Will the ‘Sleeping Beauty’ Awaken? The Kunduz Hospital Attack and the International Humanitarian 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 horrific attack on 3 October 2015 on a hospital run by Médecins Sans Frontières (MSF) in Kunduz province, Afghanistan, has turned the world’s attention back to the enduring armed conflict in Afghanistan and the need for full and transparent investigations of incidents that ostensibly violate international humanitarian law (IHL). Following the attack, MSF called on the US to “consent to an independent investigation led by the International Humanitarian Fact-Finding Commission (IHFFC) to establish what happened in Kunduz, how it happened, and why it happened.”

The IHFFC, established by Article 90 of Additional Protocol I (1977) to the Geneva Conventions (AP I), is the only permanent international fact-finding body with a specific mandate to investigate violations of IHL. Its President, Dr. Gisela Perren-Klingler, has confirmed that the Commission is ready to undertake an investigation of the attack. Despite its potential value to promote compliance with IHL, the IHFFC has never been used. Back in 2002, Professor Frits Kalshoven questioned whether the Commission had become a ‘Sleeping Beauty’, suggesting that its disuse was due to its independence and the general reluctance of parties to armed conflicts to have the truth about certain facts exposed.

This incident appears at first sight to provide an eminently suitable opportunity to put the Commission to good use. However, this contribution argues that the distinctive contours of the Commission’s jurisdiction, combined with political factors, mean that it is unlikely to be roused from its fact-finding slumber just yet.

The airstrike on MSF’s hospital in the early hours of 3 October 2015 killed 22 people and injured many others. US and Afghan forces had been made aware of the hospital’s location prior to the attack. During the airstrike, MSF’s frantic calls to those in charge appeared to go unheeded, with the attack continuing, it says, for more than half an hour after the first calls were made. President Obama has called the incident a “terrible, tragic accident”, while the High Commissioner for Human Rights described it as “utterly tragic, inexcusable, and possibly even criminal”. MSF President, Dr. Joanne Liu, went further, stating that MSF was “working on the presumption of a war crime”.

As reported in the New Yorker, statements by US and Afghan officials gave rise to divergent accounts which did not explain several concerning aspects of the incident. The legality of the incident under IHL has been comprehensively analysed by Jonathan Horowitz at Just Security and Milena Sterio at IntLawGrrls, so I will not rehearse their analyses, suffice to say that the prima facie unlawfulness of the attack means that an investigation is in order. According to Article 8(2)(e)(iv) of the Rome Statute, it is a war crime to direct attacks against hospitals, provided that they are not military objectives. The duty to investigate suspected war crimes can be traced back to the grave breaches regime in the Geneva Conventions and is articulated by the ICRC as a rule of customary IHL applicable in international armed conflicts (IACs) and non-international armed conflicts (NIACs). Indeed, the US has accepted that an investigation is necessary, and has established three investigations, including one by the Department of Defense. MSF International President, Dr. Joanne Liu, has rejected internal military investigations as insufficient, and called on the US to consent to an independent investigation by the IHFFC.

MSF states that all that is needed is for “one of the 76 signatory States to sponsor an inquiry”, and has called on the US to consent. Unfortunately, this does not represent the reality of the IHFFC’s jurisdiction. According to Article 90 of AP I, its jurisdiction is triggered in two ways:

• The IHFFC has ‘ongoing’ jurisdiction pursuant to Article 90(2)(a) when a High Contracting Party to AP I declares that it recognises: “in relation to any other High Contracting Party accepting the same obligation, the competence of the Commission to enquire into allegations by such other Party, as authorized by this Article”; and

• The IHFFC has ‘ad hoc’ jurisdiction pursuant to Article 90(2)(d): “In other situations, the Commission shall institute an enquiry at the request of a Party to the conflict only with the consent of the other Party or Parties concerned.”

Unfortunately for those advocating an independent international investigation, neither situation appears to be applicable to the conflict in Afghanistan. The IHFFC has ongoing jurisdiction when allegations are made by a state which has ratified AP I and lodged a declaration, in respect of another state which has also ratified AP I and lodged a declaration. Even if one of the 76 signatory states was willing to ‘sponsor’ an inquiry by raising allegations, neither Afghanistan nor the US have completed the required paperwork. Afghanistan has not lodged an Article 90 Declaration and the US is not even a party to AP I.

Alternatively, the IHFFC has ad hoc jurisdiction when a party to the conflict requests an inquiry and all other parties to the conflict give their consent. It does not appear necessary for those parties to have ratified AP I, due to the choice of language in that provision. However, the involvement of the Taliban evokes a more fundamental barrier to the IHFFC’s jurisdiction: the conflict is non-international in nature. The Commission was borne out of AP I, which only applies in IACs. Moreover, according to Article 90(2)(c)(i), it may investigate grave breaches and other serious violations of “the Conventions and this Protocol”, which excludes Additional Protocol II and customary IHL. Thus, the classification of the conflict could preclude jurisdiction.

The jurisdictional hurdle of IAC could perhaps be satisfied by pointing to facts which “internationalise” the conflict, such as allegations of Pakistan’s covert support of the Taliban. However, it is doubtful whether such support, even if sufficiently proven, would amount to a sufficient level of control over the Taliban’s operations so as to internationalise the conflict under IHL. Another potential internationalising feature could be the involvement of Coalition forces in Afghanistan. Yet, the ability for a NIAC to be transformed into an IAC simply due to the presence of multinational forces remains highly contested. Geiß and Siegrist, for instance, write that a NIAC remains non-international in nature when a multinational force supports another state against armed opposition (p. 14, note 8).

Another possible approach could be to take a more relaxed interpretive approach to jurisdiction, so as to encompass NIACs. Kalshoven observed that “almost from day one” the IHFFC was willing, provided that all parties agreed, to operate in a NIAC, and to apply the entire corpus of IHL. Such an interpretation might be possible by reading the provision for ad hoc jurisdiction broadly, so that the phrase “in other situations” includes NIACs, and is disconnected from the restrictions on applicable law. Proponents might also point to Common Article 3 to the Geneva Conventions (which provides for minimum protections in NIACs) as evidence of NIAC jurisdiction, seeing as the IHFFC can investigate serious violations of the “Conventions” as a whole. Yet the rules on ad hoc jurisdiction and applicable law remain part and parcel of AP I, which as a whole only applies in IACs. There is also a paucity of state practice to support a possible extension to the IHFFC’s jurisdiction on the basis of customary IHL.

While in theory it might be possible for the US and Afghanistan to consent to an extended version of the IHFFC’s jurisdiction, and it may represent a valuable opportunity to activate the IHFFC, the states are well within their rights to refuse to do so on the basis that it is at odds with the face of AP I. If the wording of article 90(2)(d) is to be respected, consent from the Taliban as a ‘Party to the conflict’ would also need to be secured. The foreseeable resistance to that suggestion might indicate the extent to which Article 90 was drafted with inter-state conflict in mind.

An alternative approach which would avoid those jurisdictional hurdles, and which might allay the concerns of MSF, would be for the states to agree to establish an international fact-finding commission composed of well-respected IHL experts, such as those individuals serving as Commissioners of the IHFFC, without invoking the formal credentials of that body. On a practical level, however, consent is unlikely to be forthcoming, possibly because state officials believe that existing investigations are sufficiently robust, but possibly also for the reasons suggested by Professor Kalshoven.