The Kunduz Hospital Attack: The Existence of a Fact-Finding Commission

Editors Note: Following the attack earlier this month in Kunduz on a hospital run by Médecins Sans Frontières, we  are  today posting two articles on the potential role of the International Humanitarian Fact-Finding Commission (IHFFC) in any investigation. The two posts, the first by Ove Bring (Professor Emeritus of International Law at Stockholm University & Swedish National Defence University, and former member of the IHFFC) and the second by Catherine Harwood (Ph.D. Researcher at the Grotius Centre for International Legal Studies at Leiden University), present different views on the debate regarding the IHFFC’s role.

The accidental bombing of the hospital in Kunduz, Afghanistan, on 3 October 2015, epitomizes the need for fact-finding with regard to possible violations of the international humanitarian law of armed conflict (IHL). President Obama has ordered a national investigation, but from the perspective of IHL an international process of fact-finding would be a more credible and impartial option. Since 1992, the 1977 First Additional Protocol to the Geneva Conventions of 1949 (the Protocol) has established an International Humanitarian Fact-Finding Commission (IHFFC, Commission). The Commission has been contacted by Médecins Sans Frontières (MSF, Doctors Without Borders) in the Kunduz matter (see news reports here). The Secretariat of the Commission, seated in Berne, Switzerland, has reported on the Commission website that it has taken appropriate steps and is in contact with MSF, but cannot give any further information at the present stage.

The Protocol aims at increasing the protection of civilians in international armed conflicts and improving the implementation of IHL. Article 90 of the Protocol lays down the competence and procedure for the IHFFC, which became operational following acceptance of its competence by 20 States Parties to the Protocol. This group of states, parties to the Commission, has since, at five-year intervals, elected the prescribed 15 members of the Commission. Such members should be of “high moral standing and acknowledged impartiality”. They serve in their personal capacity for five-year terms. A list of the current members is available on the IHFFC website.

So far, 76 states have accepted the Commission´s competence and thus become parties to it. The number includes several major military powers and several states that have been involved in armed conflicts. They are from all parts of the world.

The IHFFC is competent to enquire into any facts alleged to be grave breaches or other serious violations of IHL. The general rule is that enquiries will be conducted in relation to states that have accepted the competence of the Commission beforehand. In addition, at the request of a party to the conflict, with the consent of other parties concerned, the Commission may act in other situations pursuant to Article 90(2)(d) of the Protocol. In that context, the Commission has expressed its willingness to investigate violations of IHL not only in international conflicts, but also in non-international conflicts, provided the parties involved so agree, pursuant to Article 90(2)(d) of the Protocol as interpreted by the Commission.

Although the Commission has been operative since 1992, it has never been used in practice. There could be many reasons for this. One may be a lack of knowledge about the existence of the Commission.

Another may be the fact that sovereign states are afraid of being “named and shamed” due to their conduct. But pursuant to Article 90(5)(c) of the Protocol, the IHFFC shall not report its findings publicly, unless all the parties to the conflict agree. The Commission is an investigative body and not a court or other judicial body: it does not hand down judgements or address questions of law in relation to the facts it has established. As an investigative body, it discloses all evidence which the parties have the right to comment upon and challenge. An enquiry must involve grave breaches or other serious violations of the law. Consequently, the IHFFC does not enquire into minor violations.

The Commission reflects the humanitarian and non-political character of the law for the protection of the victims of armed conflicts. It is a permanent body available to the international community whenever needed. It has a flexible mandate and is also competent to facilitate, through its good offices, the restoration of compliance with the law in question. It is time to increase the awareness of this constructive option in international relations.