Photo Credits: STR/AFP/Getty Images
The International Humanitarian Law (IHL) team held a brown bag lunch on Tuesday, October 20, 2015 to discuss the recent U.S. airstrikes on a Doctors Without Borders hospital in Kunduz, Afghanistan. This tragic event has not only triggered conversations on important IHL issues such as legitimate military targets and the protection of civilians, it has also had the interesting consequence of shining a spotlight on a little known international body – the International Humanitarian Fact-Finding Commission (IHFFC).
Despite the information about the attack that has been trickling in over the course of the past few weeks, the lack of concrete and objective facts makes any attempt to reach a definitive conclusion on the international legal implications of the attack a difficult exercise. The Pentagon, a joint U.S.-Afghan team and NATO have each initiated investigations into what actually occurred in Kunduz, although the Pentagon’s self-imposed 30-day deadline to release more details has come and passed in complete silence. Another option, and one advocated by Doctors Without Borders, who has released its own internal review, would be to call the IHFFC to step in.
The IHFFC was created in 1991 for exactly this purpose. Its mandate, under article 90 of the first Additional Protocol of the Geneva Conventions, is to independently investigate violations of IHL. Its fifteen elected members were chosen for their expertise and their high moral standing, and its cooperative approach offers guarantees of fair and thorough fact-finding procedures. The commission’s procedural rules are relatively straightforward. Following a State’s request for an inquiry, based on a belief that a grave breach or a serious violation of IHL has occurred, a seven-member Chamber will examine evidence requested from the parties to the conflict as well as any exterior evidence the Chamber has deemed necessary. The resulting confidential report, and its potential recommendations, will be communicated to the parties – and will be made public only if all parties expressly consent to it.
The IHFFC, however, has never been called upon. Previously it has offered its “good offices”, meaning that it has made itself available, following conflicts involving Russia, Ukraine, Israel and Palestine. In the aftermath of this attack, the IHFFC has formally extended a similar offer to the governments of the United States and Afghanistan, even going so far as to create a draft agenda for its hypothetical investigation. Here’s the hiccup – in order for the IHFFC to launch an investigation, the involved parties need to give their consent, either permanent, or ad hoc. However, neither the United States nor Afghanistan are among the 71 States that have recognized the Commission’s ‘competence’. Doctors Without Borders has launched a petition to call on the United States and the Obama administration to give its consent to an investigation, but its call remains unanswered.
The IHFFC is therefore once again confronted with what appears to be its greatest weakness – it requires nations to agree to investigate their own conduct. Without a history of demonstrated credibility, the IHFFC’s investigative capacity and its guarantee of confidentiality may not be sufficient to incentivize States to participate in this particular mechanism to ensure respect for and implementation of IHL.
So far, international political will to use the Commission has been lacking – with the prospect of increased experience, however, the IHFFC’s commitment to the respect of IHL could be used for the benefit of all. If not the very high-profile case of the Kunduz hospital, which State will be the first to take the plunge?