The Sleeping Beauty Has Awoken

In June 2024, the International Humanitarian Fact-Finding Commission (IHFFC) announced that it had been mandated to investigate an incident in the Gaza-Israel conflict. Often dubbed “the Sleeping Beauty”, the IHFFC conducted its first investigation in 2017, twenty-six years after its establishment in 1991. Despite being sidelined for almost three decades, the IHFFC has the potential to reinvent itself as a crucial tool for monitoring compliance with international humanitarian law. Recent developments show a shift from a trend of neglect of the international community to a trend of recognition of the IHFFC. This blog post sketches the aim and working method of the IHFFC and shows that as the importance of the IHFFC increases, the question of consensus becomes more significant.

Aim and Working Method of the IHFFC

The IHFFC was established by Art. 90 Additional Protocol I to the Geneva Conventions (AP I), with States aiming to implement a mechanism that could examine compliance with the rules of international humanitarian law. As a permanent international fact-finding body, the IHFFC consists of fifteen members of high moral standing and acknowledged impartiality. In exercising its mandate, the IHFFC upholds its core principles of neutrality, independence, impartiality, and confidentiality. Within this scope, the operational guidelines of the IHFFC are flexible and allow for its services to be individually tailored. While Art. 90 AP I is applicable to international armed conflicts, the IHFFC has expressed its willingness to enquire into alleged violations of international humanitarian law in non-international armed conflicts.

The mandate of the IHFFC is set out in Art. 90 (2)(c) AP I. The IHFFC is competent to enquire into any facts alleged to be a grave breach or other serious violation as defined in the Geneva Conventions and AP I. In addition, the IHFFC is competent to facilitate, through its good offices, the restoration of an attitude of respect for the Geneva Conventions and AP I. A special characteristic of the IHFFC is that it is not a judicial body and does not give its legal evaluation of the matter under scrutiny. Its purpose is limited to establishing facts. The limitation is important for the fulfilment of its mandate, as the IHFFC is not intended to facilitate a ‘blame and shame game’ of the international community or enable the criminal prosecution of violators of international humanitarian law. This would only deter the Parties to the conflict from using its services.

Recent Practice of the IHFFC

The IHFFC conducted its first independent forensic investigation in April 2017 (2017 investigation). The background to the 2017 investigation was an incident that occurred in Eastern Ukraine on April 23, 2017. An explosion had hit an armored vehicle of the Organization for Security and Co-operation in Europe (OSCE) Special Monitoring Mission to Ukraine during a routine patrol, resulting in the death of a paramedic and the injury of two other patrol members. The investigation was able to conduct a post-blast scene forensic and technical assessment in order to establish the facts of the incident in the context of international humanitarian law.

Shifting seven years forward from 2017 to April 2024, the IHFFC has offered its good offices to the governments of Australia, Canada, Palestine, Poland, the UK, and the USA. The background to this was an incident that occurred in the Gaza Strip on April 1, 2024, killing seven aid workers of the aforementioned States in a World Central Kitchen three-car convoy that was targeted by Israeli drones. Poland accepted the offer of good offices of the IHFFC on April 11, 2024. On June 20, 2024, the IHFFC and Poland signed a Memorandum of Understanding (2024 Memorandum). The details of the 2024 Memorandum are not public. The press statements of Poland from June 20, 2024, and the IHFFC from June 21, 2024, provide that the IHFFC will establish the facts of the incident and facilitate the restoration of an attitude of respect for international humanitarian law.

The two mandates of the IHFFC are living examples of its potential. In times of armed conflict, communication between the Parties to the conflict is likely to break down or be characterized by mutual recriminations, making it difficult to agree on the establishment of ad hoc fact-finding bodies. The permanence of the IHFFC allows for the immediate use of its services, which can bring neutrality into the discussion through objectivity. This is particularly useful in incident-related investigations, as incidents typically provide ample grounds for the Parties to the conflict to resort to accusations rather than factual analysis. Adding on to this, the duty of confidentiality of the IHFFC can help build a foundation of trust of the Parties to the conflict and thereby promote their participation in the mandate.

Legal Challenges Relating to Consent

The competence of the IHFFC requires the consent of the Parties to the conflict. Consent can be given either by a general declaration or ad hoc consent. Art. 90 (2)(a) AP I applies to States that have ratified AP I (High Contracting Parties) and provides that a High Contracting Party can recognize, in relation to any other High Contracting Party accepting the same obligation, the competence of the IHFFC to enquire into allegations by such other Party. Art. 90 (2)(d) AP I provides that in other situations, the request of a Party to the conflict and the consent of the other Party or Parties concerned is necessary. The provision applies to all Parties to the conflict and includes States and non-State actors such as international organizations.

One of the legal challenges of the consent mechanism of the IHFFC is that general declarations cannot be reinterpreted as ad hoc consent, as this would “introduce an element of inequality”. Parties to the conflict that have not made general declarations could impose an enquiry onto Parties to the conflict that have made general declarations, while the reverse would not be possible. This means that whenever an enquiry is initiated under Art. 90 (2)(d) AP I, ad hoc consent of all Parties to the conflict is required. This applies to the 2017 investigation, as the enquiry was requested by the OSCE and not by a High Contracting Party. While it is not known whether Ukraine gave its ad hoc consent, this can be assumed since the investigation was carried out in Ukraine.

In the 2024 mandate, the consent requirements also leave room for interpretation. Israel has taken responsibility for the incident, meaning that the allegations related to the incident are directed against Israel. However, Israel is not a High Contracting Party, nor has it made a general declaration under Art. 90 (2)(a) AP I. The competence of the IHFFC would thus have to derive from Art. 90 (2)(d) AP I. This requires the ad hoc consent of the Parties concerned. Under the definition of the IHHFC, “[a] Party to the conflict is concerned if it is directly implicated in the incident or the facts in question. In all cases, the consent of the Parties to the conflict in the quality of territorial State, the alleged author of the violation and the alleged victim of the violation are required”.

The consent of Israel and Palestine was necessary, with Israel having taken responsibility for the incident and the drone strike having occurred in the Gaza Strip. Given that the incident involved seven victims of different nationalities who were all working for the non-governmental organization World Central Kitchen, the question arises as to whose consent was necessary for the ‘alleged victim of the violation’.

The practice of the IHFFC can provide insight into this question. In the 2024 mandate, the IHFFC offered its good services to the States whose nationals were killed in the incident, but not to World Central Kitchen. The IHFFC signed the 2024 Memorandum after one State, Poland, had accepted the offer of its good offices. In the 2017 investigation, the IHFFC made no reference to the nationality of the victims, and instead referred to the victims only in their affiliation with the OSCE. The IHFFC established the investigation following the request of the OSCE. This suggests that the IHFFC views the ‘alleged victim of the violation’ to be either the organization with which the victim was affiliated or the State whose national was a victim in the incident.

The question arises as to whether this flexible approach of the IHFFC is in line with Art. 90 (2)(d) AP I. From a practical perspective, an investigation into an incident with multiple victims will likely involve all victims. This could speak in favor of requiring the consent of all alleged victims of the violation. However, the adoption of such a narrow interpretation is not required to meet the protective purpose of the consent requirements of Art. 90 (2)(d) AP I. The consent requirements of the ‘alleged author of the violation’ and the ‘territorial State’ where the incident occurred ensure procedural fairness and State sovereignty. Both of these protective purposes are politically highly sensitive and therefore require the consent of the affected Party itself. In contrast, the standards for the consent requirement of the ‘alleged victim of the violation’ are lower. The protective purpose here is to ensure that the rights and interests of the victims are represented. For this purpose, the consent of a single victim is sufficient, as this can represent the rights and interests of all victims. Therefore, in the 2024 mandate, the consent of Poland was sufficient. This approach reflects the reality of today’s armed conflicts, where incidents involving victims of different nationalities and affiliations are likely the norm rather than the exception.

At the time of writing, it remains uncertain whether the requirements for ad hoc consent under Art. 90 (2)(d) AP I are met. While Poland has clearly given its consent, it is not known whether this also applies to Israel and Palestine.

Conclusion

Being a consent-based mechanism, the greatest challenge of the IHFFC is to obtain the consent of the Parties to the conflict. The strengths of the IHFFC suggest that its consent may be easier to obtain than that of other bodies of international law with broader mandates involving legal evaluations and prosecutions. At the same time, the examination of the 2017 investigation and the 2024 mandate has made it clear that each armed conflict and its incidents present unique complexities. This indicates that future mandates of the IHFFC are likely to involve consent structures that are unpredictable and require an interpretation of Art. 90 (2)(a) and (d) AP I. This sets the stage for the development of an – awakening – legal discussion.