Strengthening Compliance with IHL: Back to Square One

Between 2012-2015 a series of meetings with states were organised by the ICRC and the Swiss government in the framework of a consultation process aimed at Strengthening Compliance with IHL. This consultation process (discussed here) was based on Resolution 1 of the 31^st International Conference of the Red Cross and Red Crescent (IC), which invited the ICRC to undertake research, consultation and discussion with states in order to identify ways and means to ‘enhance and ensure the effectiveness of mechanisms of compliance with IHL’. During the meetings, consensus appeared to emerge on the possibility to create a new IHL compliance mechanism; a voluntary and non-politicized Meeting of States. This mechanism would provide a forum for dialogue and cooperation among states relating to IHL implementation and could serve as the institutional structure for other elements of a future compliance system, e.g. voluntary periodic reporting and thematic discussions. Unfortunately, states failed to agree on this new mechanism during the 32^nd IC in 2015. Resolution 2 of the Conference therefore recommended that the intergovernmental process be continued in order to seek agreement on the features and functions of a potential forum of states.

The latest meeting of states in the context of this consultation process took place between the 3^rd-5^th December 2018, where states failed to reach consensus on the elements of this new IHL mechanism. States agreed that the ICRC and the Swiss Government will produce a ‘factual report’ on the progress of the inter-governmental process and will present it in the final formal meeting of States in March 2019. After that, the consultation process will be concluded bringing us back to square one. Given these developments, this blog post will discuss the existing compliance mechanisms under the 1949 Geneva Conventions (GCs) and Additional Protocol I (API) and assess their ability to monitor compliance with IHL.

First of all, it should be noted that there are no reporting obligations for states parties to the GCs and API, while meetings of the High Contracting Parties are only provided in API. Such meetings, which can be set up once approved by the majority of states parties to the Protocol, have never been convened. This is unfortunate considering that forums of exchange among states have proven pivotal to the adoption of additional supervisory mechanisms, particularly in the case of treaties with weak systems of compliance. This is the case for the 1980 Convention on Certain Conventional Weapons, which only provided for a Review Conference designed to take place every five years; its Conferences were successful in establishing meetings of the High Contracting Parties and reporting obligations as additional layers of treaty supervision.

The use of Protecting Powers is a mechanism provided both under the GCs and API. A Protecting Power is a neutral state that a belligerent shall appoint subject to the agreement of the other party to the conflict. In case states fail to agree on the appointment of Protecting Powers, the ICRC or any other impartial organisation may act as a substitute. The tasks of the Protecting Powers focus on safeguarding the interests of the belligerents and include liaison functions between the parties to the conflict, relief actions and scrutiny of the application of the GCs and API by the parties to the conflict. According to the 2016 ICRC Commentary (para. 1115), resort to Protecting Powers was limited following the adoption of the 1949 GCs and the mechanism fell into disuse after 1982.

Enquiries into alleged violations of IHL can also be undertaken in the context of two separate and distinct mechanisms. The first one is the enquiry procedure under the 1949 GCs, which shall be undertaken at the request of a party to the conflict. The term ‘at the request of a party to the conflict’ gives the impression that the procedure can be triggered unilaterally. However, a closer look into the relevant articles makes clear that agreement among the states concerned in relation to the set-up, subject-matter and procedure of the enquiry is necessary. Upon failure to reach such agreement, an umpire will be appointed in order to decide on the procedure to follow; however, this appointment is also dependent on the agreement of the parties concerned. An enquiry under the GCs has never taken place, as attempts to activate the procedure were not successful.

The second enquiry mechanism is the International Humanitarian Fact-Finding Commission (IHFFC), which is a permanent body established by article 90 of API that came into force in 1991. As discussed here, the IHFFC is competent to:

• enquire into facts concerning allegations of grave breaches or other serious violations of the GCs and API [art. 90(2) (c) (i)]; and
• offer its ‘good offices’ with the goal of “restoring an attitude of respect for the Conventions and the Protocol.” [art. 90 (2) (c) (ii)].

States are not automatically bound by the IHFFC’s competence by being parties to API; they must recognise it by submitting a declaration. Up to this moment, 77 states provided a declaration under article 90 of API. In the absence of an advance declaration the IHFFC can also undertake an ad hoc enquiry [art. 90 (2) (d)]; this can happen at the request of a party to the conflict and subject to the consent of the other party/parties concerned.

The IHFFC received its first mandate in May 2017 following the signature of a memorandum of understanding with the Organization for Security and Co-operation in Europe (OSCE), which requested the Commission to lead an independent forensic examination in Eastern Ukraine in relation to the death and injury of its staff. This first examination by the IHFFC raises questions relating to its legal basis. Some authors argue that the examination was most probably undertaken pursuant to an ad hoc mandate under article 90 (2) (d) of API. As mentioned above, an ad hoc enquiry has to be requested by a party to the conflict; the OSCE although affected by the incident is not a party to the conflict under IHL. The memorandum of understanding between the OSCE and the IHFFC does not support this interpretation either. Its article 1 states that the IHFFC and the OSCE “shall develop their mutual cooperation with a view to [enabling] assistance to the OSCE including through the use of good offices of the IHFFC […].” Members of the IHFFC reaffirm the use of ‘good offices’ as the legal basis for the forensic examination. Given that the requirements for an enquiry are strict, the use of ‘good offices’ appears to be an easier way to trigger the IHFFC’s competence. Moreover, it is better suited to accommodate agreements with regional organisations, which can lead to an enquiry or other measures.

Following the analysis above, we can reach the following conclusions: with the exception of the IHFFC, the existing IHL supervisory mechanisms appear to be outdated and ill-equipped to monitor compliance with IHL. The meetings of the High Contracting Parties and the enquiry procedure have never been used while the use of Protecting Powers has turned into an obsolete mechanism. Unlike the IHFFC, which expressed its willingness to act in relation to both types of armed conflicts, all other mechanisms are designed for international armed conflicts; this is problematic given that the majority of conflicts taking place today are non-international in nature. Moreover, the existing compliance mechanisms are meant to operate on a consent-based approach. For example, the appointment of Protecting Powers and the undertaking of an enquiry are conditioned on the agreement of the parties to the conflict. This significantly decreases the chance of using these provisions. Securing agreement on the elements and procedure of an enquiry in the context of an armed conflict appears to be a major challenge. Even when the enquiry procedure is regulated in advance, this does not guarantee that states will resort to it. The lack of practice of the IHFFC confirms this statement; it has been used for the first time several decades after it became operative and most importantly not at the request of a state but of the OSCE. States’ hesitation towards enquiries and fact-finding goes beyond the GCs and API, and holds true also for treaties prohibiting means of warfare. In the case of the Ottawa Convention, its article 8 establishes that a fact-finding mission shall be undertaken should further clarification of compliance is requested. Nevertheless, this provision has never been used showing that when matters of compliance arise, states favour bilateral consultations rather than intrusive procedures.

In this direction, the ‘good offices’ of the IHFFC appear to be its most promising competence. Since the IHFFC favours a confidence-building and preventive approach instead of focusing on accountability and given that ‘good offices’ cover a flexible range of available means, states may feel more comfortable to conclude ad hoc agreements with the IHFFC on that basis. At the same time, the IHFFC’s ‘good offices’ provide it with flexibility to offer its services on its own initiative and cooperate with international and regional organisations. This is something that its first mandate and its 2016 report confirm. Given that States do not seem ready to commit to a new IHL monitoring mechanism, the IHFFC and its ‘good offices’ seem to be the most promising avenue-within the context of IHL treaties- in relation to monitoring compliance with IHL. It remains to be seen whether the full potential of this mechanism will materialise. In the meantime, let’s hope that its first mandate will increase the confidence of states toward this mechanism and keep reminding states of their obligations to ‘respect and ensure respect’ for the Conventions in all circumstances.