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International Commissions of Inquiry as a Template for a MH17 Tribunal? A Reply to Larissa van den Herik

Published on March 6, 2017        Author: 

My article published in the last EJIL issue was originally inspired by research on early war crimes trials, and the North Sea Incident Commission stood out as a highly unorthodox and unusually early foray into what we would call international criminal law. I am delighted that Larissa van den Herik’s response has recognized the significance of the commission’s mandate to establish individual responsibility and guilt, a fact not acknowledged in the literature before. It demonstrates the variety within the practice inspired by the Hague Conventions of 1899 and 1907, and that a commission of inquiry tackling questions of accountability is not an entirely new thing. We differ on what conclusions and lessons can be drawn from these facts. I do not have the space to provide full answers to the many different criticisms raised in Prof. van den Herik’s piece but I am grateful that I was given the opportunity to briefly address the most important ones on this forum.

Prof. van den Herik wonders whether the Dogger Bank case and modern commissions of inquiry investigating large-scale violations of human rights can usefully be grouped together as being part of the same family. That is open to debate – my entire point here is that the embrace of accountability and indeed international criminal law that is controversially discussed regarding contemporary commissions of inquiry is not completely new and unprecedented, as other scholars have argued. Moreover, the North Sea Incident inspired much of the rulebook for international commissions of inquiry as laid out in the 1907 Hague Convention on the Pacific Settlement of International Disputes, so this case is more than just an outlier. In terms of categorization, I clearly present the North Sea Incident Commission as the very first of the small number of adversarial international commissions of inquiry, a rare sub-type of inquiry used for the investigation of single incidents involving attacks on civilian vessels. These adversarial setups have similarities to a criminal court, most prominently in the Dogger Bank case. In 1922, a commission of inquiry set up in this way ordered Germany to pay for the sinking of the Dutch trawler Tubantia during the First World War. In 1962, a similar commission held that the Danish navy used excessive force in dealing with the British trawler Red Crusader that had intruded into Danish waters while fishing around the Faroe Islands. Practitioners of international criminal law can either choose to embrace them as useful tools to resolve particularly intractable disputes, or reject them because they blur the distinction between fact-finding and international criminal law. What I wanted to highlight is that these precedents exist, and that states have repeatedly decided to set up international commissions of inquiry that strayed from the model described in the Hague Conventions. Read the rest of this entry…