Section 74p. 74

PUBLIC INTERNATIONAL LAW COMPENDIUM VOLUME II

information

which

should

have

enabled

them

to

conclude in the circumstances at the time, that he was

committing or was going to commit such a breach and if

they did not take all feasible measures within their power

to prevent or repress the breach.

Art 87. Duty of commanders

1. The High Contracting Parties and the Parties to the

conflict shall require military commanders, with respect

to members of the armed forces under their command

and other persons under their control, to prevent and,

where necessary, to suppress and to report to competent

authorities breaches of the Conventions and of this

Protocol.

2. In order to prevent and suppress breaches, High

Contracting Parties and Parties to the conflict shall

require

that,

commensurate

with

their

level

of

responsibility, commanders ensure that members of the

armed forces under their command are aware of their

obligations under the Conventions and this Protocol.

3. The High Contracting Parties and Parties to the conflict

shall

require

any

commander

who

is

aware

that

subordinates or other persons under his control are going

to

commit

or

have

committed

a

breach

of

the

Conventions or of this Protocol, to initiate such steps as

are

necessary

to

prevent

such

violations

of

the

Conventions or this Protocol, and, where appropriate, to

initiate

disciplinary

or

penal

action against violators

thereof.

Art 88. Mutual assistance in criminal matters

1. The High Contracting Parties shall afford one another

the greatest measure of assistance in connexion with

criminal

proceedings

brought

in

respect

of

grave

breaches of the Conventions or of this Protocol.

2. Subject to the rights and obligations established in the

Conventions and in Article 85, paragraph 1 of this Protocol,

and when circumstances permit, the High Contracting

Parties shall co-operate in the matter of extradition. They

shall give due consideration to the request of the State in

whose territory the alleged offence has occurred.

3. The law of the High Contracting Party requested shall

apply

in

all

cases.

The

provisions of the preceding

paragraphs shall not, however, affect the obligations

arising from the provisions of any other treaty of a

bilateral or multilateral nature which governs or will

govern the whole or part of the subject of mutual

assistance in criminal matters.

Art 89. Co-operation

In situations of serious violations of the Conventions or of

this Protocol, the High Contracting Parties undertake to

act jointly or individually, in co-operation with the United

Nations

and

in conformity with the United Nations

Charter.

Art 90. International Fact-Finding Commission

1.

(a)

An

International

Fact-Finding

Commission

(hereinafter referred to as "the Commission") consisting of

15 members of high moral standing and acknowledged

impartiality shall be established;

(b) When not less than 20 High Contracting Parties have

agreed to accept the competence of the Commission

pursuant to paragraph 2, the depositary shall then, and at

intervals of five years thereafter, convene a meeting of

representatives of those High Contracting Parties for the

purpose of electing the members of the Commission. At

the meeting, the representatives shall elect the members

of the Commission by secret ballot from a list of persons

to which each of those High Contracting Parties may

nominate one person;

(c) The members of the Commission shall serve in their

personal capacity and shall hold office until the election

of new members at the ensuing meeting;

(d) At the election, the High Contracting Parties shall

ensure that the persons to be elected to the Commission

individually possess the qualifications required and that,

in the Commission as a whole, equitable geographical

representation is assured;

(e) In the case of a casual vacancy, the Commission itself

shall fill the vacancy, having due regard to the provisions

of the preceding subparagraphs;

(f) The depositary shall make available to the Commission

the

necessary

administrative

facilities

for

the

performance of its functions.

2. (a) The High Contracting Parties may at the time of

signing, ratifying or acceding to the Protocol, or at any

other subsequent time, declare that they recognize ipso

facto and without special agreement, in relation to any

other

High

Contracting

Party

accepting

the

same

obligation, the competence of the Commission to inquire

into allegations by such other Party, as authorized by this

Article;

(b) The declarations referred to above shall be deposited

with the depositary, which shall transmit copies thereof

to the High Contracting Parties;

(c) The Commission shall be competent to:

(i) inquire 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;

(d) In other situations, the Commission shall institute an

inquiry at the request of a Party to the conflict only with

the consent of the other Party or Parties concerned;

(e) Subject to the foregoing provisions or this paragraph,

the provisions of Article 52 of the First Convention, Article

53 of the Second Convention, Article 132 or the Third

Convention and Article 149 of the Fourth Convention shall

continue

to

apply

to

any

alleged

violation

of

the

Conventions and shall extend to any alleged violation of

this Protocol.

3. (a) Unless otherwise agreed by the Parties concerned,

all inquiries shall be undertaken by a Chamber consisting

of seven members appointed as follows:

(i) five members of the Commission, not nationals of any

Party to the conflict, appointed by the President of the

Commission on the basis of equitable representation of

the geographical areas, after consultation with the Parties

to the conflict;

(ii) two ad hoc members, not nationals of any Party to the

conflict, one to be appointed by each side;

(b) Upon receipt of the request for an inquiry, the

President of the Commission shall specify an appropriate

time-limit for setting up a Chamber. If any ad hoc

member has not been appointed within the time-limit,

the President shall immediately appoint such additional

member or members of the Commission as may be

necessary to complete the membership of the Chamber.

4.

(a)

The

Chamber

set

up

under

paragraph

3 to

undertake an inquiry shall invite the Parties to the conflict

to assist it and to present evidence. The Chamber may

also seek such other evidence as it deems appropriate

and may carry out an investigation of the situation in loco;

(b) All evidence shall be fully disclosed to the Parties,

which shall have the right to comment on it to the

Commission;

(c) Each Party shall have the right to challenge such

evidence.

5. (a) The Commission shall submit to the Parties a report

on the findings of fact of the Chamber, with such

recommendations as it may deem appropriate;

(b) If the Chamber is unable to secure sufficient evidence

for factual and impartial findings, the Commission shall

state the reasons for that inability;

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