¹ International Legal Materials, Washington, D.C., 11 1977, vol. 16, pp. 1371 Google Scholar et seq. For a discussion of the U.S. decision not to ratify Protocol I, see “Agora”, American Journal of International Law, Washington, D.C., 10 1987, vol. 81, pp. 910–25CrossRefGoogle Scholar and id., October 1988, vol. 82, pp. 784–87.

² Proceedings of the American Society of International Law, Washington, D.C., 1987, vol. 81, pp. 28–31 Google Scholar (remarks of U.S. Department of State Deputy Legal Adviser Matheson); “The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols additional to the 1949 Geneva Conventions”, American University Journal of International Law and Policy, Washington, D.C., 1987, vol. 2, p. 428 Google Scholar (remarks of U.S. Department of State Deputy Legal Adviser Matheson).

³ Article 90 originated in two proposals, one made by Pakistan and the other made jointly by Denmark, New Zealand, Norway and Sweden. Both proposals stated that when a request for an inquiry was made by a party to the conflict, such an inquiry would be conducted and would not be subject to veto by the other side, either directly or indirectly. As was to be expected, early in the discussions the concerns for “violation of national sovereignty” and “interference in internal affairs” were raised by the Communist countries ( Levie, H., Protection of War Victims, Dobbs Ferry, N.Y., Oceana, 1977, vol. 4, pp. 390 Google Scholar (paras. 1–9), 394 (paras. 35–36), 395 (paras. 40–43, etc.). “As a result the article as adopted is, once again, completely consensual and will probably be no more effective than the common article of the 1949 Geneva Conventions and its predecessor have proved themselves.” Levie, H., The Code of International Armed Conflict, Dobbs Ferry, N.Y., Oceana, 1986, vol. 2, p. 878 Google Scholar.

Common Article 52/53/132/149 of the 1949 Geneva Convention provides that “at the request of a Party to the conflict, an enquiry shall be instituted” concerning any alleged violations thereof. Although the ICRC Commentary considers this to be “obligatory”( The Geneva Conventions of 12 August 1949—Commentary, under the editorship of Pictet, Jean, ICRC, Geneva, 1960, vol. III, p. 632)Google Scholar, no such inquiry has ever been conducted and it is extremely doubtful that one ever will be, as it is so very easy for the party alleged to have committed the violations to prevent the inquiry from being conducted. It can do so by refusing to agree to a procedure and then by refusing to agree to the choice of an umpire. Article 30 of the 1929 Geneva Convention contained the identical “obligatory” wording (“an enquiry shall be instituted”) and there is no public record of any inquiry ever having been conducted thereunder. Id., pp. 878, 874. See note 25 below. See also Murphy, T. J., “Sanctions and Enforcement of the Humanitarian Law of the Four Geneva Conventions of 1949 and Geneva Protocol I of 1977,” Military Law Review, Charlottesville, Va., 1984, vol. 103, p. 3.Google Scholar

⁴ In one respect Article 90 is an improvement on past efforts. Paragraph 3, providing for the designation of the members of the Chamber which is to make an investigation, is so drafted that it will be impossible for an alleged violator which has filed a declaration or has agreed to the investigation, to prevent the establishment of the Chamber and the investigation by refusing to name an ad hoc member. See text accompanying notes 44–46 below.

⁵ Bothe, M., Partsch, K. J. & Solf, W. A., New Rules for Victims of Armed Conflicts, The Hague, Nijhoff, 1982, para. 2.12, p. 543.Google Scholar

⁶ International Legal Materials, 05 1984, vol. 23, p. 670 CrossRefGoogle Scholar; U.S. Department of State Bulletin, 01 1986, p. 67 CrossRefGoogle Scholar; International Legal Materials, 11 1985, p. 1742.Google Scholar

⁷ The JCS analysis continued:

“This conclusion lends greater importance to the earlier recommendation that the limits on reprisals in Articles 51–56 be reserved. If the United States cannot rely on neutral supervision to ensure compliance with humanitarian law, then the threat of unilateral retaliation retains its importance as a deterrent sanction to ensure at least a minimum level of humane behavior by US adversaries”.

⁸ Communication to the author from Commander W. Fenrick, CF, Office of the Judge Advocate General, Ottawa, November 21, 1990.

⁹ Reports of the Mission Dispatched by the Secretary-General to Investigate Allegations of the Use of Chemical Weapons in the Conflict Between the Islamic Republic of Iran and the Republic of Iraq, UN Docs. S/16433 (1984); S/17127 and Add. 1 (1985); S/17911 and Corr. 1 and Add. 1 and 2 (1986); S/18852 and Add. 1 (1987); S/19823 and Corr. 1 and Add. 1, 25 April 1988; S/20060, 20 July 1988, and S/20063, 25 July 1988. These reports led to vigorous condemnation of the use of chemical weapons, albeit without assigning responsibility to one side, in Security Council Resolution 612, 9 May 1988, U.S. Department of State Bulletin, 07 1988, p. 69.CrossRefGoogle Scholar Similar reports have been submitted regarding the treatment of prisoners of war: Prisoners of War in Iran and Iraq: The Report of a Mission Dispatched by the Secretary-General, January 1985, UN Doc. S/16962*, 22 February 1985, and The Report of the Mission Dispatched by the Secretary-General on the Situation of Prisoners of War in the Islamic Republic of Iran and the Republic of Iraq, UN Doc. S/20417, 24 August 1988.

¹⁰ See, e.g., the Report of the Independent Counsel on International Human Rights on the Human Rights Situation in Afghanistan, attached to UN Doc. A/C.3/42/8, 17 November 1987.

¹¹ The ICRC has issued guidelines to govern its activities in the event of breaches of the law (“Action by the International Committee of the Red Cross in the Event of Breaches of International Humanitarian Law,” International Review of the Red Cross, No. 221, 03–04 1981, pp. 81–83):Google Scholar

“1. Steps taken by the ICRC on its own initiative

General rule: The ICRC shall take all appropriate steps to put an end to violations of international humanitarian law or to prevent the occurrence of such violations. These steps may be taken at various levels according to the gravity of the breaches involved.

However, they are subject to the following conditions:

Confidential character of steps taken: In principe these steps will remain confidential.

Public statements: The ICRC reserves the right to make public statements concerning violations of international humanitarian law if the following conditions are fulfilled:

— the violations are major and repeated;

— the steps taken confidentially have not succeeded in putting an end to the violations,

— such publicity is in the interest of the persons or populations affected or threatened;

— the ICRC delegates have witnessed the violations with their own eyes, or the existence and extent of those breaches were established by reliable and verifiable sources”.

The ICRC made public representations regarding the Iran-Iraq war. See International Review of the Red Cross, No. 235, 07–08 1983, pp. 220–22Google Scholar (press release of 11 May 1983 describing appeal of 7 May 1983 to the nations party to the Geneva Conventions); id., No. 239, March–April 1984, pp. 113–15 (press release of 15 February 1984 regarding appeal to governments of 10 February 1984); id., No. 243, November–December 1984, pp. 357–58 (press release describing appeal to governments of 24 November 1984). The ICRC issued a press release on misuse of the red cross emblem in Lebanon, id., No. 248, September–October 1985, pp. 316–17; and a press release on the Afghan conflict on 20 May 1984, id., No. 241, July–August 1984, pp. 239–40.

The ICRC Guidelines further provide:

Special rule: The ICRC does not as a rule express any views on the use of arms or methods of warfare. It may, however, take steps and, if need be, make a public statement if it considers that the use or the threat to make use of a weapon or method of warfare gives rise to an exceptionally grave situation.

Such situations arose during the course of the Iran-Iraq war. ICRC, Annual Report 1984, pp. 60–61 (7 03 1984 Google Scholar, report on the use of prohibited weapons, and 7 June 1984, press release on the bombing of Iraqi and Iranian cities); International Review of the Red Cross, No. 257, 03–04 1987, p. 217 Google Scholar (appeal of 11 February 1987 regarding bombing of cities); ICRC, Bulletin, No. 147, 04 1988, p. 4 Google Scholar (10 March 1988, press release protesting against bombing of cities, and 23 March 1988, press release condemning use of chemical weapons in the province of Sulaymaniyah).

The ICRC Guidelines continue:

2. Reception and transmission of complaints

Legal basis: In conformity with article 6, para. 4 of the Statutes of the International Red Cross, the ICRC is entitled to take cognizance of “complaints regarding alleged breaches of the humanitarian Conventions”.

Complaints from a party to a conflict or from the National Society of a party to a conflict: The ICRC shall not transmit to a party to a conflict (or to its National Red Cross or Red Crescent Society) the complaints raised by another party to that conflict (or by its National Society) unless there is no other means of communication and, consequently, a neutral intermediary is required between them.

Complaints from third parties: Complaints from third parties (governments, National Societies, governmental or non-governmental organizations, individual persons) shall not be transmitted.

If the ICRC has already taken action concerning a complaint it shall inform the complainant inasmuch as it is possible to do so. If no action has been taken, the ICRC may take the complaint into consideration in its subsequent steps, provided that the violation has been recorded by its delegates or is common knowledge, and in so far as it is advisable in the interest of the victims.

The authors of such complaints may be invited to submit them directly to the parties in conflict.

Publicity given to complaints received: As a general rule the ICRC does not make public the complaints it receives. It may publicly confirm the receipt of a complaint if it concerns events of common knowledge and, if it deems it useful, it may restate its policy on the subject.

3. Requests for inquiries

The ICRC can only take part in an inquiry procedure if so required under the terms of a treaty or of an ad hoc agreement by all the parties concerned. It never sets itself up, however, as a commission of inquiry and limits itself to selecting, from outside the institution, persons qualified to take part in such a commission.

The ICRC shall moreover not take part in an inquiry procedure if the procedure does not offer a full guarantee of impartiality and does not provide the parties with means to defend their case. The ICRC must also receive an assurance that no public communications on an inquiry request or on the inquiry itself shall be made without its consent.

As a rule, the ICRC shall only take part in the setting up of a commission of inquiry, under the above-stated conditions, if the inquiry is concerned with infringements of the Geneva Conventions or of their 1977 Protocols. It shall on no account participate in the organization of a commission if to do so would hinder or prevent it from carrying out its traditional activities for the victims of armed conflicts, or if there is a risk of jeopardizing its reputation of impartiality and neutrality.…

4. Requests to record violations

If the ICRC is asked to record the result of a violation of international humanitarian law, it shall only do so if it considers that the presence of its delegates will facilitate the discharge of its humanitarian tasks, especially if it is necessary to assess victims' requirements in order to be able to help them. Moreover, the ICRC shall only send a delegation to the scene of the violation if it has received an assurance that its presence will not be used to political ends”.

These guidelines do not deal with violations of international law or humanitarian principles to the detriment of detainees whom they have to visit as part of the activities which the ICRC's mandate requires it to carry out in the event of internal disturbances or tensions within a given State. Since this type of activity is based on ad hoc agreements with governments, the ICRC follows specific guidelines in such situations.

See also “ICRC Protection and Assistance Activities in Situations not Covered by International Humanitarian Law,” id., No. 262, January–February 1988, pp. 9–37.

¹² European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Strasbourg, November 26, 1987, International Legal Materials, 09 1988, vol. 27, pp. 1152 CrossRefGoogle Scholar et seq., entered into force 1 February 1989.

¹³ Article 90, paras 1 (b) and 2 (a).

¹⁴ It should be noted that Protocol I wisely gives no specific role to the ICRC in the creation or operation of the Fact-Finding Commission. Certainly the ICRC could give evidence to the Chamber but it will be disclosed, like all evidence, fully to both sides (Article 90, para. 4 (b). If the ICRC were to become involved in fact-finding, it would not be able to fulfil its traditional roles. See note 11 above. Governments could not be expected to allow the ICRC access to POW camps, for example, if the ICRC were at the same time conducting fact-finding enquiries and if, at a later date, ICRC delegates gave evidence to the Chamber without the consent of the government in question.

¹⁵ This procedure follows the example set out in Article 30 of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, for the election of members of the Human Rights Commission.

¹⁶ 21 December 1965, entered into force 4 January 1969, 660 U.N.T.S. 195, U.S. Sen. Ex. C, 95th Cong. 2d Sess., International Legal Materials, 03 1966, vol. 5, pp. 352 et seq. Google Scholar

¹⁷ Article 90, para. 1 (c).

¹⁸ Article 90, para. 1 (e).

¹⁹ One commentator suggests the President of the Commission may be appointed by the meeting of the States Parties. Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.23, p. 546.Google Scholar He also suggests that “as long as rules for the presidency of the Commission have not yet been established, the representative of the depositary takes the chair”.

²⁰ Cf. Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.23, p. 546.Google Scholar Article 90, para. 6 provides that the rules of the Commission “shall ensure that the functions of the President of the Commission are exercised at all times and that, in case of an enquiry, they are exercised by a person who is not a national of the Party to the conflict”. Hence the rules will have to provide for the designation of a President pro tempore when the elected President cannot exercise his functions on those grounds.

²¹ Franck, T. M. & Fairley, H. S., “Procedural Due Process in Human Rights Fact-Finding by International Agencies”, American Journal of International Law, 04 1980, pp. 308, 311.CrossRefGoogle Scholar

²² Id., pp. 344–45.

²³ Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, ICRC 1987, para. 3620, p. 1045 Google Scholar (Y. Sandoz, Ch. Swinarski & B. Zimmermann eds.) [hereinafter ICRC Commentary].

²⁴ Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.15, p. 544.Google Scholar

²⁵ This common article provides:

“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”.

Article 90, para. 2 (e) extends this enquiry procedure to any violation of Protocol I. Unfortunately this enquiry procedure cannot be implemented when one Party does not wish the enquiry to take place. Not surprisingly, no enquiry has ever been instituted under this procedure. These defects led to the desire for a more compulsory enquiry procedure. See note 3 above, and ICRC Commentary, paras. 3628–29, p. 1047 Google Scholar; Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.16, p. 544 Google Scholar, Pictet, J., The Geneva Conventions of 12 August 1949, Commentary, op. cit., 1952, vol. I, pp. 374–79Google Scholar; Levie, H., The Code of International Armed Conflict, vol. 2, pp. 878–79.Google Scholar

²⁶ Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.14, p. 544.Google Scholar These would include violations of much of the law of naval warfare.

²⁷ While any violation of the law of armed conflict is a war crime, certain crimes are defined as “grave breaches” by common Article 50/51/130/147 if committed against persons or property protected by the Conventions. They include:

(i) willful killing, torture or inhuman treatment of protected persons;

(ii) willfully causing great suffering or serious injury to body or health of protected persons,

(iii) taking of hostages and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;

(iv) unlawful deportation or transfer or unlawful confinement of a protected person;

(v) compelling a prisoner of war or other protected person to serve in the forces of a hostile power; and,

(vi) willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial prescribed in the Geneva Conventions.

²⁸ Additional Protocol I, Arts. 11, para. 4 and 85, paras 2–4, codify in greater detail the two separate categories of grave breaches. The first category relates to combat activities and medical experimentation and provides for the first time a meaningful standard by which such acts can be judged. A breach within this category requires (1) willfulness and (2) that death or serious injury to body or health be caused (Art. 85, para. 3).

The Protocol provides that the following acts constitute grave breaches:

(i) making the civilian population or individual civilians the object of attack;

(ii) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause extensive loss of life, injury to civilians and damage to civilian objects, as defined in Article 57, para. 2(a)(iii);

(iii) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, para. 2(a)(iii);

(iv) making non-defended localities and demilitarized zones the object of attack;

(v) making a person the object of attack in the knowledge that he is hors de combat,

(vi) the perfidious use, in violation of Article 37, of the distinctive emblem of the red cross, red crescent, or other protective sign recognized by the Conventions or this Protocol;

(vii) physical mutilations;

(viii) medical or scientific experiments; and,

(ix) removal of tissue or organs for transplantation, except where these acts are justified in conformity with the state of health of the person or consistent with medical practice or conditions provided for in the Conventions.

(1) Exceptions to the prohibition in subparagraph (ix) may be made only in the case of donations of blood for transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and controls designed for the benefit of both the donor and the recipient.

(2) Any willful act or omission which seriously endangers the physical or mental health or integrity of any person who is in the power of a Party other than the one on which he depends and which either violates any of the prohibitions above or fails to comply with these requirements shall be a grave breach of this Protocol.

The second category of grave breaches defined by Protocol I is contained in Article 85, para. 4. The only requirement to be satisfied with respect to these offences is willfulness:

(i) The transfer by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention.

(ii) Unjustified delay in the repatriation of prisoners of war or civilians.

(iii) Practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination.

(iv) Making the clearly recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives.

(v) Depriving a person protected by the Conventions or referred to in paragraph 2 of this article of fair and regular trial.

See also Levie, H., The Code of International Armed Conflict, vol. 2, pp. 857–71Google Scholar, and Burgos, H. S., “The Taking of Hostages and International Humanitarian Law”, International Review of the Red Cross, No. 270, 05–06 1989, p. 196.CrossRefGoogle Scholar

²⁹ ICRC Commentary, para. 3591, p. 1033.Google Scholar

³⁰ ICRC Commentary, para. 3592, p. 1033.Google Scholar It must be noted that there is no explicit indication of what was meant by this term in Article 89. It replaces “grave breaches” in an article that was to circumscribe reprisals for grave breaches but which was defeated in committee. See Levie, H., Protection of War Victims, vol. 4, pp. 333–71.Google Scholar See also ICRC Commentary, para. 3621, p. 1045, note 34.Google Scholar

³¹ Article 90, para. 2 (c) (ii).

³² ICRC Commentary, para. 3625, p. 1046.Google Scholar

³³ ICRC Commentary, para. 3624, p. 1046.Google Scholar

³⁴ Cf. ICRC Commentary, para. 3624, p. 1046.Google Scholar

³⁵ Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.12, p. 543.Google Scholar

³⁶ Ibid., para. 2.13, pp. 543–44.

³⁷ ICRC Commentary, para. 3626, pp. 1046–47.Google Scholar The making of such a request would seem to be an appropriate action considering the duty of all States under common Article 1 to ensure respect for the Conventions “in all circumstances”.

³⁸ Article 90, para. 3 (a) (i).

³⁹ Ibid.

⁴⁰ ICRC Commentary, para. 3631, p. 1048 and note 41 (Philippe Bretton).Google Scholar

⁴¹ Article 90, para. 3 (a) (ii).

⁴² ICRC Commentary, para. 3632, p. 1048 Google Scholar; Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.18, p. 545.Google Scholar

⁴³ In contrast, the members of the Human Rights Commission and the ad hoc Conciliation Commission established under the International Covenant on Civil and Political Rights are, under Article 43 thereof, entitled to the “facilities, privileges and immunities of experts on mission for the United Nations” as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations, New York, 13 February 1946, 21 U.S.T. 1418, T.I.A.S. No. 6900, 1 U.N.T.S. 16.

⁴⁴ Article 90, para. 3 (b).

⁴⁵ ICRC Commentary, para. 3633, pp. 1048–49.Google Scholar

⁴⁶ Ibid.

⁴⁷ Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.17, p. 545.Google Scholar

⁴⁸ It may be assumed that a special agreement could exclude the right to conduct investigations in loco. Bothe, M., Partsch, K. J. & Solf, W. A., para. 2.20, p. 545.Google Scholar

⁴⁹ Ibid., para. 2.19, p. 545.

⁵⁰ Indeed, Article 90, para. 6 provides that the Commission is to establish its own rules, including rules for the presidency of the Commission and the presidency of the Chamber. Article 90, para. 6 does require that the rules provide that the presidency of a Chamber be filled by a person not a national of a Party to the conflict, not just a party to the enquiry.

⁵¹ E.g., Model Rules of Procedure for United Nations Bodies dealing with violations of human rights (UN Doc. E/CN.4/1134, 1 February 1974), Draft Model Rules of Procedure suggested by the Secretary-General of the United Nations for ad hoc bodies of the United Nations entrusted with studies of particular situations alleged to reveal a consistent pattern of violation of human rights (UN Doc. E/CN.4/1021/Rev.l), Model rules of procedure of United Nations bodies dealing with violations of human rights (ECOSOC res. 1870 (LVI)), and the Belgrade Minimal rules of procedure for international human rights fact-finding missions ( American Journal of International Law, 01 1981, vol. 75, pp. 163–65CrossRefGoogle Scholar, adopted by the 59th Conference of the International Law Association, Belgrade, 23 August 1980). All of these are reproduced as annexes to International Law and Fact-Finding in the Field of Human Rights, The Hague/Boston, Nijhoff, Kluwer, Ramcharan, B.G. ed., 1982.Google Scholar Another detailed set of suggested procedural rules may be found in Franck & Fairley, supra note 21. See also Weissbrodt, D. & McCarthy, J., “Fact-Finding by International Nongovernmental Human Rights Organizations,” Virginia Journal of International Law, Fall 1981, vol. 22, p. 1.Google Scholar

⁵² Article 90, para. 5 (a) and (b).

⁵³ Article 90, para. 5 (a).

⁵⁴ ICRC Commentary, para. 3638, p. 1051.Google Scholar

⁴⁷ Article 90, para. 1 (f).

⁵⁶ Bothe, M., Partsch, K. J. & Solf, W. A., op. cit., para. 2.11, p. 543.Google Scholar

⁵⁷ Article 42, para. 10 of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, U.S. Sen. Ex. C, 95th Cong. 2d Sess., provides that the UN Secretary-General may advance the expenses of the ad hoc Conciliation Commission.

⁵⁸ One commentator mentions only voluntary contributions from States party. Bothe, M., Partsch, K. J. & Solf, W. A., op. cit, para. 2.24, p. 546.Google Scholar The ICRC Commentary, and the original proposals, are silent on this point. ICRC Commentary, para. 3641, pp. 1051–52.Google Scholar

⁵⁹ Bothe, Partsch & Solf criticize this solution as “highly counter-productive” because it may “prevent a State Party from calling in the Commission”. Id., para. 2.25, p. 546.

⁶⁰ Article 90, para. 7.

⁶¹ Kalshoven, F., Constraints on the Waging of War, ICRC, Geneva, 1987, p. 131.Google Scholar