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Commentary - International Fact-Finding Commission
    [p.1037] Article 90 -- International Fact-Finding Commission


    [p.1039] 3600 Proposals had already been put forward in 1949 aimed at automatically setting into motion a procedure of enquiry in the case of a breach of the Conventions. However, after lengthy discussion, (1) it had finally been necessary to abandon [p.1040] these efforts and settle for the brief provision contained in the four Conventions of 1949. (2) This provision never achieved a tangible result. Despite the efforts of the ICRC, States never succeeded in actually setting up an enquiry because the consent of the Parties concerned was lacking. (3)

    3601 From the beginning of the ' travaux préparatoires ' to the Diplomatic Conference of 1974-1977, the necessity for some form of check on compliance with the rules applicable in case of armed conflict was emphasized by the experts. The development of Article 5 ' (Appointment of Protecting Powers and of their substitute), ' and the provision relating to the training of qualified personnel Article 6 -- ' Qualified persons ') reflect this concern. However, some wished for an additional mechanism, (4) a sort of "fall back" institution. (5)

    3602 The ICRC, for its part, was not at all opposed to this. It has always considered that it was not itself an investigative body, publishing findings and reporting on breaches. (6) However, because there was no specific proposal from the experts, it did not include in the draft a provision relating to commissions of enquiry. Thus the main foundations for the present article were two amendments, (7) presented during the course of the Conference. One of these proposals was even more ambitious than the present Article 90 , since it was entitled "Permanent Commission for the Enforcement of Humanitarian Law", while the other proposal bore the title "International Enquiry Commission". In one of the drafts the members of the commission were to be appointed by the ICRC, while the other draft recommended the establishment of regional lists for this purpose. These texts gave rise to new amendments (8) and proposals. Long and difficult discussions took place in the Committee. (9) Voting took place almost paragraph by paragraph, and the text was finally adopted as a whole with 40 votes in favour, 18 against, and 17 abstentions. (10) More or less the same happened in the plenary meeting which finally adopted the text of the article with 49 votes in favour, 21 against, and 15 abstentions. (11)

    [p.1041] Paragraph 1 -- Establishment of the Commission and election of its members

    ' Sub-paragraph ' (a)

    3603 The Commission in question is an International fact-finding Commission (12) consisting of fifteen members. This title actually indicates the scope of the Commission's competence. In principle it is only concerned with facts, and essentially has no competence to proceed to a legal assessment of the facts that have been established. However, the analysis of paragraph 2(c) of this article, which defines the Commission's area of competence more precisely, will show that the Commission may be called upon to provide a legal evaluation of the extent of its mandate. Similarly, paragraph 5 shows that the Commission,s conclusions may go beyond simply reporting the facts.

    3604 The composition of fifteen members corresponds to the proposals of some of the initiators of the article, (13) and seems appropriate when one refers to paragraph 3 which provides that the enquiry shall be undertaken by a Chamber of seven members, of whom only five have to be members of the Commission. Thus it is possible to constitute simultaneously two, or even three Chambers, depending on the requirements of the situation.

    3605 The members of the Commission must have a high moral standing and their impartiality must be "acknowledged". This phrase is also found with regard to the supervisory bodies set up under some of the human rights conventions. (14)

    3606 Thus the criterion of impartiality is opposed to the election of persons who are too closely linked by their function or their profession to the politics of the State from which they come. (15)

    3607 Similarly a person who is known for his uncompromising public position with regard to States which are or could be involved in an armed conflict, would not be eligible. Furthermore, it is self-evident that once they have been elected, members of the Commission should abstain from making any public comment on current armed conflicts. (16)

    [p.1042] 3608 It should also be noted that once the conditions laid down in sub-paragraph (b) have been fulfilled, the obligation to establish the Commission is not related to the existence of an armed conflict. It is therefore a permanent, impartial and non-political body.

    ' Sub-paragraph ' (b)

    3609 This provision is closely related to the "optional clause on recognition of compulsory competence", which is contained in paragraph 2(a). (17) This means that the Commission will not be set up until twenty Contracting Parties have agreed to recognize ' ipso facto ' and in advance the Commission,s competence. (18) Then, it must be constituted, and the depositary is bound to convene, at a constitutive meeting, the representatives of these twenty countries for the purpose of electing the members of the Commission. Thus it is primarily a body not of all the Parties to the Protocol, but of the Parties which in advance agree to accept its competence. Nevertheless, it is not excluded that other Parties to the Protocol may have recourse to the Commission in a particular case, as shown in paragraph 2(d).

    3610 The members are elected for five years; at the end of this period the depositary convenes another meeting of all the Parties concerned, for the purpose of holding another election.

    3611 The text contains only some brief ideas on the procedure to be followed during these meetings. However the depositary may seek guidance, for example, from the provisions contained in certain conventions on human rights, to resolve problems that have not been regulated: quorum, required majority, possibility of re-election etc. (19) The States participating in the meeting may obviously choose candidates from their own nationals. However, in view of the increased competence given the Commission in case of application of paragraph 2(d), it would seem desirable that the Commission is not exclusively composed of representatives of the electing countries.

    ' Sub-paragraph ' (c)

    3612 The Commission is independent from the States which establish it. This independence is clearly indicated in sub-paragraph (c) by the words which state that the members serve "in their personal capacity", i.e., in complete freedom. They do not receive instructions. In this context it may be recalled that the members of the Human Rights Committee take an oath or make a solemn [p.1043] declaration, partly inspired by the one taken by judges of the International Court of Justice, to perform their duties and exercise their powers "honourably, faithfully, impartially and conscientiously". (20)

    ' Sub-paragraph ' (d)

    3613 Candidates must have "the qualifications required". One suggestion presented during the discussions was aimed at nominating experts who should "not only be of great personal integrity but should be acquainted with, and have interdisciplinary experience of, the various aspects of the Geneva Conventions and the Protocols". (21) It should be recalled in this respect that the members of the Commission could not leave any legal problem wholly out of consideration.

    3614 As regards the clause which requires an equitable geographical representation, this is common for bodies with supervisory functions under the human rights conventions which combine it with the requirement of "representation of the different forms of civilization and of the principal legal systems". (22) The last point may be important for the assessment of evidence (paragraph 4). (23) The criterion of geographical distribution should, if possible, be considered in relation to all the Parties to the Protocol and the Conventions, and not only the countries which recognize ' ipso facto ' the Commission's competence. (24)

    ' Sub-paragraph ' (e)

    3615 In the case of a vacancy, the Commission proceeds by co-option, based on the original list of candidates presented at the constitutive meeting or the last meeting convened for an election. The candidate who obtained most votes from the reserve list will not necessarily be elected, since the criteria of qualification and geographical distribution must be respected. (25)

    ' Sub-paragraph ' (f)

    3616 This clause seems to cover only the availability of the necessary locations and secretarial facilities, (26) independently of the expenses provided for under paragraph 7.

    [p.1044] Paragraph 2 -- The Commission's area of competence

    ' Sub-paragraph ' (a)

    3617 By analogy with Article 36, paragraph 2, of the Statute of the International Court of Justice, this provision contains an optional clause on recognition of compulsory competence (27) for States which at the time of signing, ratifying or acceding to the Protocol, or at any subsequent time, declare that they recognize this competence ' ipso facto ' (de ' plein droit ' in the French version) with respect to any other State making the same declaration. Thus only those States which choose to, and which commit themselves in advance, are bound by the obligation to accept the enquiry. This formulation (28) established a compromise between two positions which created a serious rift between the participants of the Conference, one side insisting on a system of compulsory enquiry, while the other was irreversibly opposed to what they regarded as an intolerable encroachment on the sovereignty of States. (29) A final attempt to make the enquiry compulsory "in the case of a violation of the rules in occupied territory" also failed in plenary meeting of the Conference, (30) even with a restriction limiting this clause to territory occupied as a result of aggression. (31)

    3618 There is no doubt that only States are competent to submit a request for an enquiry to the Commission, to the exclusion of private individuals, representative bodies acting on behalf of the population, or organizations of any nature. On the other hand, there is no reason why a Protecting Power, duly entrusted in protecting the interests of a Party to the conflict which had recognized the Commission's competence, could not submit a request to the latter in the context of its general mandate. Moreover, it is not necessarily the Party which is the victim of the alleged violation which requests the enquiry. Any Contracting Party in the sense of paragraph 1 (b) can do so, provided that the request applies to another Contracting Party in the sense of the same provision. As regards the Commission, it is absolutely not permitted to act on its own initiative. (32)

    ' Sub-paragraph ' (b)

    3619 This provision obliges the depositary to notify all Parties to the Protocol, and even all Parties to the Conventions in accordance with Article 100 ' (Notifications), ' [p.1045] sub-paragraph (c), and not only the Contracting Parties who made a declaration on compulsory competence in accordance with sub-paragraph (a) of this paragraph.

    ' Sub-paragaph ' (c)

    ' (i) -- Enquiry '

    3620 The Commission is competent to enquire into facts and not to judge. If a submission regarding certain facts alleged to have taken place is made in due form, i.e., in accordance with sub-paragraph (a) above, the Commission is competent to try and establish whether these facts took place.

    3621 Moreover, this does not apply to all facts. The allegation which is submitted to the Commission must relate to a "grave breach" or "serious violation" of the Conventions or the Protocol. Thus the Commission must pass judgment on the admissibility of the request. Breaches and violations which are not serious are excluded, which in itself implies first of all a legal appraisal, which may not always be easy. Minor violations may become serious if they are repeated, and it is then up to the Commission to determine this, (33) in order to establish its competence. Virtually no distinction is made between grave breaches and serious violations in the text of the Conventions or the Protocol, which almost always refers to "grave breaches". A serious violation may be found which is not covered by the list of grave breaches. (34)

    3622 As we saw above, only grave breaches and serious violations of the Conventions and the Protocol fall under the competence of the Commission, and not those of other rules of the law of armed conflict, whether these are rules of customary law or not. Thus it is up to the Commission to interpret the provisions of the Conventions and of the Protocol, where necessary, to determine its competence on this point.

    3623 Some delegates at the Conference expressed the fear that in this way the Commission would come up against some thorny problems regarding its own competence, which could become a source of possible controversy. (35) This is yet another reason why the Commission should include amongst its members highly qualified lawyers. If the Commission had to spend a great deal of time on lengthy discussions regarding its own competence, its efficacy would be compromised.

    [p.1046] ' (ii) -- Good offices '

    3624 When it has taken note of facts which seem to it to constitute grave breaches or serious violations, the Commission is invited to facilitate, through its good offices, (36) the restoration of an attitude of respect for the provisions concerned. This clause is confirmed and even extended in paragraph 5(a) below, in the sense that, in providing such good offices, the Commission has to submit to the Parties concerned such recommendations as it deems appropriate. Once again it is difficult to imagine that the Commission can invite the restoration of an attitude of respect for certain provisions without having first formed an opinion regarding their non-respect. However, as the Commission must not pronounce on questions of law, it must be careful not to include such elements of legal evaluation in its report. Thus they would only have internal value, (37) and the Commission should only express in the report a ' prima facie ' appraisal. (38)

    3625 The term "good offices" can be understood to mean the communication of conclusions on the points of fact, comments on the possibilities of a friendly settlement, written and oral observations by States concerned, etc. (39)

    ' Sub-paragraph ' (d)

    3626 This sub-paragraph creates the possibility of resorting to the Commission for States which have not declared in advance that they recognize the competence of this Commission, in accordance with sub-paragraph (a) of this paragraph. This means that any Party to an international armed conflict, even if it is not a Party to the Protocol, may approach the Commission regarding an allegation of a grave breach or serious violation of the Conventions, which adds to the significance of the creation of the Commission. If such a Party to the conflict is a Party to the Protocol, it can do the same in the context of the Protocol. However, the Commission will consider itself to be competent only when the Party or Parties concerned give their consent. The question may arise whether such consent should be deemed to have been obtained in advance when the Party which is the subject of these allegations is one of those that recognized the Commission,s competence ' a priori ' (sub-paragraph (a) above). This interpretation would undeniably introduce an element of inequality: the Parties to the conflict which have not recognized the compulsory competence of the Commission could force a Party which has recognized this competence to accept the enquiry, but not the [p.1047] other way round. (40) This does not seem to correspond to the wording of subparagraph (a) of this paragraph. In fact the "other situations" referred to here are situations in which the conditions set out in sub-paragraph (a) have not been fulfilled and in which the clause on recognition of compulsory competence therefore does not apply. Only States which recognize the competence of the Commission ' a priori ' may impose an enquiry on a State which has done the same. This provision has the advantage of allowing all Parties to an armed conflict, including national liberation movements, to resort to the Commission on a case by case basis, but at any time, though obviously subject to the condition that the challenged Party gives its consent.

    ' Sub-paragraph ' (e)

    3627 The article which is common to the four Conventions and is referred to in this sub-paragraph, reads as follows:

    "At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.
    If agreement has not been reached concerning the procedure for the enquiry, the Parties should agree on the choice of an umpire who will decide upon the procedure to be followed.
    Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay."

    3628 This obligation, which applies to all alleged violations, and not solely to grave breaches and serious violations, is not only confirmed, but is extended to all alleged violations of the Protocol. All Parties to the Protocol which do not recognize the Commission's competence, as provided in this article, remain subject to the obligation to institute an enquiry at the request of a Party to the conflict, pursuant to the common article quoted above of the four Conventions. Similarly, all Parties to the Conventions and the Protocol which recognize the competence of the Commission as laid down in this article, remain subject, by reason of the same common article, to the obligation to institute an enquiry at the request of a Party to the conflict for all violations which do not fall under the Commission's competence, i.e., for all violations which are not serious.

    3629 Thus there is no change as far as basic obligations are concerned. However, this article common to the four Conventions has never in fact been applied. The wording is so succinct that the proceedings can be paralyzed at a procedural level at any time. It is precisely on this point that the present provision has achieved what is perhaps a decisive step forward with respect to allegations of grave breaches or serious violations.

    [p.1048] Paragraph 3 -- The constitution of the Chamber of Enquiry

    ' Sub-paragraph ' (a)

    3630 On some points the terms of this sub-paragraph are similar to those of Article 42 of the International Covenant on Civil and Political Rights which relate to the appointment of an ' ad hoc ' Conciliation Commission. However, it will be noted that the Protocol, by leaving open the possibility of any other solution which the Parties concerned may choose in common agreement, remains flexible and susceptible to any other formulation.

    3631 The role of the President of the Commission is decisive for the constitution of the Chamber responsible for conducting the enquiry. Paragraph 6 of Article 90 contains provisions relating directly to him. The President is called upon to appoint five members of the Commission to form part of the Chamber "after consultation with the Parties to the conflict". This expression differs from that used in the above-mentioned Article 42 of the Covenant, which requires "the prior consent of the States Parties concerned". Thus it may be concluded that the President is not formally bound by the opinion of the Parties that have been consulted. (41) In fact, it would seem desirable not only that the members of the Chamber are not nationals of a Party to the conflict, as stated in the text, but that they belong to neutral countries. (42)

    3632 The two ' ad hoc ' members, not nationals of any Party to the conflict, but appointed by these Parties, need not necessarily be chosen from the members of the Commission. They "represent" the Party which has appointed them and should contribute to creating an atmosphere of trust within the Chamber itself. (43)

    ' Sub-paragraph ' (b)

    3633 In time of armed conflict, the time taken by the body responsible for supervising compliance with the applicable rules may be crucial, not only for the fate of possible victims but also with regard to the risk of counter-measures being taken by the Party which considers itself wronged. (44) On this latter point, the procedure provided for in Article 90 is intended to have a dissuasive effect, [p.1049] and from the time that a request for an enquiry is presented to the Commission, there is some degree of urgency. (45) Moreover, the longer matters drag on, the more difficult it may become to establish the facts precisely. Thus the President must react immediately to a request presented to him, and will himself appoint the two ' ad hoc ' members in case the Parties fail to do so, (46) perhaps after attempting a final consultation with the Parties.

    Paragraph 4 -- Conduct of the enquiry

    ' Sub-paragraph ' (a)

    3634 Once the Chamber has been constituted, it invites the Parties to the conflict concerned to assist it and to present evidence. The above-mentioned Convention on the Elimination of all forms of Racial Discrimination provides in Article 11 that a State receiving a communication is to submit written explanations or statements clarifying the matter to the supervisory body, indicating, where appropriate, what measures have been taken to remedy the situation. It is also bound to furnish any relevant supplementary information when it is requested to do so. It may be admitted that the assistance of the Protecting Power can be called in a similar manner, if there is occasion to do so. If the Chamber carries out the investigation ' in loco, ' it is obvious that it should be provided with all the facilities necessary for this. Ideally it would be assisted by qualified personnel, in the sense of Article 6 of the Protocol ' (Qualified persons). ' furthermore, model procedures have been established for this purpose for the organs of the United Nations which have to deal with violations of human rights. (47) Protocol II annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (48) provides, in Article 8 , that the head of an observation mission of the United Nations must be informed of the location of minefields in the area where an enquiry is being held.

    [p.1050] ' Sub-paragraphs ' (b) ' and ' (c)

    3635 The rules of evidence laid down in these sub-paragraphs tend to confer to the Chamber's activity a quasi-judicial character. (49) furthermore it should be noted that all "the Parties", which means the Parties ' concerned ' (see the French text which states "Parties concernées"), are covered by this provision, while the preceding sub-paragraph refers only to the Parties to the conflict. The evidence may implicate either a Party to the conflict which was not the object of the allegations made, whether or not it accepted the compulsory competence of the Commission, or a State which is not Party to the conflict (for example, in the case of internment in a neutral country).

    Paragraph 5 -- Report of the Commission

    ' Sub-paragraph ' (a)

    3636 As regards its wording, this sub-paragraph is similar to Article 13, paragraph 1, of the above-mentioned International Convention on the Elimination of all forms of Racial Discrimination. Under the terms of that article the States concerned receive a report containing the findings of the Commission "on all questions of fact relevant to the issue between the parties, and containing such recommendations as it may think proper for the amicable solution of the dispute". The similarity to the present sub-paragraph is striking, and it is therefore no longer merely a question of good offices, as in paragraph 2(c)(ii). This may be interpreted as a first step towards mediation.

    ' Sub-paragraph ' (b)

    3637 Unlike the corresponding provisions of the conventions on human rights, (50) this sub-paragraph does not determine the period within which the State accused of violation has to reply to the Chamber's requests. This question of the period of time is of great importance as it determines the moment when the Commission will have to expose publicly the responsibility of the Parties concerned, by publicly reporting on their shortcomings, if any. Thus the question must be esolved in the Commission,s own rules, as required under paragraphe6. Depending on the situation, particularly when there is a danger of a violent reaction from the Party which considers itself wronged, the enquiry has to be conducted as rapidly as possible. The reproach of being far too slow could indeed be made of the analagous procedures instituted in the context of the human rights conventions.

    [p.1051] ' Sub-paragraph ' (c)

    3638 The wording of this sub-paragraph has given rise to controversy. For some, "the conclusions reached by a highly qualified international commission of inquiry would have the same effect as a sanction, and the incriminated Party would not be able to disregard them" for fear of public opinion. (51) In fact, there may be a need for publicity even when no violation has been noted, to remove all suspicion from the incriminated Party. Other delegations contrasted the advantages of "discreet diplomacy" (52) to these arguments. Such discretion could well be considered to be the prerogative of organs of conciliation. It was clearly this position which finally won the day, and indeed in the most restrictive form. A proposal aimed at prohibiting public disclosure, "unless the Parties consent thereto", was rejected by the Conference. (53) Thus for the Commission to report its findings publicly there should be a request from all the Parties to the conflict, not the Parties to which paragraph 4(b) and (c) and paragraph 5(a) refer. The findings must be understood to mean the report as a whole, as well as its constitutive elements.

    Paragraph 6 -- The Commission's own rules

    3639 The Commission can refer, for the purpose of establishing its own rules and before adopting these rules, to models, such as the rules of supervisory organs under the human rights conventions, provided that it respects the conditions laid down in the present paragraph and by the article as a whole, and takes into account the requirements inherent in situations of armed conflict. The depositary can also use these rules as an example at the constitutive meeting of the High Contracting Parties provided for in paragraph 1(a), as long as this meeting has not adopted its own rules. (54)

    3640 Because of the central role of the President (see paragraph 3) the continuity of his function is explicitly referred to, on the one hand, and the necessity of providing for his replacement when need be, on the other hand, to ensure that this function is never exercised by a person who is a national of a Party to the conflict. In any case, like all members of the Commission, the President should be a person of the highest calibre and in every respect above suspicion.

    Paragraph 7 -- The Commission's expenses

    3641 The original proposals anticipated that the cost of the Commission would be met only by voluntary contributions channelled through the International [p.1052] Committee of the Red Cross or through the depositary. (55) As this solution did not really appear to be satisfactory, it was amended (56) to the formulation of the present paragraph, which puts forward a clearly improved solution, although it is still subject to criticism. (57)

    3642 In the first place, it is to be hoped that the obligation that every State which makes a declaration of acceptance of the compulsory competence of the Commission must share in its administrative expenses will not be such as to discourage it from making this declaration.

    3643 By obliging the Party or Parties to the conflict which request an enquiry, to advance the necessary funds for expenses incurred by a Chamber, it was hoped to discourage rash demands for enquiries. However, the obligation for the Party or Parties against which the allegations have been made to reimburse fifty per cent of the expenses incurred, is perhaps not very likely either to favour recognition of the Commission's compulsory competence. In fact, such reimbursement is due, regardless of whether the allegations and counterallegations are proved. It is sufficient that they have been made against one or more States which recognize the compulsory competence for the reimbursement to be payable. At the very least, this solution must be said to be defective. However, it is true that compared with the costs States are willing to incur for armaments and military expenses in time of armed conflict, these expenses are only a drop in the ocean.

    Conclusion

    3644 Article 90 is closely related to Article 1 common to the Conventions and Article 1 of the Protocol ' (General principles and scope of application), ' which enjoin the Contracting Parties to respect and to ensure respect for the Conventions and the Protocol in all circumstances. This article may prove to be useful, despite its faults. It institutes for the first time in the law of armed conflict -- and this must be underlined, as all previous efforts failed -- a permanent non-political and impartial international commission of enquiry to which the Parties to the conflict can resort at any time. With regard to the Commission's competence, the text allows the Contracting Parties to choose between recognizing its compulsory competence ' a priori ' and an optional acceptance in each case. In this way it achieves a balance between the two conflicting points of view which arose during the Conference. It is to be hoped that the quorum of twenty Parties to the Protocol recognizing the compulsory competence of the Commission, an essential quorum for it to be established, will soon be achieved.

    ' J. de P. '


    NOTES (1) [(1) p.1039] See ' Commentary I ', pp. 374-379;

    (2) [(2) p.1040] First Convention, Art. 52; Second Convention, Art. 53; Third Convention, Art. 132; Fourth Convention, Art. 149. This procedure of enquiry should not be confused with that provided for in Arts. 121, Third Convention, and 131, Fourth Convention, concerning prisoners or internees killed in special circumstances;

    (3) [(3) p.1040] For examples, see J. Pictet, ' Le droit humanitaire et la protection des victimes de la guerre ', op. cit., pp. 80-81;

    (4) [(4) p.1040] See ' CE 1971, Report ', pp. 108-109, paras. 536-550; ' Government replies ', pp. 74-90;

    (5) [(5) p.1040] ' CE 1972, Report ', vol. I, p. 181, para. 4.72;

    (6) [(6) p.1040] Ibid. For the ICRC position on this subject, see "Action by the ICRC in the Event of Breaches of International Humanitarian Law", ' IRRC ', March-April 1981, pp. 76-83;

    (7) [(7) p.1040] O.R. III, pp. 388-389, CDDH/I/241 and Add.1, and pp. 340-342, CDDH/I/267; for their introduction, O.R. IX, pp. 189-194, CDDH/I/SR.56;

    (8) [(8) p.1040] O.R. III, pp. 342-343, CDDH/I/316; p. 343, CDDH/415; pp. 344-345, CDDH/416;

    (9) [(9) p.1040] See O.R. IX, pp. 189-232, CDDH/I/SR.56-58;

    (10) [(10) p.1040] See ibid., pp. 420-426, CDDH/I/SR.72; for the different versions presented, see O.R. X, pp. 220-228, CDDH/405/Rev.1, and for the draft presented in plenary meeting, ibid., pp. 264-268;

    (11) [(11) p.1040] See O.R. VI, p. 341, CDDH/SR.46, and for the debate, pp. 309-328, CDDH/SR.45;

    (12) [(12) p.1041] For the efforts made in this field by the United Nations, see the two reports of the Secretary- General "Questions of methods o fact-finding" (General Assembly, 21st session, Resolution 2182 of 12 December/1966, Official Documents, supplement No. 16 A/6316)), and Resolution 2329 of 18 December 1967 (ibid., 22nd session, supplement No. 16 (A/6716)), and B.G. Ramcharan (ed.), ' International Law and Fact-Finding in the Field of Human Rights, International Studies in Human Rights ', The Hague, 1982. See also ' SIM Conference on Human Rights Fact- Finding, Utrecht 1983, Final Report ', The Netherlands Institute of Human Rights;

    (13) [(13) p.1041] O.R. III, p. 338, CDDH/I/241, and Add.1. Another proposal envisaged a Commission of five members (ibid., p. 340, CDDH/I/267). By way of comparison, the International Convention on the Elimination of all Forms of Racial Discrimination (Art. 8) provides for the establishment of a Committee consisting of eighteen experts. This Committee has the task of examining the reports submitted by the States Parties to the Convention on the measures they have taken to give effect to this Convention;

    (14) [(14) p.1041] For example, see Art. 8 of the above-mentioned Convention;

    (15) [(15) p.1041] In this respect, see the remarks of K.J. Partsch, in M. Bothe, K.J. Partsch and W.A. Solf, op. cit., p. 542;

    16) [(16) p.1041] In this sense, see Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., p. 398, note 51;

    (17) [(17) p.1042] The final wording is due to a last minute amendment (O.R. III, p. 344, CDDH/416, and O.R. VI, pp. 322-325, CDDH/SR.45);

    (18) [(18) p.1042] For States which accepted ipso facto the competence of the Commission, see infra, para. 2 (a), p. 1044;

    (19) [(19) p.1042] See, for example, Art. 30 of the International Covenant on Civil and Political Rights, which relates to the procedure for the election of the Human Rights Committee;

    (20) [(20) p.1043] M Schreiber, "La pratique récente des Nations Unies dans le domaine de la protection des droits de l'homme", 145 ' Hague Recueil ', 1975/II, p. 334;

    (21) [(21) p.1043] O.R. IX, pp. 209-210, CDDH/I/SR.57, para. 16;

    (22) [(22) p.1043] International Covenant on Civil and Political Rights, Art. 31;

    (23) [(23) p.1043] Cf. O.R. IX, p. 218, CDDH/I/SR.57, para. 63;

    (24) [(24) p.1043] In this sense, see M. Bothe, K.J. Partsch, W.A. Solf, op. cit., pp. 542-543. Cf. also para. 2 (a) of Article 90;

    (25) [(25) p.1043] M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 543;

    (26) [(26) p.1043] Cf. ibid;

    (27) [(27) p.1044] Cf. Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., p. 398;

    (28) [(28) p.1044] Accepted in plenary meeting with 43 votes in favour, 13 against, and 33 abstentions (see O.R. VI, p. 325, CDDH/SR.45, para. 79);

    (29) [(29) p.1044] On this controversy, see E. Kussbach,"commission internationale d'établissement des faits", XX-1-2 RDPMDG, 1981, p. 78, at pp. 96-101;

    (30) [(30) p.1044] O.R. VI, pp. 313 and 317, CDDH/SR.45, paras. 29 and 48; for the discussion, see ibid., pp. 311-318;

    (31) [(31) p.1044] Ibid., p. 324, para. 78;

    (32) [(32) p.1044] Such a proposal was contained in the initial amendment CDDH/I/241 (O.R. III, p. 338), but was later abandoned. See also O.R. IX, p. 205, CDDH/I/SR.56, para. 73;

    (33) [(33) p.1045] See O.R. IX, p. 53, CDDH/I/SR.45, para. 45. However, it is perfectly possible to imagine resort to the Commission to ensure the supervision of hospital zones and localities from time to time (First Convention, Art. 23 and Annex I, Arts. 8-10) and of hospital and safety zones and localities (Fourth Convention, Art. 14 and Annex I, Arts. 8-10) or non-defended localities or demilitarized zones (Arts. 59 and 60, Protocol I);

    (34) [(34) p.1045] E. Kussbach expresses the view that a serious violation (unlike a grave breach) engages the responsibility of the Party to the conflict without engaging, at an international level, the responsibility of the individual ("Commission internationale d'établissement des faits", op. cit., p. 101. In addition see introduction to this Section, supra, p. 976, note 11, and commentary Art. 89, supra, pp. 1033-1034;

    (35) [(35) p.1045] See O.R. VI, pp. 341-342, CDDH/SR.46;

    (36) [(36) p.1046] Cf. Art. 41 (e) of the Covenant;

    (37) [(37) p.1046] In this sense, cf. M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 544;

    (38) [(38) p.1046] In this sense, cf. E. Kussbach, "Commission internationale d'établissement des faits", op. cit., p. 102;

    (39) [(39) p.1046] Cf. M. Schreiber, op. cit., p. 365. See also B. Graefrath, "Die Untersuchungskommission im Ergängzungsprotokoll zu den Genfer Abkommen vom 12.8.1949", ' Wissenschaftliche Zeitschrift der Humboldt Universität zu Berlin ', Ges.-Sprachw. R.XXX (1981) 1, p. 13;

    (40) [(40) p.1047] See O.R. VI, pp. 342 and 365, CDDH/SR.46. Moreover, Ch. Rousseau, op. cit., p. 273, specifies that clauses of this type, because they are by way of an exception and subject to a restrictive interpretation when they are included in a treaty;

    (41) [(41) p.1048] In this respect, Ph. Bretton remarks that one might think that this is not just an opinion, since it would be very difficult for the president, who might be jeopardizing the success of the enquiry, to appoint someone who did not have the agreement of the Parties involved in the enquiry, and this obligation of consultation could well be transformed into a procedure of a binding opinion, even though, according to the text, the Parties do not have a power of veto here ("La mise en oeuvre des Protocoles de Genève de 1977", op. cit., p. 401);

    (42) [(42) p.1048] In this sense, see O.R. IX, pp. 208-209, CDDH/I/SR.57, para. 11, and p. 423, CDDH/I/ SR.72, para. 47; see also O.R. VI, p. 376, CDDH/SR.46;

    (43) [(43) p.1048] In this sense, cf. E. Kussbach, "commission internationale d'établissement des faits", op. cit., p. 103;

    (44) [(44) p.1048] With regard to reprisals, see introduction to this Section, supra, p. 981;

    (45) [(45) p.1049] See O.R. IX, p. 65, CDDH/I/SR/46, para. 53; p. 86, CDDH/I/SR.48, para. 12; p. 194, CDDH/I/SR.56, para. 20;

    (46) [(46) p.1049] In this respect, see the interesting remarks by Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., pp. 401-402;

    (47) [(47) p.1049] Resolution 1870 (LVI) of the Economic and Social Council, which brought them to the attention of all organs and agencies of the United Nations concerned with human rights (cf. M. Schreiber, op. cit., pp. 367 and 377, note 3); for the text, see B.G. Ramcharan, op. cit., Annex I and II, pp. 231-248, and "Belgrade minimal rules of procedure for international human rights fact-finding missions", ibid., pp. 250-252, and 75 AJIL I, 1981, pp. 163-165 (ILA);

    (48) [(48) p.1049] See supra commentary Art. 35, para. 2, p. 402;

    (49) [(49) p.1050] In this sense, see Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., p.402;

    (50) [(50) p.1050] Covenant, Art. 41, para. 1 (a), and Convention on the Elimination of all Forms of Racial Discrimination, Art. 11, para. 1, which provide for a period of three months;

    (51) [(51) p.1051] O.R. IX, p. 40, CDDH/I/SR.44, para. 69, and O.R. VI, p. 384, CDDH/SR.46;

    (52) [(52) p.1051] O.R. IX, p. 205, CDDH/I/SR.56, para. 74;

    (53) [(53) p.1051] Ibid., p. 425, CDDH/I/SR.72, para. 58;

    (54) [(54) p.1051] See supra, p. 1041;

    (55) [(55) p.1052] O.R. III, p. 339, CDDH/I/241 and Add.I; p. 342, CDDH/I/267;

    (56) [(56) p.1052] Ibid., p. 345, CDDH/I/416;

    (57) [(57) p.1052] See M. Bothe, K.J. Partsch and W.A. Solf, op. cit., p. 546, and Ph. Bretton, "La mise en oeuvre des Protocoles de Genève de 1977", op. cit., p. 403. For the debate, see O.R. VI, pp. 325-328, CDDH/SR.45;