Do We Need an International Commission of Inquiry for COVID-19? Part II

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In Part I, I discussed what type of mandate an international commission of inquiry for COVID-19 might cover and who could establish such a body. Part II considers who might serve on a commission, how its work might be organised, and whether states could be persuaded to co-operate in good faith.

What should the composition of an international commission look like?

Should a COVID-19 commission be composed of international lawyers, former politicians and diplomats, or international officials? What about public health experts and doctors, economists, human rights activists, business and technology leaders, or behavioural psychologists? And what about size, taking into account potential trade-offs between diversity, expertise, and functionality?

Many commissions of inquiry consist of three-person or five-person panels. They sometimes have the support of a secretariat, which might be recruited ad hoc or ‘borrowed’ from an existing institution (such as the UN Secretariat in New York). Commissioners might also be supported by an advisory panel made up of scientific, military, or legal experts. The unprecedented nature of the proposed COVID-19 commission, which contemplates an enormous task covering multiple jurisdictions and issue areas, suggests the need for an innovative structure. However, the composition of an inquiry body is not only about the expertise, experience, or prestige that commissioners can bring to the task. It also concerns whether those individuals can effectively manage a small bureaucracy of investigators and analysts.  

A starting template might be a five- or seven-member panel (large enough to allow some scope for geographic, ethnic, and gender diversity) supported by a much larger ‘scientific advisory panel’ comprising multiple experts from different fields. States and international organisations could be asked to designate individuals to serve as liaisons or official contact points for the commission. It would remain the prerogative of the commissioners to make decisions about how to organise the commission’s resources, what to include in its report, and how to communicate those findings, with such decisions informed by the assembled specialists and experts.

Another key question relates to independence and impartiality. Most commissions of inquiry and fact-finding missions are intended to exhibit these qualities, which typically means that individuals serve in their personal capacity, not as representatives acting under the instruction of their home governments. When it comes to impartiality, this means not only the absence of any direct material stake in the outcome of the inquiry, but a certain open-mindedness and detachment, notwithstanding background and experience. It has also become uncommon for international commissions of inquiry to include individuals from the states under scrutiny. In this case, however, if there is a serious interest in procuring the co-operation of certain states, such as China and the United States, it may be useful to include commission members from those states. Those individuals could fill a role akin to that of a judge ad hoc at the ICJ—ensuring that a particular state’s positions and arguments are taken into account and fairly represented in the commission’s work. The problem is that other states may then demand similar accommodations. The inclusion of party representatives is a feasible proposition when a commission of inquiry is focused on a bilateral dispute or single-state conflict, but perhaps not when the territorial scope of the inquiry’s subject-matter is global.

How should the commission organise its work?

Fact-finding could include formal hearings with witness testimony, requests for documentation, the circulation of questionnaires, or in-country visits involving interviews, meetings, and on-the-spot inspections. Relevant sources of information might include government officials, personnel from the WHO and other international organisations, independent scientists and experts, representatives from key industries, or frontline healthcare workers. Of course, the feasibility of hearings, in-person interviews, or site visits may depend on how soon international travel and face-to-face meetings become possible while efforts to contain the coronavirus remain in place. Could an international inquiry conducted through Zoom meetings and Skype calls manage to achieve the necessary level of thoroughness and detail? 

Another issue is whether the sprawling nature of the task is amenable to a final comprehensive report or instead requires multiple interim or thematic reports. Some recent human rights fact-finding bodies have adopted the latter approach, including the inquiries for Syria and Myanmar. This will likely depend on the scope of the commission’s mandate. In any event, the procedures, metrics, and methodologies of any international commission of inquiry for COVID-19 will need to be spelled out as clearly as possible because whatever it does will inevitably be subject to criticism and attack, warranted or not.

Making the case for good faith co-operation with a COVID-19 commission

It may seem hopelessly naïve to imagine that any international commission of inquiry for COVID-19 will be able to elicit the good faith co-operation of all relevant actors. This includes China, but also other states that have played pivotal roles in the crisis and who view international institutions with mistrust or hostility. Developing a full account and a complete chronology of events—let alone fostering a consensus narrative—means bringing along states who fear that an inquiry will cast their actions in a negative light. Co-operation may seem entirely unrealistic when it comes to states with no culture of transparency. But it may also be difficult, at least in the current political environment, to imagine states such as the United States or the United Kingdom taking part. The urge to point fingers and assign blame while refusing to permit one’s own actions to be held up to scrutiny—let alone admit one’s own errors or miscalculations—runs very strong. It may be insurmountable. Could states yet be persuaded that taking part in the work of this international commission of inquiry is in their own interests? What are the best arguments?

Above all, the commission of inquiry should present itself as the best opportunity for every state to set the record straight. This includes giving each state an opportunity to respond to its critics and to put its own decision-making in context. Rather than letting whatever may be publicly known about a state’s actions during the pandemic speak for itself—and risk being portrayed in the worst light—states should be encouraged to explain why they took certain measures (or omitted to do so) at various points in the timeline. Policy decisions that look unreasonable or worse with the benefit of hindsight may look more justifiable, and be met with greater sympathy, when placed in their proper context. The opportunity to provide that context may be lost if a state refuses to co-operate. And if states seek to obstruct the commission’s work, this could be duly recorded and left for others to judge. Adverse inferences might be drawn.

For China, in particular, an international commission of inquiry might provide a valuable opportunity to challenge—or, at least, add nuance to—the prevailing narrative that Beijing intentionally suppressed the earliest information emerging from Wuhan about the virus (rather than, perhaps, that local officials, fearful of the ramifications, suppressed such information). It would give China an opportunity to address the potential link between its Wuhan laboratory and the emergence of the virus, as well as more outlandish claims such as the allegation that China intentionally unleashed this coronavirus upon the world (including its own people). The United States has led the way in accusing China of concealing information about the virus and of refusing access to scientists from other states, but an inquiry might also shed light on the decision by the United States to remove its own disease-control experts from China in mid-2019. China can address these issues unilaterally, but its positions are unlikely to be deemed credible if they cannot be tested. Instead, this would perpetuate a situation of duelling narratives that make moving forward difficult.

An international commission of inquiry for COVID-19 also presents an opportunity for states to practise responsible global citizenship. For China, engaging with the commission in a transparent and constructive way would be evidence that its aspirations to a greater share of global leadership go beyond using its economic might to bully others into subservience. The early signs are not good, however, as China has forcefully denounced Australia’s calls for an international inquiry. For the United States, this is also an opportunity to demonstrate leadership. However, it is hard to imagine the Trump administration seizing the opportunity. Under President Trump and Secretary of State Mike Pompeo, the United States has fully embraced the idea that the most effective response to the pandemic is to blame China, while marginalising its own public health experts and seeking to defund the WHO. It is difficult to envision the Trump administration playing a constructive role in any international commission of inquiry that is not structured as a mechanism to condemn and punish China as part of a new cold war.

If efforts aimed at bringing China, the United States, or other recalcitrant states along are doomed to fail, the focus should instead be on making the best of a difficult situation—just as we all have been doing through the pandemic. There would still be a valuable role for an international commission of inquiry to play in sorting through publicly available information, investigating further where possible, and authoritatively refuting false narratives and disinformation. Such a commission could still put together a reasonably comprehensive timeline of events and compare different approaches and responses across states. It could also assess the performance of the WHO and the criticisms that have been levelled against it, some of which may be grounded in misapprehensions about what the WHO is empowered to do. Its work could involve identifying the places where information gaps and serious questions remain, and where the international legal regime had proven inadequate and requires change. Finally, any such commission, especially if supported by experts across a wide range of issue areas, can take a holistic approach to laying out a blueprint for potential reforms and actions aimed at better preparedness for the next global health crisis.

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Sun says

May 22, 2020

You have a thorough analysis of an international mission of inquiry. I would like to make a few observations:
(1)Who is to be inquried? China first reported the virus to the WHO, but there were news that similar cases appeared in other countries even before China reported to the WHO. Second, China locked down Wuhan and other cities on Jan. 23rd 2020 which clearly demonstrated that the virus is very serious. While knowing this nature of the virus, if other countries like the US had taken drastic measures as China did, there might have no/little spread to US or other countries. Clearly there is a delay of actions here. So these countries including the US should be included and inquired.
(2)The objective of the inquiry should be aimed at strengthening cooperation in the future rather than establishing responsibility or blaming or shaming. No country will agree to that.
(3)The WHO should take the lead of the inquiry. The mission should be composed of pure medical scientists, not politicians, parlimentarians, NGO staff, judges, lawyers, journalists, etc. The TOR of the mission should be laid down by the WHA.
(4)Countries should have the opprotunity to react to the report of the mission.

Mike Becker says

May 22, 2020

Dear Sun
Thank you for your comment. As I wrote in Part I of the post, there is no reason to subject only China’s conduct to scrutiny, and I would prefer to see an inquiry with a mandate to document the global response as comprehensively as possible. This includes looking at the acts and omissions of countries other than China and it also means not limiting the focus of the inquiry to the WHO’s performance. I have also suggested that a forward-looking inquiry with a focus on problem-solving and future preparedness would be more prudent than a focus on assigning blame. I think on this we agree.

It is less clear to me that the WHO is the only or best option to lead the inquiry (I discuss the options in Part I), but the agreement reached earlier this week suggests that we will indeed have a WHO-led inquiry at some point, and the WHO has successfully established independent review bodies in the past. Whether a COVID-19 commission should be made up entirely or mostly of medical scientists and public health experts is debatable, but such people should certainly play a key role. However, depending on the scope of the mandate, there might be good reason to include individuals with others types of experience or expertise, as well. I agree that states should have a formal opportunity to respond, and, if states object to the commission’s conclusions on a topic, this could perhaps be reflected in the report. However, it is also important to find ways to prevent states from seeking to censor the results of the investigation.

Mike Becker