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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
Art. 53. Chapter VIII : Repression of abuses and infractions
. -- ENQUIRY PROCEDURE
In 1929 a provision similar to that above was inserted in the First Convention, and in 1937 the International Committee convened a Commission of Experts to revise and develop the text. At the 1949 Diplomatic Conference, the joint Committee adopted the 1929 text with some modifications and decided to introduce it into all four Conventions, without taking into account the proposals made by the Commission of Experts in 1937 (1). Thus, since 1929 no progress has been made in regard to the automatic operation of the enquiry procedure or the choice of those responsible for carrying it out. That is undoubtedly the greatest obstacle to the application of the present Article.
' Paragraph 1 ' states that an enquiry is obligatory when one of the belligerents requests it; in asking for the opening of an enquiry, the Party to the conflict concerned will probably also propose the methods by which it should be conducted.
[p.272] It should be pointed out that this Article has never been applied, to the best of the International Committee's knowledge (2).
' Paragraph 2 ' applies to cases where the Parties concerned are unable to agree on the procedure to be followed. They must then agree on the choice of an umpire who will decide on a procedure. The Convention does not state what is to happen if the Parties fail to reach agreement on the choice of an umpire. It should be noted, however, that Resolution No. 1 of the Diplomatic Conference recommends that the Parties to the conflict refer to the International Court of justice a dispute between them which cannot be settled by other means.
In practice, the body which seems the best qualified to carry out the enquiry would quite naturally be the Protecting Power. If necessary, the diplomatic representatives of other neutral States already on the spot and able to act rapidly could also carry out an enquiry.
' Paragraph 3 ' requires the Parties to the conflict to put an end to the violation in the case of a permanent or continuous violation of the Convention (such as the permanent marking with the protective emblem of a vessel not entitled to protection), and to punish those responsible. It should be noted, in this connection, that the obligation is already contained in Articles 50
It would be possible also to set up two separate bodies, one to decide on questions of fact and the other to determine whether or not there has been a breach of the Convention. It may, in certain circumstances, prove extremely difficult to arrive at the facts, since if this enquiry procedure is followed, it means a priori that the Parties disagree on whether a breach has been committed or not.
* (1) [(2) p.271] See ' Commentary I, ' pp. 375-377;
(2) [(1) p.272] An attempt to apply Article 30 of the 1929
Convention was made during the Italo-Abyssinian conflict