The jurisdictional hurdle of IAC could perhaps
Posted: Mon Feb 17, 2025 8:40 am
Unfortunately for those advocating an independent international investigation, neither situation appears to be applicable to the conflict in Afghanistan. The IHFFC has ongoing jurisdiction when allegations are made by a state which has ratified AP I and lodged a declaration, in respect of another state which has also ratified AP I and lodged a declaration. Even if one of the 76 signatory states was willing to ‘sponsor’ an inquiry by raising allegations, neither Afghanistan nor the US have completed the required paperwork. Afghanistan has not lodged an Article 90 Declaration and the US is not even a party to AP I.
Alternatively, the IHFFC has ad hoc jurisdiction when a party to the conflict requests an inquiry and all other parties to the conflict give their consent. It does not appear necessary for those parties to have ratified AP I, due to the choice of language in that provision. However, the involvement of the Taliban evokes a more fundamental barrier to the IHFFC’s jurisdiction: the conflict is non-international in nature. The Commission was borne out of AP I, which only applies in IACs. Moreover, according to Article 90(2)(c)(i), it may investigate grave breaches and other serious violations of “the Conventions and this Protocol”, which excludes Additional Protocol II and customary IHL. Thus, the classification of the conflict could preclude jurisdiction.
be satisfied by pointing to facts which “internationalise” the conflict, such as allegations of Pakistan’s covert support of the Taliban. However, it is doubtful whether such support, even if sufficiently proven, would amount to a sufficient level of control over the Taliban’s operations so as to internationalise the conflict under IHL. Another potential internationalising feature could be the involvement of Coalition forces in Afghanistan. Yet, the ability for a NIAC to be transformed into an IAC simply due to the presence of multinational forces remains highly contested. Geiß and Siegrist, for instance, write that a NIAC remains non-international in nature when a multinational force supports another state against armed opposition (p. 14, note 8).
Another possible approach could be to take a more relaxed interpretive approach to jurisdiction, so as to encompass NIACs. Kalshoven observed that “almost from day one” the IHFFC was willing, provided that all parties agreed, to operate in a NIAC, and to apply the entire corpus of IHL. Such an interpretation might be possible by reading the provision for ad hoc jurisdiction broadly, so that the phrase “in other situations” includes NIACs, and is disconnected from the restrictions on applicable law. Proponents might overseas chinese in europe data also point to Common Article 3 to the Geneva Conventions (which provides for minimum protections in NIACs) as evidence of NIAC jurisdiction, seeing as the IHFFC can investigate serious violations of the “Conventions” as a whole. Yet the rules on ad hoc jurisdiction and applicable law remain part and parcel of AP I, which as a whole only applies in IACs. There is also a paucity of state practice to support a possible extension to the IHFFC’s jurisdiction on the basis of customary IHL.
While in theory it might be possible for the US and Afghanistan to consent to an extended version of the IHFFC’s jurisdiction, and it may represent a valuable opportunity to activate the IHFFC, the states are well within their rights to refuse to do so on the basis that it is at odds with the face of AP I. If the wording of article 90(2)(d) is to be respected, consent from the Taliban as a ‘Party to the conflict’ would also need to be secured. The foreseeable resistance to that suggestion might indicate the extent to which Article 90 was drafted with inter-state conflict in mind.
An alternative approach which would avoid those jurisdictional hurdles, and which might allay the concerns of MSF, would be for the states to agree to establish an international fact-finding commission composed of well-respected IHL experts, such as those individuals serving as Commissioners of the IHFFC, without invoking the formal credentials of that body. On a practical level, however, consent is unlikely to be forthcoming, possibly because state officials believe that existing investigations are sufficiently robust, but possibly also for the reasons suggested by Professor Kalshoven.
Alternatively, the IHFFC has ad hoc jurisdiction when a party to the conflict requests an inquiry and all other parties to the conflict give their consent. It does not appear necessary for those parties to have ratified AP I, due to the choice of language in that provision. However, the involvement of the Taliban evokes a more fundamental barrier to the IHFFC’s jurisdiction: the conflict is non-international in nature. The Commission was borne out of AP I, which only applies in IACs. Moreover, according to Article 90(2)(c)(i), it may investigate grave breaches and other serious violations of “the Conventions and this Protocol”, which excludes Additional Protocol II and customary IHL. Thus, the classification of the conflict could preclude jurisdiction.
be satisfied by pointing to facts which “internationalise” the conflict, such as allegations of Pakistan’s covert support of the Taliban. However, it is doubtful whether such support, even if sufficiently proven, would amount to a sufficient level of control over the Taliban’s operations so as to internationalise the conflict under IHL. Another potential internationalising feature could be the involvement of Coalition forces in Afghanistan. Yet, the ability for a NIAC to be transformed into an IAC simply due to the presence of multinational forces remains highly contested. Geiß and Siegrist, for instance, write that a NIAC remains non-international in nature when a multinational force supports another state against armed opposition (p. 14, note 8).
Another possible approach could be to take a more relaxed interpretive approach to jurisdiction, so as to encompass NIACs. Kalshoven observed that “almost from day one” the IHFFC was willing, provided that all parties agreed, to operate in a NIAC, and to apply the entire corpus of IHL. Such an interpretation might be possible by reading the provision for ad hoc jurisdiction broadly, so that the phrase “in other situations” includes NIACs, and is disconnected from the restrictions on applicable law. Proponents might overseas chinese in europe data also point to Common Article 3 to the Geneva Conventions (which provides for minimum protections in NIACs) as evidence of NIAC jurisdiction, seeing as the IHFFC can investigate serious violations of the “Conventions” as a whole. Yet the rules on ad hoc jurisdiction and applicable law remain part and parcel of AP I, which as a whole only applies in IACs. There is also a paucity of state practice to support a possible extension to the IHFFC’s jurisdiction on the basis of customary IHL.
While in theory it might be possible for the US and Afghanistan to consent to an extended version of the IHFFC’s jurisdiction, and it may represent a valuable opportunity to activate the IHFFC, the states are well within their rights to refuse to do so on the basis that it is at odds with the face of AP I. If the wording of article 90(2)(d) is to be respected, consent from the Taliban as a ‘Party to the conflict’ would also need to be secured. The foreseeable resistance to that suggestion might indicate the extent to which Article 90 was drafted with inter-state conflict in mind.
An alternative approach which would avoid those jurisdictional hurdles, and which might allay the concerns of MSF, would be for the states to agree to establish an international fact-finding commission composed of well-respected IHL experts, such as those individuals serving as Commissioners of the IHFFC, without invoking the formal credentials of that body. On a practical level, however, consent is unlikely to be forthcoming, possibly because state officials believe that existing investigations are sufficiently robust, but possibly also for the reasons suggested by Professor Kalshoven.