International Commissions of Inquiry as a Template for a MH17 Tribunal ? A Reply to Jan Lemnitzer

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In his essay on ‘International Commissions of Inquiry and the North Sea incident: a model for a MH17 tribunal?’ Jan Lemnitzer makes the argument that the origins of commissions of inquiry (COIs) dealing with international criminal law are deep-rooted, dating back well before the Hague Conventions of 1899 and 1907. Presenting the Doggerbank inquiry as a de facto criminal trial, he disputes that contemporary commissions of inquiry should be seen as distinct from the Hague tradition as some scholars, including myself, have argued. In addition, Lemnitzer believes that a MH17 tribunal premised on the historical precedent of the Doggerbank inquiry offers the most promising avenue for justice especially also given the similarity of the position of Russia in both situations. I have truly appreciated Lemnitzer’s indepth account of the Doggerbank inquiry, including his analysis of the politics leading up to the inquiry as well as his points on the reception and subsequent framing of the inquiry’s outcome. Yet, as I will set out in this reply, I do not agree with some of Lemnitzer’s overarching arguments regarding Doggerbank as a precedent, the genealogy of commissions of inquiry and their present-day possibilities as such arguments fail to distinguish between different models of inquiry on the one hand and between inquiry and criminal investigation on the other.

The Pluriformity of Commissions of Inquiry

As Jan Lemnitzer indicates in the opening sentence of his article, commissions of inquiry (COIs) “have recently begun to feature more prominently in academic and political debate”, and I would add, they bourgeon in actual practice. Commissions of inquiry are created by the Human Rights Council (HRC), the UN Secretary-General, regional organizations (e.g., The Independent Fact-Finding Mission on Georgia, and the Independent Fact Finding Committee on Gaza), States (e.g., the Chilcot Inquiry) and there are even commissions of inquiry shrouded with some formality but operating outside formal structures (e.g., The Independent International Commission on Kosovo). To the extent that they deal with situations of international concern or with international legal questions, these commissions have caught the interest of international legal scholars. But what are commissions of inquiry  and to what extent are all these commissions part of the same concept? Some further conceptual exploration seems needed as the diversity in the practice of COIs is vast. In addition to being established within different institutional frameworks, commissions also vary as regards their composition (lawyers versus diplomats / politicians versus technical experts), scope and focus of mandate (focus on a situation over a prolonged period of time versus focus on one incident), framing of mandate and language used (mandate to frame facts as violations of law versus framing facts through non-legal, e.g., technical, diplomatic, historical approaches), methods of fact-finding (e.g., through witnesses or based on documents), and on the type of facts that are being found or construed as well as on the follow up that is being proposed, if any. This pluriformity raises the question to what extent there is one concept of inquiry; do the commonalities outweigh the differences?

Inquiry is commonly understood as being about establishing or construing facts by a third party in a non-binding manner. Leaving the philosophical debate apart about what a fact is and whether this can be established at all, further typologies of commissions of inquiry can be made based on the variables highlighted above. According to one typology, a distinction can be drawn between accountability versus non-accountability-oriented inquiries which is a distinction that resonates with claims about the Age of Accountability. To be meaningful, such a distinction requires further specification of the notion “accountability”, as it does not necessarily differentiate between commissions that might ultimately be quite different in nature: a commission that contributes to broader narratives of accountability can still be very distinct from a commission actually using international criminal law-standards or a commission functioning as a de facto trial. Contemporary commissions of inquiry as established by the Human Rights Council do not tend to operate as de facto trials and the propriety of having COIs name names has been questioned (see here). UN Secretary-General Guterres recently also distinguished between COIs and criminal investigative mechanisms when observing that the General Assembly’s newly established Independent Mechanism to assist in the prosecution of international crimes committed in Syria has a quasi-prosecutorial function that goes beyond the scope of the mandate of the Syrian COI. Alternative to the accountability-typology, and in my view preferably, the institutional environment and method of establishment could also serve as benchmark for differentiation. The archetype of inquiry as it was codified in the Hague Regulations was transactional in nature, in the sense that a commission of inquiry would be established pursuant to the agreement of the States whom the inquiry concerned, each State proposing its own commissioners as in arbitration. The Human Rights Council (HRC) inquiries are situated at the other end of the spectrum, being more of an authoritative nature, in that they can be established without the consent of the State(s) concerned and the commissioners are all independent experts appointed by the HRC. Given the consent-based nature of our international legal system, this difference seems vital and it raises the question to what extent an inquiry genealogy exists through which contemporary HRC inquiries can be traced back to the Hague archetype.

As Jan Lemnitzer describes, and on this point I fully agree with him, the early inquiry practice did deviate from the Hague archetype in a significant way. Indeed, in contrast to Hague provisions limiting inquiry to statement of facts, the mandate of the Doggerbank inquiry included an express instruction to take on questions of blame and responsibility. Based on these instructions, one could qualify the Doggerbank inquiry as having an accountability mandate. Yet, Russia did manage to dull the accountability-potential. Given the requirement of consent, Russia put its mark on the framing of the mandate as well the outcome. This shows how the involvement of States in the establishment of a commission of inquiry informs its functioning and framing.

Justice through a Commission of Inquiry?

Regardless of characterization, a question of more acute interest for practice is whether indeed the Doggerbank Inquiry offers a viable model for a MH17 Commission of Inquiry, or even a Tribunal. This suggestion builds on parallels between Doggerbank and MH17, in particular similarities in the position of Russia. A crucial difference of course was that in the Doggerbank case, the UK had a very strong negotiating position as the Royal Navy blockaded the Russian squadron during the negotiations immediately after the attack. MH17 victim States do not seem to be in a similarly strong negotiating position. Lemnitzer’s suggestion is further premised on the idea that Russia remains committed to a genuine international investigation of the MH17 incident, and that Russia “would find it difficult and perhaps embarrassing to reject a forum to address all of its earlier concerns and based on a precedent created by Russia itself” (p. 944). Apart from the fact that embarrassment does not seem to be a factor that informs Russian politics, a key question arises as to how genuine Russia really is. Persistent claims that Russian hackers targeted the Dutch Safety Board just prior to the release of its report in October 2015 are in any event indicative of the politics involved. Lemnitzer argues that “it is difficult to see how a [tribunal] that would […] openly antagonize Russia could serve international justice” (p. 927) and he thus submits that “what is needed is a form of international investigation that addresses all concerns raised by Russia” (p. 928). According to this logic, a MH17 tribunal or commission of inquiry may only be viable to the extent that Russia maintains a sense of control over the outcome, which seems contradictory to the very purpose of the exercise, if the purpose is indeed to deliver justice.

Another question concerns the exact purpose of the proposed MH 17 tribunal or (adversarial) commission of inquiry. The fact that the terms commission of inquiry and tribunal are used seemingly interchangeably may add to the confusion as these are generally different exercises. The idea of Doggerbank was “for the form of punishment to be decided by the Russian side, but the question of guilt to be decided by the international inquiry alone” (p. 932). In the words of Balfour, as quoted by Lemnitzer, “the persons found guilty by that tribunal will be tried and adequately punished” (p. 931-932). Guilt first, trial after. Such a reversed form of justice is reminiscent of the approach of the Queen of Hearts in Alice in Wonderland, but perhaps not necessarily something to be replicated. In contrast, contemporary commissions of  inquiry are very explicit in that they do not make final judgement as regards criminal guilt. They may be precursors to international criminal prosecutions and make recommendations in this regard, but they do not act as de facto criminal trials in themselves, and their fact-finding does not equal criminal investigation. Hence, as already indicated, the question is whether Doggerbank and contemporary commissions can usefully be grouped together as being part of the same family. Alternatively, the Doggerbank precedent can also be used to envisage an entity with traits of a criminal tribunal that, as proposed by Lemnitzer, can address intricate evidentiary questions of admissibility of mobile phone clips, social media posts and radar data, complex legal questions of command responsibility and even criminal responsibility in relation to Ukraine’ decision to continue allowing air traffic over the conflict area, which is something that may well go beyond the current confines of international criminal law. But how is such a tribunal fundamentally different from the MH17 Tribunal that Russia vetoed in the Security Council? Even if not large-scale in terms of the number of prosecutions, any criminal tribunal that must be newly established and designed to deal with such intricate legal questions, will be time-consuming and costly and thus by implication not meet several of Russia’s concerns.

Finally, the question arises how an international MH17 commission of inquiry or tribunal would relate to ongoing activities, including the ICAO-inquiry undertaken by the Dutch Safety Board, the JIT-investigations, the application at the European Court of Human Rights (see e.g., Ioppa versus Ukraine), and of more recent date the application by Ukraine at the ICJ. As indicated, the politics surrounding the ICAO-inquiry and the JIT-investigations do not show much common ground between Russia and other States involved and it is therefore unlikely that, if a MH17 inquiry or tribunal was envisaged, Russian concerns and interests could be met without compromizing the institution as such. And to the extent that the Doggerbank Inquiry is regarded as a precedent, it must also be recalled that in that setting Russia ensured that no punishment followed the outcome of the inquiry. This makes one wonder: how can such a construction ever offer a “promising road to justice”?


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