4. The Post-1945 Conventions: Humanitarian, Monitoring and Fact-Pinding Tasks

The 1949 Geneva Conventions put considerable, perhaps too much, emphasis on that long-established diplomatic institution, the Protecting Power, as a means of ensuring implementation of their terms during armed conflicts. Pictet defines a Protecting Power thus:

"A Protecting Power is, of course, a State instructed by another State (known as the Power of Origin) to safeguard its interests and those of its nationals in relation to a third State (known as the State of Residence). It will be seen at once that the activities of a Protecting Power are dependent on two agreements: the first between the Power of Origin and the Protecting Power and the second between the Protecting Power and the State of Residence".

The 1977 Geneva Protocol I, Article 2(c), offers the following definition for the purposes of the Protocol:

"'Protecting Power' means a neutral or other State not a Party to the conflict which has been designated by a Party to the conflict and accepted by the adverse Party and has agreed to carry out the functions assigned to a Protecting Power under the Conventions and this Protocol".

The 1949 Geneva Convention IV makes extensive provision for Protecting Powers to look after the interests of civilians, including in occupied territory. Protecting Powers have a general duty to protect the interests of the parties to the conflict; they are to lend their good offices in cases of disagreement either about the interpretation of the Convention or about its application; they can facilitate the establishment of hospital and safety zones and localities; they are to be informed of any transfers or evacuations in or from occupied territory; they can verify the state of food and medical supplies in occupied territories; they must be informed of all charges instituted by the occupant against protected persons involving the death penalty or sentences of two years or more, and they have various other rights and duties as regards legal proceedings; they can supervise the distribution of collective relief shipments to internees; and they can go to all places where protected persons are, particularly to places of internment, detention and work. In addition, Protecting Powers have responsibilities regarding the observance of the 1954 Cultural Property Convention; and are the subject of numerous detailed provisions in the 1977 Geneva Protocol I.

The 1949 Geneva Conventions do allow for the possibility that the Protecting Power arrangements might fail to come into operation. A common Article in all four conventions provides that certain organizations can assume all the functions of the Protecting Powers. Such a substitute may be, by agreement between the parties, "an organization which offers all guarantees of impartiality and efficacy"; failing this, in exceptional circumstances it may be a neutral state appointed by the Detaining Power; failing this, a humanitarian organization such as the ICRC may assume, if not all the traditional functions of the Protecting Power, at least the humanitarian functions performed by Protecting Powers under the 1949 Conventions.

Quite separately from the provisions regarding Protecting Powers, the 1949 Geneva Convention IV leaves much scope for activities by impartial humanitarian organizations such as the ICRC, which is mentioned in no less than 22 of its 159 articles.

In practice, the various formal provisions for the role of Protecting Powers have been of little use, because states in conflict with each other have almost always been unwilling or unable to agree on the appointment of such Powers. Many writers have pointed to the weaknesses of the Protecting Powers arrangements, depending as they do on a tripartite consensual basis. Yet there have been some cases of Protecting Powers having a role during armed conflicts, albeit in a manner different from what the conventions envisaged. They were used, for example, in the 1971 India-Pakistan War, in which one Protecting Power acted on behalf of both sides in a conflict, representing each to the other; and in the 1982 Falklands War, in which the duties of the Protecting Powers were mainly general diplomatic representation, rather than the exercise of humanitarian functions under the Geneva Conventions.

In most conflicts, it has been the ICRC which has borne the heat and burden of the day. ICRC representatives have actually carried out most of the various humanitarian and monitoring tasks provided for in the Geneva Conventions; this has been so even in cases where Protecting Powers have been appointed to look after certain interests of the belligerents.

A further mechanism aimed at securing implementation of the Geneva Conventions is the International Humanitarian Fact-Finding Commission. 1977 Geneva Protocol I, Article 90, provides for the establishment on a permanent basis, with periodic elections, of an International Fact-Finding Commission to:

"(i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this Protocol;

(ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol ".

The International Humanitarian Fact-Finding Commission has in fact been set up. Under the terms of Art. 90(1)(b), which stipulated that it could only be established when twenty states agreed to accept its competence, the Commission, which has fifteen members, was duly elected at a meeting in Bern in June 1991. At its second meeting, in July 1992, the Commission unanimously adopted the final draft of its rules of procedure, and became operational. Since then it has done some preparatory work, not least, in the delicate words of its President, trying "to draw the international community's attention to its avaiblity.

An inquiry can be set up in two situations, both of which depend on states to take an initiating role. First, a party to a conflict can request an inquiry, which can only be established with the consent of the other party or parties concerned; or secondly, a state having accepted the automatic competence of the Commission makes an allegation against another state which has likewise previously accepted the Commission's competence. So far, there is no evidence that states will use this new mechanism. Franse Hampson has written:

"As experience with the Geneva Conventions has shown, the mere existence of a fact-finding mechanism does not mean that it will be used. The challenge is there. It remains to be seen whether States will rise to meet it".

Why, in its three years of existence, has use not been made of the International Humanitarian Fact-Finding Commission? One part of the problem is the continuing reluctance of many states to make a declaration accepting its competence. As of 30 June 1995, of the 138 states parties to 1977 Protocol I, 46 had made a declaration accepting the competence of the Commission. A more fundamental problem may be the reluctance of states, including those which have accepted the Commission's competence, to invoke its services in view of the fact it may have to deal with issues as sensitive as the applicability of the Conventions, and the characterization of particular acts as "grave breaches " or "serious violations".

The relevance of the Fact-Finding Commission is above all called into question by the fact that in the years since it was established the UN Security Council has established ad hoc mechanisms for investigating and taking action regarding violations, most notably in connection with the wars in the former Yugoslavia and Rwanda. Indeed, Erich Kussbach has gone so far as to say: "After a long period of inability to act, the Security Council has seemingly become the master of collective security and apparently is about to take over, step by step, the responsibility for the administration of humanitarian law. The future will show how the Security Council will be able to cope with its heavy responsibilities". Although his optimism about a UN system of collective security is open to serious criticism, the ad hoc arrangements under UN Security Council auspices do have many advantages over the Commission: it is not necessary for individual states to initiate the process; states or other entities can be investigated irrespective of whether they have accepted the competence of the Commission; the relevant body of law to be applied can be identified separately in each instance, and can thus be appropriate to the particular conflict and the facts alleged; the range of problems and situations which can be investigated is therefore greater, since it is not limited to clear cases of international armed conflict; there are fewer obstacles to publication of the outcome of an investigation; and the fact-finding process can be linked to action in the form of prosecutions. Once again, implementation in practice has assumed forms significantly different from what the conventions provide.