Editors Note: Following the attack earlier this month in Kunduz on a hospital run by Médecins Sans Frontières, we are today posting two articles on the potential role of the International Humanitarian Fact-Finding Commission (IHFFC) in any investigation. The two posts, the first by Ove Bring (Professor Emeritus of International Law at Stockholm University & Swedish National Defence University, and former member of the IHFFC) and the second by Catherine Harwood (Ph.D. Researcher at the Grotius Centre for International Legal Studies at Leiden University), present different views on the debate regarding the IHFFC’s role.
The horrific attack on 3 October 2015 on a hospital run by Médecins Sans Frontières (MSF) in Kunduz province, Afghanistan, has turned the world’s attention back to the enduring armed conflict in Afghanistan and the need for full and transparent investigations of incidents that ostensibly violate international humanitarian law (IHL). Following the attack, MSF called on the US to “consent to an independent investigation led by the International Humanitarian Fact-Finding Commission (IHFFC) to establish what happened in Kunduz, how it happened, and why it happened.”
The IHFFC, established by Article 90 of Additional Protocol I (1977) to the Geneva Conventions (AP I), is the only permanent international fact-finding body with a specific mandate to investigate violations of IHL. Its President, Dr. Gisela Perren-Klingler, has confirmed that the Commission is ready to undertake an investigation of the attack. Despite its potential value to promote compliance with IHL, the IHFFC has never been used. Back in 2002, Professor Frits Kalshoven questioned whether the Commission had become a ‘Sleeping Beauty’, suggesting that its disuse was due to its independence and the general reluctance of parties to armed conflicts to have the truth about certain facts exposed.
This incident appears at first sight to provide an eminently suitable opportunity to put the Commission to good use. However, this contribution argues that the distinctive contours of the Commission’s jurisdiction, combined with political factors, mean that it is unlikely to be roused from its fact-finding slumber just yet.
The airstrike on MSF’s hospital in the early hours of 3 October 2015 killed 22 people and injured many others. US and Afghan forces had been made aware of the hospital’s location prior to the attack. During the airstrike, MSF’s frantic calls to those in charge appeared to go unheeded, with the attack continuing, it says, for more than half an hour after the first calls were made. President Obama has called the incident a “terrible, tragic accident”, while the High Commissioner for Human Rights described it as “utterly tragic, inexcusable, and possibly even criminal”. MSF President, Dr. Joanne Liu, went further, stating that MSF was “working on the presumption of a war crime”.