|By Frits Kalshoven
The International Humanitarian Fact-Finding Commission (IHFFC) is an independent, permanent body that owes its existence to Article 90 of Additional Protocol I of 1977. In place since 1991, with its seat and secretariat at Berne, it is at the disposition of parties to armed conflicts that suspect, or are suspected of, serious violations of international humanitarian law (IHL). Although originally created for international armed conflicts, it holds itself capable to function in an internal armed conflict as well; a stance to which no government has objected. The IHFFC considers that it can offer its services to parties to a conflict without having been invited to do so but it will take such a step only if it appears prudent.
It is competent to: (1) inquire into alleged serious violations of IHL; (2) facilitate, through its good offices, the restoration of respect for IHL. The IHFFC regards the two functions as not necessarily linked, enabling it to carry out its good offices function independent of any inquiry (and vice versa). This does justice to their somewhat different orientations: while an inquiry into alleged violations may point in the direction of criminal proceedings, good offices may be conducive not just to the restoration of an attitude of respect for IHL but for the other party as well.
States may accept the competence of the IHFFC in relation to other States doing the same, by depositing a declaration to that effect with the Swiss authorities. At the moment of writing, fifty-three States have made such declarations—many of them European (including from the former Eastern bloc), and one of the UN Security Council’s permanent five, Russia. (Another, the United Kingdom, has announced its intention to do so soon.) A State’s acceptance of IHFFC competence does not bind that State in relation to its opponent or opponents in an internal armed conflict within its territory. The fifteen IHFFC members “of high moral standing and acknowledged impartiality” are elected for five-year terms by the States that have made such declarations. Since the 1996 elections it is composed of eleven Europeans (one from Russia) and four from other continents with the exception of Asia.
For the IHFFC to carry out its functions impartially and effectively requires the consent of the parties involved. This indispensable requirement may at the same time be one of the factors why to this day the IHFFC has remained largely unused.