Abstract
Temporary commissions of inquiry have become more prominent over the past decade, with their establishment particularly noticeable in the context of the Arab Spring. Along with their increased prominence they have also displayed certain features of an adjudicative nature. Although primarily established as fact-finding bodies, their mandates now regularly include making assessments as to potential violations by particular entities of international human rights law and international humanitarian law. This chapter examines the impact that commissions of inquiry as temporary creations have had upon international law and, more specifically, upon international legal adjudication, in particular the traditional formality of international legal adjudication, the principle prohibiting intervention in the internal affairs of states, and procedural fairness. While the temporariness of commissions of inquiry is in many ways unproblematic, this chapter identifies certain problems and examines the possibilities for the establishment of a permanent commission as a means to rectify some of the issues associated with their current temporary nature.
Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.
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Notes
- 1.
Merrills 2011, at 41–42.
- 2.
See Sect. 11.2 for more on the different forms that CoIs have taken.
- 3.
CoIs have been established in the context of the uprisings in Bahrain, Libya, and Syria.
- 4.
The IHFFC was established in Article 90 of 1977 Additional Protocol I to the 1949 Geneva Conventions, 1125 UNTS 3.
- 5.
UNSC Res. 1564, 18 September 2004, para 12.
- 6.
Situation of Human Rights in the Libyan Arab Jamahiriya, UN Doc. A/HRC-S/15/1, 25 February 2011, para 11.
- 7.
Situation of Human Rights in the Syrian Arab Republic, UN Doc. A/HRC-S/17/1, 22 August, 2011, para 13.
- 8.
Situation of Human Rights in the Democratic People’s Republic of Korea, UN Doc. A/HRC/RES/22/13, 21 March 2013, para 4.
- 9.
This article consciously excludes reports issued by non-governmental organisations, such as Human Rights Watch, as its focus will be upon CoIs in which states have been involved in their creation.
- 10.
Merrills 2011, at 41–42. They were, by contrast, focused almost exclusively on the disagreement over the interpretation of evidence.
- 11.
Ibid., at 42.
- 12.
The 1899 Convention for the Pacific Settlement of Disputes, 1 Bevans 230, at 230. See also ibid. While this article will generally employ the term ‘commissions of inquiry’ there does not appear to be any generally distinguishing features of these bodies from ‘fact-finding’ missions.
- 13.
Merrils 2011, at 44.
- 14.
Ibid., at 47.
- 15.
Ibid.
- 16.
Ibid., at 46.
- 17.
Ibid., at 50.
- 18.
Ibid., at 52.
- 19.
Ibid., at 53.
- 20.
For more on contemporary CoIs see further in this section.
- 21.
Merrills 2011, at 53.
- 22.
See Sect. 11.3.1.
- 23.
Oxford English Dictionary, http://www.oed.com (emphasis added). Accessed 15 July 2014.
- 24.
See Buchan 2014.
- 25.
Alvarez 2005, at 516.
- 26.
See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 1 February 2005, at para 14.
- 27.
Alvarez 2014, at 159.
- 28.
Ibid., at 169.
- 29.
Ibid.
- 30.
During this period not a single CoI has been established to provide a medium for dispute settlement between states. Even the CoI on Israel’s forcible intervention in Lebanon in 2006 examined only the actions of Israel and their impact upon civilians. See Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution S-2/1, UN Doc. A/HRC/3/2, 23 November 2006. See also, generally, Stewart 2007. Perhaps the closest one might come to finding such an inter-state dispute settlement function in a contemporary CoI, particularly given the fact that the CoI itself determined the conflict to be of an international nature, is the CoI on the Gaza conflict of 2008/09 in which the commission was mandated to investigate all violations of international humanitarian law and international human rights law during this conflict. See Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009. See also, generally, Yihdego 2012.
- 31.
Buchan 2014, at 496.
- 32.
UNSC Res. 1564, 18 September 2004, at para 12. Frulli notes that this a good example of an ‘accountability driven mandate’. Frulli 2012, at 1329. See also the mandate for the CoI on the Gaza conflict: Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009.
- 33.
In the Barcelona Traction case the protection of human rights was characterised by the ICJ as an obligation erga omnes, thus making their protection a concern of all states. See Case concerning Barcelona Traction, Light and Power Company Ltd (Belgium v. Spain), ICJ, Merits, Judgment of 5 February 1970, at 32.
- 34.
The concept was first introduced in Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, December 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf. Accessed 15 July 2014. For a comprehensive examination of its contours, see, generally, Knight and Egerton 2012.
- 35.
In this respect, ‘[t]he UN, moving beyond traditional fact-finding, has begun to entrust commissions of inquiry with the search for evidence of IHL violations and with a prima facie evaluation of the facts based on international legal parameters, so as to ensure accountability for serious IHL violations and other international crimes.’ Frulli 2012, at 1328–1329.
- 36.
See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 1 February 2005, paras 74–76.
- 37.
Ibid., paras 142–174.
- 38.
As pointed out by Akande and Tonkin 2012.
- 39.
See, for example, Report of the Independent Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1, 23 November 2011, paras 84–100.
- 40.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 1 February 2005, section 2.
- 41.
Frulli 2012, at 1327.
- 42.
Akande and Tonkin 2012.
- 43.
Alvarez 2014. In respect to the final of these functions, governance, Alvarez has stated that ‘[w]hether or not adjudicators resort to normative policy judgments, their clarifications of law and fact serve a governance function by reducing uncertainty within distinct regimes as well as within states.’ Ibid., at 176. As the above description of some of the work of contemporary CoIs demonstrates, this is a function which they have also arguably performed.
- 44.
Frulli describes this as ‘prosecution oriented fact-finding’. Frulli 2012, at 1330.
- 45.
The CoI on Dafur stated that ‘it would make an assessment of possible suspects that would pave the way for future investigations, and possible indictments, by a prosecutor.’ See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 1 February 2005, para 15. This resulted in ‘the issuance of an authoritative determination of serious IHL violations that prompted the Security Council to refer the situation to the ICC.’ Frulli 2012, at 1329.
- 46.
The Porter Commission, chaired by Justice David Porter, was a CoI established by the Ugandan government in 2001 and issued its findings in May 2003. The ICJ found the CoI’s factual findings particularly reliable due to the standards employed by the CoI and the testimony of Ugandan officials. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ, Judgment of 19 December 2005.
- 47.
These CoIs were established by the UNSC pursuant to UNSC Res. 780, 6 October 1992 and UNSC Res. 935, 1 July 1994, respectively.
- 48.
- 49.
See UNSC Res. 827, 25 May 1993; and UNSC Res. 955, 8 November 1994, and associated annexes.
- 50.
See the Public Commission to Examine the Maritime Incident of 31st May 2010, January 2011, http://www.turkel-committee.com/index.html. Accessed 15 July 2014. There was widespread criticism of the Turkel Commission as a tool to justify the raid and the blockade of Gaza. See The public has a right to know: The government’s efforts to avoid a thorough and credible investigation of the flotilla affair seem more and more like a farce, Haaretz, 13 June 2010, http://www.haaretz.com/print-edition/opinion/the-public-has-a-right-to-know-1.295797. Accessed 15 July 2014.
- 51.
Akande and Tonkin 2012. See, in general, Bahrain Independent Commission of Inquiry, 23 November 2011, http://www.bici.org.bh/. Accessed 15 July 2014.
- 52.
Frulli 2012, at 1332–1337.
- 53.
Ibid., at 1335–1336.
- 54.
Akande and Tonkin 2012. The UN Secretary-General established the Palmer Committee on the Israeli blockade on Gaza and the Sri Lanka Panel of Experts, among others.
- 55.
In particular, CoIs in Rwanda, Yugoslavia, and Darfur.
- 56.
See http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090615/debtext/90615-0004.htm. Accessed 15 July 2014.
- 57.
See Statement of Sir John Chilcot, Chairman of the Iraq Inquiry, at a news conference on Thursday, 30 July 2009, http://www.iraqinquiry.org.uk/about/statement.aspx. Accessed 15 July 2014.
- 58.
However, given that its report is only expected in 2014 the extent of its ultimate focus upon the legal issues awaits to be seen.
- 59.
UNHRC Res. S-17/1, 23 August 2011, para 13 (emphasis added).
- 60.
See 1st report of the Commission of Inquiry on the Syrian Arab Republic, UNHRC Res. S-17/2/Add.1, 23 November 2011.
- 61.
See Sect. 11.3.3.
- 62.
The grave violations of human rights in the Occupied Palestinian Territory, particularly due to the recent Israeli military attacks against the occupied Gaza Strip, UNHCR Res. S-9/1, 12 January 2009, para 14 (emphases added).
- 63.
Frulli 2012, at 1334, note 37.
- 64.
See Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009 (emphasis added). For a comprehensive analysis, see, in general, Yihdego 2012.
- 65.
See, in general, Yihdego 2012.
- 66.
Although as the CoI on Lebanon demonstrates, a power to rebalance the mandate is one that is not always exercised.
- 67.
- 68.
- 69.
For example, Antonio Cassese was a part of the CoI on Darfur while Richard Goldstone chaired the CoI on the Gaza conflict.
- 70.
Carla del Ponte was former Chief Prosecutor of two United Nations international criminal tribunals while Vitit Muntarbhorn is an international law professor.
- 71.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), ICJ, Jurisdiction and Admissibility, Judgment of 26 November 1984, para 202.
- 72.
See, for example, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, UNGA Res. 2131 (XX), 21 December 1965, para 1; Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 24 October 1970, annex; Article 19 of the 1948 Charter of the Organization of American States, 119 UNTS 3.
- 73.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), ICJ, Jurisdiction and Admissibility, Judgment of 26 November 1984, at para 205; Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, UNGA Res. 2131 (XX), 21 December 1965, paras 1–2, 5; Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 24 October 1970, annex, para 1, principle 3.
- 74.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), ICJ, Jurisdiction and Admissibility, Judgment of 26 November 1984.
- 75.
Henderson 2013, at 647.
- 76.
In the case of these tribunals the UNSC in the respective establishing Chapter VII resolutions had ‘decided’ that all states shall cooperate fully with the tribunal. See UNSC Res. 827. 25 May 1993, at para 4; and UNSC Res. 955, 8 November 1994, para 2, respectively. Article 13(b) of the 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90, also makes clear that the ICC may exercise its jurisdiction if ‘[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations’. The principle of non-intervention found in Article 2(7) UN Charter ‘shall not prejudice the application of enforcement measures under Chapter Vll.’
- 77.
Akande and Tonkin 2012.
- 78.
Ibid.
- 79.
The CoI in Syria, for example, made several recommendations, including putting an end to gross human rights violations, initiating prompt independent and impartial investigations, and allowing access by the Commission and outside observers. See Report of the Independent Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1, 23 November 2011, Section 6.
- 80.
Although as the CoI on the Gaza conflict demonstrated, this is not often the case.
- 81.
See UNSC Res. 827, 25 May 1993; and UNSC Res. 955, 8 November 1994.
- 82.
Akande and Tonkin 2012.
- 83.
See UNSC Res. 1636, 31 October 2005, para 11.
- 84.
Bassiouni 2001, at 40.
- 85.
Articles 39–64 of the 1945 Statute of the International Court of Justice, 1 UNTS 993; Articles 53–61 of the 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90.
- 86.
Updated Statute of the International Criminal Tribunal for the former Yugoslavia, as last amended by UNSC Res. 1877, 7 July 2009; Updated Rules of Procedure and Evidence, IT/32/Rev. 44, 10 December 2009; Statute of the International Criminal Tribunal for Rwanda, UNSC Res. 955, 8 November 1994; and Rules of Procedure and Evidence, MICT/1, 8 June 2012 .
- 87.
See, for example, Kaufman 1969; Guidelines on international human rights fact-finding visits and reports, 1 June 2009, http://www.unhcr.org/refworld/docid/4a39f2fa2.html. Accessed 15 July 2014.
- 88.
Bassiouni 2001, at 48.
- 89.
- 90.
Report of the Independent Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1, 23 November 2011, para 5.
- 91.
See http://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/AboutCoI.aspx. Accessed 15 July 2014.
- 92.
Report of the Independent Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1, 23 November 2011, para 5.
- 93.
Ibid.
- 94.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 1 February 2005, para 15.
- 95.
Ibid., para 15.
- 96.
Ibid.
- 97.
Ibid.
- 98.
See, for example and in general, Report of the Independent Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1, 23 November 2011.
- 99.
Akande and Tonkin 2012. As Akande and Tonkin further note, this consideration is perhaps necessary as CoIs ‘often take statements from a large number of complainants and witnesses, some use subpoena powers and powers of search and seizure, and they may have privileged access to relevant sources and the ability to speak freely as a result of the immunity conferred upon them.’ Ibid.
- 100.
Bassiouni notes that ‘[t]hese missions seldom have the resources or the ability to do effective field work or empirical research. Consequently, they rely heavily on the NGOs, government reports, and the media. Many rapporteurs, or whatever their actual designation may be, produce reports even though they never set foot in the territory where their investigation takes place.’ Bassiouni 2001, at 42. Boutruche has noted that ‘[p]hysical, financial and human resources are … a prerequisite for a fact-finding body to carry out its work in optimal conditions.’ Boutruche 2011, at 118.
- 101.
This is not to say, however, that other mechanisms of adjudication are necessarily well funded.
- 102.
- 103.
For more on R2P, see Knight and Egerton 2012.
- 104.
2005 World Summit Outcome Document, UNGA Res. A/60/L.1, 15 September 2005, para 139.
- 105.
See Sect. 11.4.
- 106.
Cassese 2012, at 297.
- 107.
See, in general, Kalshoven 2002.
- 108.
Furthermore, in the contemporary context the revitalisation of the IHFFC would not provide a comprehensive solution to situations as we have witnessed in the Arab Spring, given its sole focus on issues of IHL but with the blurring that has occurred in these uprisings between civil disturbances and civil wars.
- 109.
See 2005 World Summit Outcome Document, UNGA Res. 60/1, 24 October 2005, paras 138–139.
- 110.
Franck and Fairley 1980, at 312.
- 111.
Cassese 2012, at 297.
- 112.
See Boutruche 2011, at 117–120.
- 113.
Bassiouni 2001, at 48.
- 114.
As Bassiouni states, ‘there is no way of comparing the results of different, though substantively similar, missions. This principle applies equally well to ongoing missions that produce multiple reports, where it is at times difficult to compare working methods pursued during the mission and the results they produce.’ Ibid., at 41.
- 115.
Ibid.
References
Akande D, Tonkin H (2012, April 6) International commissions of inquiry: a new form of adjudication? EJIL Talk! www.ejiltalk.org/international-commissions-of-inquiry-a-new-form-of-adjudication/. Accessed 10 July 2014
Alvarez A (2005) International organizations as law-makers. Oxford University Press, Oxford
Alvarez A (2014) What are international judges for? The main functions of international adjudication. In: Romano C, Alter K, Shany Y (eds) The Oxford handbook of international adjudication. Oxford University Press, Oxford, pp 158–178
Bassiouni MC (2001) Appraising UN Justice-related fact-finding missions. J Law Policy 5:35–49
Boutruche T (2011) Credible fact-finding and allegations of international humanitarian law violations: challenges in theory and practice. J Confl Secur Law 16:105–140
Buchan R (2014) The Mavi Marmara incident and the application of international humanitarian law by quasi-judicial bodies. In: Jinks D, Maogoto J, Solomon S (eds) Applying international humanitarian law in judicial and quasi-judicial bodies: international and domestic aspects. TMC Asser Press, The Hague, pp 479–503
Cassese A (2012) Fostering increased conformity with international standards: monitoring and institutional fact-finding. In: Cassese A (ed) Realizing utopia: the future of international law. Oxford University Press, Oxford, pp 295–303
Franck TM, Fairley HS (1980) Procedural due process in human rights fact-finding by international agencies. Am J Int Law 74:308–345
Frulli M (2012) Fact-finding or paving the road to criminal justice: some reflections on United Nations commissions of inquiry. J Int Crim Justice 10:1323–1338
Heller KJ (2014, forthcoming) The International Commission of Inquiry on Libya: a critical analysis. In: Meierhenrich J (ed) International commissions: the role of commissions of inquiry in the investigation of international crimes. Oxford University Press, Oxford
Henderson C (2013) The provision of arms and ‘non-lethal’ assistance to governmental and opposition forces. Univ NSW Law J 36:642–681
Kalshoven F (2002) The International Humanitarian Fact-Finding Commission: a sleeping beauty. HV 4:213–216
Kaufman B (1969) The necessity for rules of procedure in ad hoc United Nations investigations. Am Univ Law Rev 18:739–768
Knight WA, Egerton F (eds) (2012) The Routledge handbook of the responsibility to protect. Routledge, Abingdon
Merrills JG (2011) International dispute settlement, 5th edn. Cambridge University Press, Cambridge
Stewart JG (2007) The UN Commission of Inquiry on Lebanon: a legal appraisal. J Int Crim Justice 5:1039–1059
Wilkinson S (29 April 2011) Standards of proof in international humanitarian and human rights fact-finding and inquiry missions. Geneva Academy of International Humanitarian Law and Human Rights in close cooperation with Geneva call. http://www.geneva-academy.ch/docs/reports/Standards%20of%20proo%20report.pdf. Accessed 10 July 2014
Yihdego Z (2012) The Gaza mission: implications for international humanitarian law and UN fact-finding. Melb J Int Law 13:1–59
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Henderson, C. (2015). Commissions of Inquiry: Flexible Temporariness or Permanent Predictability?. In: Ambrus, M., Wessel, R. (eds) Netherlands Yearbook of International Law 2014. Netherlands Yearbook of International Law, vol 45. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-060-2_11
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