Side-Event during the 31st International Conference of the Red Cross and Red Crescent
Side-Event during the 31st International Conference of the Red Cross and Red Crescent
Prof. Michael Bothe
"Fact-finding as a Tool of Ensuring Respect for IHL: Current Concerns and Perspectives”
On the occasion of the 31st International Conference of the Red Cross and Red Crescent in Geneva, the International Humanitarian Fact-Finding Commission (hereafter the Commission) was given the opportunity to present its points of view on the role that fact-finding missions can play in situations of armed conflicts along with the practical requirements that are necessary for a successful fact-finding mission.
The current President of the Commission, Prof. Michael Bothe, introduced the topics of discussion while reiterating the major characteristics conferring a particular legitimacy on the Commission and enabling it to carry out its mandate. First of all, it has been set up by virtue of an international treaty and therefore pursues no hidden agenda. Secondly, it is recognized by States from all of the regions of the world, and its members represent a wide range of different areas of expertise and professional experience.
Afterward, in their individual addresses, the panellists proceeded to elaborate on these reflections. Prof. Charles Garraway pointed out the importance of the confidential nature characterizing the work of the Commission which, in his opinion, allowed it to gain access to sensitive information that would be inaccessible to other missions vested with a more politicized nature. Dr. Gisela Perren-Klingler presented the difficulties that fact-finding missions can encounter when gathering testimony from persons who have been traumatized. Prof. Ghalib Djilali analyzed the reasons why the Commission has never received a mandate since its creation and, in particular, underlined that the necessity of consent and recognition of the Commission by each of the parties to the conflict has turned out to be a procedural obstacle to trigger the work of the Commission. Prof. Eric David concluded by sharing his personal experiences in the field, especially during his mission in the Philippines, thanks to which he was able to provide the audience with details of the practical problems that can arise when conducting a fact-finding mission, notably in situations where personal testimonies present diverging versions of what has taken place.
In making their presentations, the members of the Commission composing the Panel all pointed out that fact-finding was a crucial mechanism in the implementation of International Humanitarian Law; that it represented, on top of everything else, a peaceful means of resolving international disputes; and lastly, that the proper conduct of such missions would make it possible to facilitate the return to a situation that favours respect for International Law.
Violations of IHL unfortunately continue to occur in present armed conflict. The responsibility of a party to the conflict for violations of IHL related treaties presupposes however that the violations have actually occurred, i.e. that the facts have been established, responsibilities identified, and thus violations ascertained. This is often a difficult endeavour. The ICRC agrees that enquiry and fact-finding mechanisms are an important tool at disposal of conflict parties to clarify the situation and responsibilities, and to settle disputes arising from allegations of serious violations of the law. They may also favour the return to a situation of respect for IHL.
In its efforts aiming to promote respect for IHL the ICRC has regularly encouraged States and parties to conflict to accept and to resort to the enquiry mechanisms provided for in the Geneva Conventions and Protocols. For example, when assisting States in adhering to IHL treaties the ICRC Advisory Service consistently encourages them to recognize the competence of the IHFFC provided for in Article 90 of AP I 1977.
As known, the ICRC has recently conducted consultations with States on strengthening legal protection for victims of armed conflicts. These consultations showed that a significant number of States consider strengthening international mechanisms for monitoring compliance with IHL a priority.
States recognized that most of the mechanisms provided under IHL have proved to be insufficient so far. They acknowledged in particular that existing procedures for the supervision of parties to armed conflicts – the system of Protecting Powers, the formal enquiry procedure, and the International Humanitarian Fact-Finding Commission- have rarely been used in practice.
Moreover, many States admitted that mechanisms developed outside the ambit of IHL also have limitations and were not developed for implementing this body of law.
Some States insisted on the need to amend existing implementation tools, especially the International Humanitarian Fact-Finding Commission, in order to ensure their proper functioning. Other States considered that different alternative solutions should be explored including the possibility of creating a new mechanism.
Participants to the present International Red Cross and Red Crescent Conference will have the opportunity to discuss this question during the plenary session this afternoon. The debate will be based on the ICRC Report on Strengthening Legal Protection for Victims of Armed Conflicts. This Report emphasizes the need to strengthen international mechanisms for monitoring compliance with IHL.
The ICRC has also submitted a draft resolution aimed at ensuring that further research and discussion among States will continue on this issue in the future and we hope that it will receive large support by States.
