the site inspection took place, there was loss of evidence. The IFI, however,
has been able to establish with reasonable probability

The investigation team concluded that the anti-tank mine was not specifically aimed at that
particular vehicle. This was determined because the road was not on the SMM’s usual route and
the patrol was unplanned. Moreover, there was little opportunity to lay mines immediately before
the patrol, given that the road was used frequently by other vehicles as well. Nonetheless, the
report considered any laying of anti-vehicle mines on that road as a violation of IHL because of
the potentially indiscriminate damage caused by these weapons.24

24
https://www.cambridge.org/core/international-humanitarian-factfinding-commission, Retrieved on 29/04/2018
 18

CHAPTER 5: Criticism & How can the effectiveness of the

Commission be improved?
The Commission has huge potential. However, until recently, it has never had the chance to
demonstrate its capabilities. There are a number of possible reasons for this. First, there has been
a lack of political will from States. States have not been inclined to trigger the Commission for
specific cases and have been reluctant to have certain facts and potential violations of IHL
exposed. Even in the OSCE case, it is striking that the investigation was not initiated by a State.

A second possible reason for the Commission’s latency is its independence. While it is its
independence that protects it from undue influence, it also means that it is not part of the Red
Cross and Red Crescent Movement or the United Nations system. Thus, it does not have the
support of a large organisation while carrying out its mandate and it only has a very limited
power of initiative.
Finally, the lack of awareness of the Commission is detrimental to its work. For instance, States
might not see that its functioning is very different from other mechanisms, such as Commissions
of Inquiry regularly set up by the UN Human Rights Council (e.g., the Commission’s findings
are not public, unless otherwise agreed by the parties). And even if the Commission’s mandate is
well known to States, they may have less incentive to engage with the Commission when they
already are involved in other enquiries taken up by human rights’ commissions.25

There are ways to acknowledge these very real concerns and still move forward. Competence-
wise, Article 90 API does not prohibit the Commission to make suggestions to international
bodies to use its competences in specific situations. Even if the Commission does not have the
right of initiative, its Rules of Procedure explicitly state in the preamble that it can ‘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’. Moreover, nothing in the text of Article 90 API prevents the Commission from
gathering and analysing information and allegations on specific incidents that could lead to IHL
violations, with the possibility of approaching the relevant States and calling upon their consent
to start an enquiry.
25
http://blogs.icrc.org/law-and-policy/the-independent-humanitarian-fact-finding-commission-has-the-sleeping-
beauty-awoken, Retrieved on 29/04/2018.
 19

CHAPTER 6: CONCLUSION

After going through various books, online materials and other data sources, the researcher have
concluded that, his hypothesis is not true, i.e. “Fact-finding is not means of ensuring respect for
International Humanitarian Law”.

The ways and means to ensure respect of international humanitarian law are diverse. Various
actors play various roles on this scene. There are various actors representing the “public”
interest, the international community. First, there is the ICRC, impartial, experienced, of hi gh
moral standing, mostly using a diplomatic approach. There are public prosecutors, albeit not in
all cases, depending on details of the rules concerning jurisdiction. There is the Security
Council, powerful, sometimes high-handed, and sometimes inefficient. There are the victims,
having more and more access to remedies. However, a decentralised procedure being to a
larger extent in the hands of the States directly concerned has a necessary function in this
complex mix of procedures. This, it is submitted, is provided by the International
Humanitarian Fact-finding Commission.
 20

BIBLIOGRAPHY

 SECONDARY SOURCE: -

BOOKS: -

 Bernhardt, Rudolf, Encyclopedia of public international law. Volume 2. Amsterdam:

North-Holland, (1992)

 The Laws of Manu VII.91-92

 Khadduri, Majid, War And Peace in the Law of Islam. New York, NY: Lawbook
Exchange, (2006)

 Hashmi, Sohail H, Islamic political ethics: civil society, pluralism, and conflict.
Princeton, N.J: Princeton University Press, (2002)

 McCoubrey, Hilaire, International Humanitarian Law. Aldershot, UK: Ashgate

Publishing, (1999)

 Khadduri, Majid, War And Peace in the Law of Islam. New York, NY: Lawbook
Exchange, (2006)

 De Preux ,Basic rules of the Geneva Conventions and their Additional Protocols, 2nd
edition. Geneva, ICRC. p. (1988)

ONLINE SOURCES-
 http://www.gsdrc.org/go/topic-guides/ilfha
 http://www.icrc.org/ihl.nsf/full/195,
 https://www.eda.admin.ch/eda/en/home/foreign-policy/international-law/international-
humanitarian-law/humanitarian-fact-finding-commission.html
 https://www.cambridge.org/core/international-humanitarian-factfinding-commission
 http://blogs.icrc.org/law-and-policy/the-independent-humanitarian-fact-finding-
commission-has-the-sleeping-beauty-awoken
 http://www.ushmm.org/
 https://books.google.co.in
21