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

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.

Moreover, by making a rather fanciful comparison to Alice in Wonderland Prof. van den Herik suggests that I have proposed some sort of kangaroo court. She seems to have misunderstood my point that putting military officers before an international tribunal in the world of 1904 raised serious issues of national and military honour. To make the proposed commission more palatable to Russia, Britain suggested that the privilege of imposing the punishment should remain with the nation state of anyone found guilty by the tribunal. No great power would have surrendered leading officers to an ad hoc panel without insisting on a similar condition. Times have changed since then, and at no point do I suggest that a commission established today should pay similar homage to concepts of military honour. Yet, it was perfectly sensible for Andre Mandelstam (who would later become an important early proponent of human rights in the interwar period [see here]) to conclude that this feature was vital if there was to be any chance of establishing something akin to international criminal law in the world as it existed then. After all, the separation of a guilty verdict passed by a jury and a sentencing stage conducted by a judge was not unheard of in national criminal law systems.

The main point of Larissa van den Herik’s response to my article is that she does not share my belief that a commission modelled on the North Sea Incident might be a viable route for an investigation into the downing of flight MH17. Surprisingly, her critique comes from two opposite angles: on the one hand, she suggests that my proposal is so tough for Russia to consent to that it would require military pressure that unlike in 1904 is unavailable today. At the same time, she alleges that an investigation along the lines I suggest would be so conducive to Russian manipulation that if it ever happened its agenda and outcome would be entirely at the mercy of Moscow’s machinations. Surely these criticisms cannot both be true at the same time?

As for the danger of Russian dominance, the main features of an adversarial commission of inquiry make it impossible for one state to control the inquiry: neutral judges are always in the majority, and decisions are taken by majority vote, without the possibility of a veto. It is true that the Russian delegate at the North Sea Incident commission threatened to withhold his signature from the final report unless it included a declaration affirming the honour of the Russian officers, showing once more the vital importance of that concept in the world of 1905. The rule in the 1907 Convention on the Pacific Settlement of Disputes stating that the absence of a signature does not invalidate a report as a whole (Art. 33) is a direct response to this incident and ensures that it cannot be repeated. Yet, when Larissa van den Herik argues that this incident supports her argument about the danger of Russia taking overall control of the inquiry since ‘Russia ensured that no punishment followed the outcome of the inquiry’ this is a misreading of the evidence. The absence of a demand for formal punishment was a decision taken by the full commission which concluded that what Admiral Rozhestvensky had done was not a deliberate attack on civilians, but an act of negligence in difficult and confusing circumstances. The report as a whole embraced the British case, and was a resounding rejection of Russia’s arguments.

Yet van den Herik’s critique goes further, and suggests that responding to a Russian veto of a bespoke MH17 tribunal with a second proposal that addresses the concerns raised at the time the veto was made means pandering to Russia. I find it hard to agree, and my reply would be that this depends on whether the reasons stated by Russia were completely fanciful, or whether they had some merit.

The concerns raised at the time were specific and referred to three separate issues. First, Russia’s UN delegate Vitaly Churkin criticized the structure of the tribunal as overelaborate. Any investigation into this complex incident will be lengthy and costly, but the question may be reasonably raised whether it requires a prosecution with its own investigation team, a registry, a pre-trial judge, a Trial chamber and an Appeals chamber (Art. 20 and 21 of the draft MH17 tribunal statute), with the judges appointed for a five-year period by a specially created selection panel under the supervision of the UN Secretary General (Art. 23). For the investigation of a single incident, a simpler structure might be a better way forward.

Second, Russia was concerned that not all parties to the inquiry would have equal access to the evidence used by the judges in their decision-making, specifically evidence provided by national intelligence services. Art. 51 (6) of the draft resolution gave the MH17 Tribunal’s judges the authority to potentially convict an accused on the basis of such evidence, without the need to disclose it to the defendant’s legal team if a state insisted that national security interests were compromised otherwise. One does not have to be in the pay of Moscow to see a problem with this rule, and a proposal modelled on an adversarial commission of inquiry like the North Sea Incident Commission (which did handle naval intelligence) would avoid it.

Third, Russia took offence that the draft resolution that would have set up the tribunal stated that the Council was ‘acting under Chapter VII of the charter’, usually reserved for grave threats to international peace and security. In my view, there is no legal reason to insist on this categorization for an inquiry into the MH17 incident.

I do not think that suggesting a format that addresses these three concerns while potentially being agreeable to all parties involved means pandering to power. Rather, it can help us resolve what van den Herik has rightly described as the ‘key question’: was Russia genuine in opposing these specific features of the planned tribunal while stating its support for a ‘genuine international and independent investigation’, or were these concerns convenient pretexts to mask its opposition to any meaningful inquiry? Indeed, one advantage of my proposal is that even a negative reply would help settling that important point, and tell us whether the Kremlin is prepared to honour the promise of support for an international investigation made at the UN by its recently deceased ambassador Vitaly Churkin.

Finally, van den Herik contends that the chances of a positive reply from Moscow are rather slim. Here, we are moving into the sphere of international politics, and I disagree with her analysis that Russia is entirely immune to the concept of international embarrassment. Moscow is not Pyongyang, and at least has ambitions to be taken serious as a leading power. Contemporaries in 1904 were equally skeptical about the prospects of the North Sea Incident Commission when it was announced – my article cites a lawyer stating that an agreed final report would be the ‘most improbable result’. Political circumstances can change with surprising speed, and if there is any window of opportunity for a legal forum that can establish an undisputed account of what really happened, provide compensation for the relatives of the victims and secure proportionate punishment of the perpetrators then it should be exploited. As a historian of international law I see one of my tasks as identifying solutions that have resolved international crises and controversies in the past, and offer them as options to the policymakers of today. Even if the right political circumstances for their implementation do not exist today, they might do so tomorrow, and given the current deadlock regarding an international investigation of the MH17 tragedy I felt it was my duty to point towards this forgotten and highly unusual precedent.