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Commentary - Art. 52. Chapter IX : Repression of abuses and infractions
    [p.374] ARTICLE 52 -- ENQUIRY PROCEDURE


    HISTORICAL INTRODUCTION

    It was in 1929 that a provision similar to the one quoted above was introduced into the Convention. It gave rise at the time to considerable discussion, and the text was only approved by the Diplomatic Conference of 1929 after much hesitation. Many delegates were afraid of opening a door, in the Convention, to possible sanctions against States.
    The provision adopted in 1929 was an important step forward, for there had been no provision of the kind in the previous Conventions of 1906 and 1864 -- nor in the Hague Conventions of 1899 and 1907. Nevertheless, in 1934, at the XVth International Red Cross Conference, it was pointed out that application of the Article would be difficult, as it presupposed agreement between the Parties to the conflict; some practically automatic procedure ought therefore to be provided.
    The Commission of Experts convened in 1937 by the International Committee of the Red Cross to consider the revision of the Geneva Convention, studied the problem in detail. It received the benefit of the opinion of several international jurists, such as MM. A. Hammarskjöld, D. Schindler, J. Basdevant, F. Donker-Curtius and C. Gorgé, and elucidated certain principles which were to be defined in a new Article. Its conclusions were adopted with practically no alteration [p.375] by the XVIth International Red Cross Conference, which met in London in 1938 (1).
    When the International Committee of the Red Cross resumed work on the revision of the Geneva Conventions after the Second World War, these conclusions served as a basis for the proposals put forward. Thus, at the Conference of Government Experts held in Geneva in 1947, the International Committee made the following recommendations:

    "1. That the procedure of enquiry be initiated as rapidly as possible and in a practically automatic fashion.

    2. That the enquiry may be demanded by any Party to the Convention concerned, whether belligerent or neutral.

    3. That a single, central and permanent authority, for which provision is made in advance in the Convention, be entrusted with the nomination of the whole or part of the Commission of Enquiry.

    4. That the Commission of Enquiry be appointed for each particular case, immediately the request is made, following an alleged violation of the Convention.

    5. That the members of the Commission of Enquiry be appointed by the aforesaid authority from lists, kept up-to-date, of qualified and available persons, whose names have been submitted beforehand by Governments.

    6. That special agencies be appointed in advance to undertake, in case of need, any immediate investigation of the facts which may appear necessary.

    7. That the report of the Commission of Enquiry contain, where necessary, not only a record of the facts established, but also recommendations to the Parties concerned."

    The Government Experts were opposed to the idea of setting up a special authority, provided for in advance in the Convention. They preferred that members of the Commission of Enquiry should be appointed by the President of the Hague Court.
    The International Committee, basing itself on the Government Experts' conclusions, submitted the following text to the XVIIth International Red Cross Conference in Stockholm, in 1948:

    "ARTICLE 41 -- INVESTIGATION PROCEDURE

    Independently of the procedure foreseen in Article 9 , any High Contracting Party alleging a violation of the present Convention may demand the opening of an official enquiry.

    [p.376] This enquiry shall be carried out as soon as possible by a Commission instituted for each particular case, and comprising three neutral members selected from a list of qualified persons drawn up by the High Contracting Parties in time of peace, each Party nominating four such persons.

    The plaintiff and defendant States shall each appoint one member of the Commission. The third member shall be designated by the other two and should they disagree, by the President of the Court of International Justice or, should the latter be a national of a belligerent State, by the President of the International Committee of the Red Cross.

    As soon as the enquiry is closed, the Commission shall report to the Parties concerned on the reality and nature of the alleged facts, and may make appropriate recommendations.

    All facilities shall be extended by the High Contracting Parties to the Commission of enquiry in the fulfilment of its duties. Its members shall enjoy diplomatic privileges and immunities."

    The Stockholm Conference only made one slight alteration to the above Article.
    The Diplomatic Conference of 1949 decided from the first to entrust the study of the provision to the so-called Joint Committee, to which all the provisions common to all four Conventions were submitted. The Joint Committee referred the Article to its Special Committee, where it was dealt with by the Working Party responsible for problems concerning the settlement of disputes which might arise in connection with the application of the Conventions.
    There was practically no discussion on the subject. In its report to the Joint Committee, the Special Committee expressed itself in the following terms:

    "The Special Committee considered that Articles 41 and 45 (2) of the Stockholm drafts set up a procedure for recruitment which was too complicated, and that it would be appropriate to revert once more to the provision contained in Article 30 of the Wounded and Sick Convention of 1929 , while defining its terms more clearly.

    In the text submitted by the Special Committee, the initiative for the enquiry procedure belongs to either one of the belligerents and not to all the Contracting Parties. The membership of the Commission of enquiry was determined by agreement between the Parties and not from a previously established list. The enquiry procedure was not closed by a mere recommendation, but by findings which were mandatory for the Parties.

    [p.377] The Special Committee, moreover, decided by 9 votes for, 2 against with 1 abstention, to propose the introduction of the same provision into the Prisoners of War Convention and the Civilians Convention. (3)"

    The Article proposed by the Special Committee was approved, as it stood, by the Joint Committee and the Plenary Assembly without discussion, as was the decision to embody it in all four Conventions.
    The Conference did not feel, therefore, that it could adopt, either as a whole or in part, the conclusions reached by the experts consulted by the International Committee of the Red Cross. That is not very surprising when one realizes the difficulties that any procedure of this kind encounters. War gives such a rude shock to the whole legal system that,if the means by which the rule of law is upheld are too vulnerable, its very authority may be endangered.
    The Delegate of Monaco at the Diplomatic Conference, Professor Paul de La Pradelle, who was Chairman of the Working Party instructed to consider problems relating to disputes which might arise in connection with the Conventions, devoted an interesting chapter to these questions in his recent book. (4) He points out that under the existing text the conclusions of the Commission of Enquiry will be binding, as in the 1929 text. This was not provided for in the Stockholm drafts. On the other hand, he does not mention the fact that no progress was made in regard to the automatic operation of the procedure of enquiry or the choice of those responsible for carrying it out. And that is undoubtedly the greatest obstacle to the application of the present Article.

    PARAGRAPH 1 -- INSTITUTION OF THE ENQUIRY

    This paragraph repeats word for word the first sentence of Article 30 of the 1929 Convention . The wording used makes it clear that the holding of the enquiry is compulsory once one of the belligerents has asked for it. However, according to paragraph 2, the Parties concerned must reach agreement on the actual procedure for the enquiry. It is to be expected that when requesting the institution of an enquiry, [p.378] the Party to the conflict will also suggest the way in which it is to be carried out.
    This provision, which, as we have seen above, already existed in the 1929 Convention, has never to our knowledge been applied. (5) We have already pointed out more than once the difficulty of securing agreement between States in time of war; that difficulty is greatly increased when it is a matter of investigating an offence of which one of them is alleged to have been guilty, and opening that State's frontiers to ad hoc investigators.
    The request of an interested party will doubtless be made through the Protecting Power, as the latter provides the normal channel for such communications in war-time. The introduction into the First Convention of provisions dealing with the activities of Protecting Powers is calculated to facilitate such representations.
    The introduction of the principle of supervision by the Protecting Powers of the application of the Convention may, it is true, reduce the number of cases in which a Party to the conflict requests an enquiry. The Protecting Powers must, under Article 11 , lend their good offices with a view to settling cases of disagreement as to the application of the Convention, and it may be assumed that they will attempt to settle such disputes by conciliation. Violations may, moreover, often be established by the Protecting Power itself, without any special procedure being necessary.
    It is to be hoped that Articles 49 and 50 , whereby States undertake to suppress all breaches of the Convention, will make enquiries unnecessary in the majority of cases. If a State finds that persons depending on it have violated the Convention, it must punish them, whether an enquiry has or has nut been requested by the adverse Party. The institution of an enquiry is therefore only necessary if the violation is contested.

    PARAGRAPH 2 -- ENQUIRY PROCEDURE

    This paragraph is new. It is intended to provide for cases where the Parties to the conflict do not reach agreement on the procedure for the enquiry. But in such cases it is still necessary to agree on the choice [p.379] of an umpire who will decide upon the procedure to be followed. The Article does not say what should be done if the Parties to the conflict do not reach agreement on the appointment of an umpire. The XVIIth International Red Cross Conference had intended to avoid that possible danger by granting certain powers to the President of the Hague Court. It is possible that where agreement is not reached on the choice of an umpire, the dispute might be referred to the Hague Court in accordance with Resolution 1 of the Diplomatic Conference. (6)
    In practice, the agency which seems best qualified to carry out an enquiry is naturally the Power protecting the interests of the State which complains of a violation; diplomatic representatives of other neutral States in a position to act quickly might also take part. In such cases, the efficacity of the procedure depends, of course, upon its speed.

    PARAGRAPH 3 -- ACTION ON FINDINGS

    This paragraph is taken, as it stands, from the 1929 text.
    Breaches of the Convention may be of a permanent or of an occasional nature. It they are permanent -- for instance, if the red cross emblem is placed on a building which is not entitled to protection under the Convention -- the Power responsible must put the matter right. In the example given, the distinctive emblem must be removed. If the case is one of occasional violation, such as the bombardment of a hospital, all possible steps must, of course, be taken to prevent a repetition; but the main sequel to the violation will be the punishment of those guilty, and perhaps reparation for the damage suffered.
    Repression should, of course, be in accordance with the rules laid down in Articles 49 and 50 . In these Articles the Contracting Parties have already undertaken to suppress any violations of the Convention. The idea is thus repeated in the Article under study.
    It follows from paragraph 3 that the Commission of Enquiry which is set up will be competent both to establish facts, and to assess the facts established. There is, however, no reason why, the appointment of two distinct agencies should not be provided for in the special agreement mentioned in paragraph 2: one to establish the facts of the case, and the other to determine whether those facts did or did not constitute a violation of the Convention.


    * (1) [(1) p.375] See ' Conférence diplomatique pour la revision
    et la conclusion d'accords relatifs à 1a Croix-Rouge. --
    Revision de la Convention de Genève du 27 juillet 1929 ',
    Berne, January 1939, pages 51-55 and 83 ff. (Preliminary
    Document No. 2);

    (2) [(1) p.376] The corresponding Article in the draft
    Maritime Warfare Convention;

    (3) [(1) p.377] See ' Final Record of the Diplomatic
    Conference of Geneva, 1949 ', Vol. II-B, pages 119 and
    120;

    (4) [(2) p.377] ' La Conférence diplomatique et les nouvelles
    Conventions de Genève du 12 août 1949 ', Paris, 1951,
    pages 265-284;

    (5) [(1) p.378] An attempt was made to apply Article 30 of the
    1929 Convention during the Italo-Abyssinian War of
    1935-1936;

    (6) [(1) p.379] See above, page 131;