© T.M.C. Asser Press and the authors 2015Mónika Ambrus and Ramses A. Wessel (eds.)Netherlands Yearbook of International Law 2014Netherlands Yearbook of International Law4510.1007/978-94-6265-060-2_11
11. Commissions of Inquiry: Flexible Temporariness or Permanent Predictability?
University of Liverpool, Merseyside, UK
11.3.3 Procedural Fairness
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.
KeywordsFact-finding commissions of inquiryAdjudicationNon-interventionProcedural fairnessArab Spring
Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.
Commissions of inquiry (CoIs) are bodies established on a temporary basis to undertake fact-finding missions in order to offer some form of judgment or conclusion upon particular incidents of the use of force, armed conflict, or alleged human rights violations. As a concept they are not a new phenomenon and can be traced back to the Maine inquiries of 1898, which were established by both the US and Spain following an explosion on a US battleship.1 Since that time they have taken on various incarnations from pure fact-finding bodies to providing a form of legally binding arbitration.2 However, there has recently been a discernible rise in their utilisation, in particular in the context of the Arab Spring.3 These contemporary CoIs, while not producing legally binding outcomes, nonetheless carry out various adjudicative functions, from determining applicable legal frameworks and the scope of the legal rules and norms in question to determining whether particular acts amount to violations of these rules and norms.
Given the incident-specific context in which they operate, the temporariness of CoIs seems at first glance to be an inherent and necessary feature. Yet, in certain other institutional legal contexts there has been a move—and some might say a natural and logical one—away from temporary institutions to those of a permanent nature. The establishment of the permanent International Criminal Court (ICC), which followed the temporary context-specific precedents of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), is an obvious example of this. However, CoIs have, in many respects, demonstrated a shift away from an under-utilised permanent body—the International Humanitarian Fact Finding Commission (IHFFC) that was established in 1977 but which has rarely been utilised since4—to the increasingly frequent establishment of those of a temporary nature, such as in Darfur,5 Libya,6 Syria,7 and North Korea.8 Today, CoIs, whether established by states, regional organisations, or by the various organs of the United Nations,9 offer what may be the only, or at least most formal, treatment of the legal issues raised in the context of a particular conflict or crisis, and perhaps represent an important shift in the modus operandi of the international community in seeking at least some accountability for violations of international law.
The central purpose of this chapter is to examine the impact that CoIs as temporary creations have had upon international law and, more specifically, upon international legal adjudication. After setting out their contemporary function as temporary adjudicative bodies of international law, it identifies and examines three areas of international legal adjudication which are perhaps most sensitive to impact through the emergence and utilisation of CoIs. These are the traditional formality of international legal adjudication, the principle prohibiting intervention in the internal affairs of states, including the consensual basis for international adjudication, and finally, procedural fairness. While the temporariness of the commissions is unproblematic from many perspectives, certain identifiable problems nonetheless arise. This chapter lastly examines the possibilities for the establishment of a permanent CoI as a means to rectify some of the issues associated with their current temporary nature.
11.2 Commissions of Inquiry as Temporary Adjudicative Bodies of International Law
It is hard to find elements of a legally adjudicative nature within the Maine inquiries of 1898, which are regarded as the first CoIs, whether in their mandates, personnel, or outcomes.10 However, they ‘sufficiently impressed the delegates to the Hague Peace Conference of 1899 for them to give serious attention to the issue of fact-finding in international disputes.’11 Indeed, following on from these formative CoIs of a purely fact-finding nature, and in an initial attempt to provide some form of regulation to them, the 1899 Hague Convention for the Peaceful Settlement of Disputes envisaged such inquires to be used for disputes of fact and not questions of law and that their findings should not be obligatory.12 However, CoIs have nonetheless generally shifted from pure fact-finding bodies to providing at least some form of legal adjudication, even if not often of a legally binding nature. This shift did not take long to manifest itself as in the Dogger Bank inquiry of 1904, which involved a naval dispute between England and Russia,
[T]he duty to apportion ‘blame’ appeared to assign the Commission an arbitral as well as a fact-finding function. The admirals who made up the Commission, no doubt wisely, sought to underplay this aspect of their work and in a decision of somewhat ambiguous legal import, demonstrated what later experience was to confirm, that in the interests of dispute settlement, legal and factual issues need not always be sharply distinguished.13
While for many years these CoIs were, as in the Dogger Bank inquiry, composed almost exclusively of naval officers, the Tubantia inquiry 1921 between Germany and the Netherlands was the ‘first case in which a commission of inquiry had included a lawyer among its members’14 and, despite the parties not accepting the commission’s report as binding, was ‘also notable for the extent to which the proceedings resembled arbitration’.15 The Tiger inquiry of 1917, between Germany and Norway, was the first CoI in which the report was accepted as binding upon the parties.16 Things developed further with the Red Crusader inquiry of 1961 involving Denmark and Great Britain as
in respect of its composition, its procedure and its findings the … Commission was a fundamentally judicial operation. A majority of the Commission were jurists and had the tribunal been a court of arbitration its blend of legal and non-legal expertise would have been in no way unusual.17
As in the Red Crusader, the task given to the Letelier and Moffitt CoI of 1988 between the US and Chile ‘was essentially judicial and this was reflected in all stages of its work.’18 For example, ‘it is notable that the Compromis specifically required the Commission to give its decision “in accordance with applicable principles of international law”’ and that ‘[t]he Commission’s decision, like the report in the Red Crusader, included several important legal rulings, as well as numerous findings of fact.’19 Indeed, ‘the Commission which was eventually set up functioned less as an inquiry commission’—of the traditional type and like that that are in existence today20—and ‘more like a court of arbitration, producing a binding decision and deciding issues of law as well as fact.’21 It was, in essence, a notable departure from the concept and function of the CoI as envisaged in the 1899 Hague Convention, manifesting a discernable shift in their nature from being non-legal and non-binding bodies towards operating increasingly like courts of law, albeit of a temporary nature, arbitrating disputes between two states.
Contemporary CoIs, however, and particularly those of the past 10 years, have led to another reshaping of our understanding of the nature and function of CoIs. Objections might immediately be raised to describing these CoIs, as with those described above, as ‘adjudicative’ bodies or mechanisms on the basis that they are not formally established judicial bodies. Yet, while the commissioners of some contemporary CoIs have included judges,22 to claim that CoIs cannot represent a new form of legal adjudication upon this basis would seem unduly restrictive. The Oxford English Dictionary, for example, imposes no such boundaries, stating only that adjudication is ‘an act of determining, settling, or awarding something judicially, or by a similar legal or official process’.23 In this respect it is significant that CoIs have been described as ‘quasi-judicial bodies’ in the context of international adjudication,24 with Alvarez drawing little distinction between ‘judicial’ and ‘quasi-judicial’ bodies.25 The CoI on Darfur itself stated that ‘in classifying the facts according to international criminal law, the Commission adopted an approach proper to a judicial body.’26
It is also perhaps important to address the function and process of CoIs, as opposed to their personnel. It was on this basis that Merrills described many of the earlier CoIs above as ‘judicial’. In this respect, however, modern CoIs rarely offer a dispute settlement function between states, as did the earlier CoIs above, and certainly not of an arbitral nature. Yet, this again is not decisive as to their adjudicative nature. For example, in the chapter of the Oxford Handbook of International Adjudication which examines ‘the main functions of international adjudication’, it is acknowledged that international adjudication is often portrayed as ‘interstate dispute settlers engaged in avoiding or deterring threats to the peace’.27 However, it is also acknowledged that this ‘does not really describe, for example, the functions of international criminal courts (which pits a prosecutor, who might be seen as a representative of the international community, against an individual), [or] regional human rights courts (which consider whether states have abused individual rights)’.28 Indeed, ‘[i]nternational adjudication, as much else in international law, no longer involves states as the only litigants.’29 Thus while CoIs are very often not of an inter-state nature, and following the general shift from inter-state to intra-state conflicts,30 they can arguably be encompassed into the modern definition of adjudication.
An additional objection to viewing contemporary CoIs in the context of more formal adjudicative mechanisms might be raised in respect to the non-binding nature of their findings. Yet, there is nothing to suggest that the reports of adjudicative bodies must be binding. Furthermore, ‘[a]lthough these bodies are not fully judicial and therefore the contents of the reports that they produce are not legally binding, this certainly does not mean that they are without significance.’31 On the contrary, while often still described as ‘fact-finding’ missions, they nonetheless also—and importantly—provide more general determinations as to whether violations of international law have taken place. A good example of this is provided in the mandate for the CoI in Darfur which was set up
to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties – to determine whether or not acts of genocide have occurred – to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable.32
This is a significant shift from the arbitral nature that CoIs formerly occasionally possessed, as identified above. The shift from offering a dispute settlement function between states to providing a more general form of legal accountability perhaps could be attributed, along with the shift from inter-state to intra-state conflicts, to the emergence of the recognition of the erga omnes nature of the laws and obligations under focus.33 The relatively recent emergence of the Responsibility to Protect concept (R2P), which highlighted the primary responsibility of states to protect those within their borders along with the secondary responsibility of the international community in this respect, may have furthered this shift,34 in addition to the fact that, unlike many of the earlier CoIs, the UN has taken a leading role in their establishment.35
Furthermore, contemporary CoIs often go beyond ‘merely’ identifying violations of international human rights law, international humanitarian law, and international criminal law to making in fact quite detailed determinations on points of international law, a function traditionally associated with more formal and permanent legal adjudicative bodies. For example, CoIs have often made determinations as to the applicable legal framework in regards to the factual situations they have been called upon to investigate. A manifestation of this assumed role can be found in the classification of armed conflicts as either international or non-international, an exercise that determines the applicable branch of international humanitarian law. This was something that the CoI in Darfur, for example, engaged in.36 The CoI on Darfur also set out in some detail the relevant international obligations binding upon both the government and the rebels.37 In doing so the CoI was building upon the case law of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda and upon the rules as set out in the ICC statute.38
CoIs have also made determinations as to the scope of the legal norms at issue and, in some cases, have provided significant developments in the law. The CoI on Syria, for example, engaged in detailed discussions on whether particular acts amounted to violations of international humanitarian law or human rights law.39 Furthermore, the CoI on Darfur pronounced upon what amounts to a protected group for the purposes of the Genocide Convention,40 while one may contend that the report of the CoI on Yugoslavia was ‘a first step towards the gradual recognition of sexual crimes not only as war crimes but also as a method or means of warfare, when perpetrated in a systematic way and used as a strategy to weaken the enemy.’41
In the absence of an alternative international adjudicative mechanism, or at least one in a position to exercise its jurisdiction, CoIs do seem to be an additional form of not only resolving contested facts but also obtaining authoritative determinations as to whether violations of international law have taken place and, if so, who is responsible, as well as the making of important pronouncements upon international law. Their interventions may not only embolden one of the parties to the conflict in its particular claims but also influence public perceptions as to the legality of the actions of those involved. Indeed, the reports of these commissions and the decisions reached, though not formally binding, may end up being just as authoritative, whether in the public, political or legal realm, as more formal permanent judicial processes as well as often establishing facts that then become difficult to dispute.42 As a consequence, the treatment of legal issues in a CoI is of some significance, as it provides what may be the only, or at least most formal, treatment of them in the context of a particular situation or conflict.
The four functions of international adjudication, not necessarily equally discernable in each adjudicative body, have been identified as dispute settlement, fact-finding, law making, and governance.43 Given the fact that on the basis of the above it can be said that most contemporary CoIs have performed these functions, and thus have arguably assumed an important role in international legal adjudication, it becomes questionable whether they have replaced or, at least, are beginning to replace, more formal modes of adjudication. In any case, they may nonetheless enhance adjudicative mechanisms where those exist, either by providing the impetus for calls of referral to the ICC,44 as we have witnessed, for example, in the context of the CoIs on Darfur,45 Libya, and Syria but also very recently with the publication of the CoI on North Korea, through to the findings of CoIs being drawn upon by other adjudicative mechanisms, something that was witnessed, for example, in the use of report of the Porter Commission by the International Court of Justice (ICJ) in the DRC v Uganda case.46 The CoIs in Yugoslavia and Rwanda are also, of course, demonstrative of how CoIs may lead to the establishment of further ad hoc bodies in the form of international criminal tribunals.47
11.3 The Impact of Temporary Commissions of Inquiry Upon International Legal Adjudication
The previous section demonstrated that in their contemporary form CoIs provide a significant additional, albeit temporary, form of accountability. Their underlying fact-finding nature means that they do so firstly by exposing, documenting, and clarifying events that have taken place within certain states or during the course of a conflict. Secondly, as highlighted above, they have also had an impact upon particular branches of international law and their substantive individual rules and norms through determining specific violations, pronouncing upon the scope of these rules and norms, as well as in some cases developing them.48 However, there are three specific aspects of international legal adjudication which are, due to the temporariness of CoIs, particularly sensitive to their emergence and increasingly frequent utilisation: the traditional formality of international legal adjudication, the principle prohibiting intervention in the internal affairs of states, and procedural fairness. This section will briefly set out if, and if so how, these aspects have been impacted upon by contemporary CoIs before going on to examine whether a need exists to replace these temporary bodies with a permanent creation.
11.3.1 The Formality of International Legal Adjudication
Given the adjudicative function that contemporary CoIs appear to possess, the informality by which they are established is, in many respects, surprising. Judicial institutions or accountability mechanisms are most often formally established through a statute, treaty, or a charter, whereas CoIs, on the other hand, are not. Yet, this may not be a feature of their temporariness as the temporary International Criminal Tribunals (ICTs) were also established under a statute annexed to a resolution of the UNSC.49 The formality regarding the establishment of adjudicative mechanisms might as such not be dependent upon whether they are temporary or permanent, but instead upon the concrete and direct consequences attached to the findings of the body, in particular whether or not they are legally binding and the consequences flowing from this.
However, even if we are to explain the informality behind the establishment of CoIs by the absence of powers to produce legally binding outcomes, they will nonetheless often have a broader impact than some of the more formally established mechanisms for accountability, such as the ICJ. For example, the findings and reports of CoIs might lead to the establishment of ad hoc ICTs, domestic investigation and prosecution, or referral to the ICC. They might also make other recommendations such as ratifying the Rome Statute of the ICC, releasing persons who are arbitrarily detained, or allowing full media access. Finally, they may provide the only, or at least most formal, treatment of the legal issues. It might as such be argued that the non-binding nature of the outcomes of CoIs makes such formal establishment unnecessary, while the flexibility in the outcomes they may ultimately provide makes it unattractive.
While CoIs may be established by a broader range of actors than more traditional formal modes of legal adjudication, which in itself is indicative of their informality, the authority, significance and impact that a particular CoI will ultimately possess will be dependent to a large extent upon the identity and authority of the actor behind its establishment. For example, CoIs established by states investigating actions that they themselves have been involved in will always have problems with presenting themselves and their findings as impartial. Such an accusation might be targeted towards the Turkel Commission which was established by the Israeli government to investigate the Gaza flotilla raid and the blockade of Gaza and which ultimately cleared the government and the military of any wrongdoing and of any violation of international law.50 This perception in regards to a lack of impartiality was not, however, a problem in connection with the CoI on Bahrain, which ‘was established and funded by the King of Bahrain, but the commission conducted investigations and administered its budget independently, and ultimately delivered a report that was highly critical of the ruling regime.’51
Individuals and organs of the UN have not escaped criticism in this respect. The UN Human Rights Council (UNHRC), in its now embedded role of establishing CoIs, has been accused of establishing those with certain predispositions, one sided mandates, and ultimately possessing no powers of enforcement.52 This may mean in many cases that they have lacked impact, for example, in the subsequent criminal prosecution of alleged offenders.53 Question marks have also been placed over the authority of the UN Secretary-General to establish CoIs.54 Those established by the UN Security Council (UNSC), on the other hand, arguably possess a greater level of authority in that they have required the support of the permanent members of the Council. The flip side to this, of course, is that CoIs established by this organ have proved rare for this very reason.55 They are, however, potentially supported by powers of enforcement immediately at the UNSC’s disposal, of both a non-forcible and forcible nature, which other organs of the UN, such as the UNHRC, UN Secretariat, or UN General Assembly, lack.
Furthermore, it would appear that in addition to the general informality of the establishment of CoIs they are also free to define the breadth and contours of their mandate. This means that what they ultimately do does not necessarily mirror what they were established to do. For example, they may not have been mandated to address violations of international law at all but go on to subsequently place a substantial focus upon them, as demonstrated by the UK’s Chilcot Inquiry on its involvement in the conflict in Iraq between 2001 and 2009. This particular CoI was expressly established by Gordon Brown, the UK’s Prime Minister, with the intention of ‘learn[ing] the lessons from the events surrounding the conflict’ so as to ‘strengthen the health of our democracy, our diplomacy and our military’,56 with no mention of international law. The Chilcot Inquiry subsequently expressly interpreted its mandate so as to address international legal issues arising from the conflict. At the launch of the inquiry on 30 July 2009, for example, its Chair, Sir John Chilcot, provided it with a mandate to ‘judge[…] … the arguments about the legality of the conflict.’57 While at first this may be taken to be in regards to the issues surrounding the legality of the invasion of Iraq in March 2003, the Inquiry also addressed legal issues that arose throughout the period under focus, that is, between the summer of 2001 to the end of July in 2009.58
Alternatively, CoIs may not have been asked to address violations of a particular branch of international law, yet, they nonetheless proceed to do so. For example, the CoI in Syria was established by the UNHRC in resolution S-17/1 on 23 August 2011 ‘to investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic’.59 Yet, even in its first report in November 2011 when there was no discernable armed conflict within Syria, the CoI provided itself with a mandate that went beyond that provided to it so as to address possible violations of international humanitarian law and international criminal law.60 Of course, while there are issues of procedural fairness arising from this aspect of its informality,61 the flexibility provided by the underlying informality of this particular form of international legal adjudication may ultimately ensure greater accountability as CoIs are able to pursue different avenues of inquiry depending upon the changing circumstances presented by the investigation and the facts found.
Lastly, in connection with their mandates, CoIs may be asked to address suspected breaches of the law by one of the parties to a conflict, yet, go on to also determine those of other parties. An example of this practice can be found in the CoI established by the UNHRC to investigate Israel’s Operation Cast Lead in Gaza in 2008–2009. UNHRC resolution S-9/1 of 12 January 2009 mandated the UN Fact-Finding Mission on the Gaza Conflict to investigate ‘all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression.’62 The chief of the mission, Richard Goldstone, accepted to chair the Commission only after rebalancing the mandate.63 Subsequently, in the final report of the Commission, the mandate was stated as being to investigate
all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during, or after.64
While the report of the Goldstone Commission came in for much criticism,65 this correction to the ratione personae scope of its mandate is one aspect that is to be applauded.66 Such one-sided mandates put the credibility and impartiality of the CoI in jeopardy, two elements which have been widely recognised as essential for successful investigations.67 In addition, there are several rules of international humanitarian law in which it is normally essential to examine the actions of both the attacker and the defender, for example, in determining whether a civilian object was a lawful target.68 While this rebalancing of the mandate was as such undoubtedly the correct thing to do in terms of protecting the authority of the CoI, the informality surrounding this delegation of powers from the formal establishing authority to the commission itself is surprising on the one hand, given the adjudicative functions that CoIs today possess, yet understandable on the other given the flexibility that states have seemingly entrusted CoIs with.
As a final point, the informality that CoIs have introduced into international legal adjudication is also reflected in the fact that even in those CoIs in which determining violations of the law is given prominence, the members are very often not judges, or even lawyers of any description. While the CoIs on Darfur and Gaza, for example, had judges or those with judicial experience involved,69 the CoI on Syria has never had any judges as members and was not originally established with any international lawyers among its membership, although this changed with the departure of Yakin Ertürk from the Commission in March 2012 and the subsequent appointment of Carla del Ponte and Professor Vitit Muntarbhorn in September 2012.70 The Commission does have a secretariat that is possessed of a broad range of expertise in the field of human rights investigations and international law. This is not exactly an unusual arrangement for a CoI. As a slight variation on this model, the UK’s Chilcot Inquiry on the Iraq conflict does not have a lawyer, let alone an international lawyer among its members, but instead an external adviser on international law in the form of Dame Rosalyn Higgins. Nonetheless, while, as noted above, the Chilcot Inquiry addressed legal issues, they are not its main focus, unlike with the CoI on Syria, where they are. In this respect, while the initial panel of the CoI on Syria had notable experience in the field of human rights, given that the key mandate of the Commission was in connection with international human rights law