|Action by the International Committee of the Red Cross in the Event of Breaches of International Humanitarian Law (International Committee of the Red Cross , 1981, 9 p.)|
The Geneva Conventions of 1949 stipulate that at the request of a party to the conflict, an inquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.1
1 Convention I, art. 52; II, art. 53; III, art. 132; IV, an. 149. (A similar provision was introduced in 1929 in the Convention relating to the wounded and sick.)
This article does not provide for any action by the ICRC, but the institution was nevertheless called upon a number of times to initiate inquiries: in 1936, for instance, when various incidents occurred in the course of the conflict opposing Italy and Ethiopia; in 1943, for the Katyn affair and in 1952, when a request was submitted for an inquiry into the alleged use of bacteriological weapons during the Korean war.
The weakness of the above provision lies in the fact that, in practice, it subjects the opening of an inquiry to consent by the parties involved. Violations committed in times of war raise difficult problems, for States in conflict are highly susceptible and by no means inclined to come to an. understanding. This provision therefore never led to any result. In the last two instances mentioned above, one of the parties did not agree to an inquiry; in the first instance the two States involved had given their consent in principle, but the conflict ended before the procedure even began.
Already in 1939, at the beginning of the Second World War, the ICRC had determined the attitude it would observe in such situations and had made that attitude public. Its position has not varied since. In brief, the ICRC could not open an inquiry on its own initiative; the most it could do would be to take part in the setting up of a commission of inquiry, on request by the parties concerned. The ICRC then would merely make a selection, outside the institution, of persons qualified to form part of that commission.
In fact, the ICRC has never wished to be proposed as a body responsible for such inquiries, because that would be the first step of a judicial procedure, which does not lie within its purview. Moreover, by assuming that role the ICRC would find its neutrality called in question by at least one of the two parties, to the detriment of the unquestionably useful humanitarian activities carried out on that partys territory, and for an illusory result.