International Commissions of Inquiry: A New Form of Adjudication?

Dr Hannah Tonkin is a Legal Officer in the Appeals Chamber of the Special Court for Sierra Leone. She previously worked at the ICTR and ICTY and taught international law at the University of Oxford. She is the author of State Control over Private Military and Security Companies in Armed Conflict, 2011 (ISBN 9781107008014)

In March the International Commission of Inquiry on Libya, created by the United Nations Human Rights Council (HRC), presented its report, finding that “international crimes, specifically crimes against humanity and war crimes, were committed by Qadhafi forces.” The report found that “acts of murder, enforced disappearance, and torture were perpetrated within the context of a widespread or systematic attack against a civilian population.” The report further found that anti-Qadhafi forces also “committed serious violations, including war crimes and breaches of international human rights law.” The Libya Report followed the delivery to the HRC in February of a report by the International Commission of Inquiry on Syria. That Commission found that Syrian government forces “committed widespread, systematic and gross human rights violations, amounting to crimes against humanity, with the apparent knowledge and consent of the highest levels of the State.” [para 126]

The Commissions on Libya and Syria are just the latest in a series of high-profile international fact-finding missions and commissions of inquiry in recent years. These include the 2004 International Commission of Inquiry on Darfur, the 2009 UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report), the 2009 Fact Finding Mission on the Georgian Conflict (discussed here, here and here on EJIL:Talk), the 2010 and 2011 UN Fact Finding Mission and Committee inquiring into the Israeli blockade on Gaza (the HRC Fact Finding Mission and the Palmer Report) (see previous posts here), the 2011 Panel of Experts on Accountability in Sri Lanka (see previous EJIL:Talk! Post here) and the 2011 Bahrain Independent Commission of Inquiry. Most of these commissions had terms of reference that called on them to investigate alleged violations of human rights and international humanitarian law, though others, like the Georgia Commission, have been called to decide on other inter-State issues, such as the use of force.

These commissions of inquiry appear to have become a new mechanism for determining the responsibility of both states and individuals for violations of human rights and IHL. In the absence of universal compulsory jurisdiction by international judicial bodies, these commissions of inquiry are a way in which the international community can obtain an authoritative determination of whether these violations have taken place and who is responsible. These commissions have not replaced, and are not replacing, adjudication. In fact, they will often enhance adjudicative mechanisms where those exist. However, these commissions do seem to be an additional form of resolving, and obtaining authoritative pronouncements on, contested facts and issues of international law.

While many of these commissions are termed “fact-finding missions” or given the mandate to engage in fact-finding, in reality they tend to do much more than this and will often make quite detailed determinations on points of international law. These “fact-finding missions” will often make determinations on what law is applicable to the factual situations they are called to investigate. For example, they decide on the classification of conflicts as international or non-international and this will determine which branch of IHL applies (see the Libya Commission). The commissions will also make determinations on the scope of the legal norms at issue. For example, the Darfur Commission made determinations on what amounts to a protected group for the purposes of the Genocide Convention. Other commissions have engaged in detailed discussions on whether particular acts amount to violations of IHL or human rights law.

The reports of these commissions and the decisions reached, though not formally binding, may end up being just as authoritative, in the public eye and in relevant political and legal bodies, as proper judicial processes. Often, these reports establish facts that then become difficult to dispute, they are used by the political bodies in taking action against States, they may be used by international tribunals, and they usually have an important effect in public discourse (think of the effect of the Goldstone and Darfur Reports).

In addition, commissions of inquiry usually make a series of recommendations, which may include the revision of government practices and institutions, the imposition of sanctions (such as demotion or dismissal of government employees), the initiation of criminal prosecutions and the provision of compensation to victims. In many cases the factual record of a commission of inquiry serves as the basis for subsequent legal proceedings, including criminal prosecutions of individuals.

However, international commissions of inquiry differ from judicial tribunals in significant ways. A key difference compared with proper adjudication is that the procedures of international commissions of inquiry are not regulated in the same way as the procedures of courts and tribunals. These commissions 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. Notwithstanding these extensive powers, there has been little systematic consideration of the notion of procedural fairness for those who might be found responsible by commissions of inquiry as well as for witnesses, victims and their next-of-kin.

Second, the establishment of these commissions appears to depart from the principle of consent which applies to international adjudication. This principle requires that State parties to a case before an international tribunal accept the jurisdiction of the tribunal to rule on the case. This is derived from the more fundamental principle of the independence of States, i.e. the idea that States are not subject to external authority of other States or institutions created by other States (on consent and international adjudication see this piece by one of us). Far from having the consent of the State under investigation, international commissions of inquiry often operate against the will of that State. The International Commission of Inquiry on Syria, for example, was denied entry into Syria by the government, which accused the Commission of ignoring official information and exceeding its mandate. The Commission instead gathered much of its information from sources outside the country, including human rights activists and Syrian army defectors.

However, relevant to the question of consent is the manner in which the commissions are established. Various different actors have been involved in the establishment of these commissions of inquiry. Most have been established by organs of the UN and with the opposition of the State in question. Within the UN system, the Human Rights Council established the commissions on Libya and Syria, the Goldstone Panel on the 2008/09 Gaza Conflict (Operation Castlead), and a fact finding mission on the Flotilla/Israeli blockade on Gaza. While it was the Security Council that established the commission on Darfur, it was the Secretary-General that established the Palmer Committee on the Israeli blockade on Gaza and the Sri Lanka Panel of Experts (among others). In the case of Bahrain, the international commission of inquiry 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.

It may be argued that to the extent that the commissions are created by UN organs in the exercise of their competence, the States concerned have agreed (through the UN Charter) to the creation of this form of inquiry and “adjudication” of legal issues. Nonetheless, not all of these commissions are established by the UN. For example, the “Fact Finding” Mission which investigated the Russia/Georgia conflict was established by the Council of the European Union (see the Council Decision here). Also, it is not always clear that the UN organs which establish these commissions have the power to do so. For example, it is uncertain on what basis the UN Secretary-General established the panel with regard to Sri Lanka.

In the absence of any court that has compulsory and universal jurisdiction with respect to the determination of violations of human rights, IHL and other rules of international law, international commissions of inquiry may be one of the best ways of obtaining authoritative pronouncements on these legal issues. However, greater use of this mechanism will require greater consideration of how certain principles that are firmly established in relation to international adjudication, such as the principles of State consent and procedural fairness, might be adapted to govern the activities of these commissions in the future.