Niriksha Sanghvi, Leiden Law School, Netherlands
Niriksha Sanghvi is a graduate of the Advanced LLM program in Public International Law, with a specialisation in International Criminal Law from Leiden Law School, Netherlands.
The paper explores the development of the International Fact-Finding Missions from the early Maine inquiry in 1898 to the International Humanitarian Fact-Finding Mission established under the Geneva Conventions and leading up to the UN ad-hoc inquiries in Syria and Myanmar with focused accountability mandates. This analysis is done in the background of the corresponding legal framework governing the establishment of these inquiries, with the Hague Conventions for Pacific Settlement of Disputes (1899 and 1907), the Additional Protocol I of the Geneva Conventions and the various UN resolutions establishing the conflict specific and ad-hoc fact-finding missions. The paper also discusses the differences between the mandates of these commissions and the increasing scope and importance that fact-finding inquiries have become to hold. On the basis of this evaluation, the paper concludes that the mandate and goals of these International Fact-Finding Missions have gradually shifted from clarifying and documenting the ‘factual events’ in contention between affected parties to investigating, collecting and preserving ‘evidence’ of international law violations in conflict areas. The role of fact-finding missions has therefore changed to documenting mass atrocities and furthering the efforts for criminal accountability of international crimes. In the process, there are certain problems that these commissions pose such as lack of state consent, lack of a standardised or prescribed standard of proof and donning of a quasi-prosecutorial role in an ad-hoc fashion. In light of this, it is proposed that the UN-Fact finding missions should be regulated through enactment of a set of protocol or rules to govern their mandate, reach and purpose to provide a sound legal basis for their functioning.
The aftermath of Second World War has seen an exponential rise of international, regional, national and non-governmental fact-finding commissions, commissions of inquiries and special rapporteurs appointed in various human rights and atrocities situation. These non-judicial bodies are appointed to investigate into the alleged violations of international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) and their documentations and recommendations have considerably strengthened the international law protection to combat mass atrocities.
There are, however, divided opinions on their legitimacy. The different themes being discussed around the rise of fact-finding missions are, firstly, that they represent a step towards accountability, especially in situations where there is lack of an effective international mechanism. This has become the case with the recent conflicts of Syria and the atrocities against the Rohingyas. In both situations, there is a complete breakdown of domestic machinery and lack of the political will of the State to protect the civilians. Adding to this, there is a deadlocked United Nations Security Council (UNSC) with its veto structure and the lack of jurisdiction of the international courts and tribunals. Nevertheless, in the Rohingya situation, the International Criminal Court (ICC) has established its limited jurisdiction over the crime of alleged deportation of Rohingyas to Bangladesh, a state party to the ICC (ICC Rohingya Decision, para 73). This limited jurisdiction, whilst providing hope for some kind of accountability, excludes other alleged crimes such as of genocide. In the Syrian and Yemen conflicts, no international court or tribunal currently has jurisdiction. Recognising these difficulties associated with international criminal prosecutions, the fact-finding missions are described as ‘second-best options’ (Crawford, 2018). Secondly, outside accountability, fact-finding missions are also a tool for raising awareness around the circumstances of conflict and generating pressure on the parties to the conflict to follow rules of IHL.
On the other hand, some argue that these missions exaggerate the actual situation on the ground so as to be put under the label of international crimes (Blank, 2010, p. 280). This is criticised as manipulation of the international law for political gains, and the increasing use of law as a tool of war or ‘lawfare’ is leading to every regular civilian death by a combatant in an armed conflict being labelled as a war crime (Dunlap, 2001, p. 4). There are scepticisms on the soundness of the recent juridification of these fact-finding missions whose role has been extended to legal classifications of violations and identification of possible perpetrators (van den Herik, 2014, p. 531; Blank, 2010, p. 289). In light of these opposite positions taken on the relevance of fact-finding missions, there is no consensus yet on their success or failure in propelling international criminal justice.
Further, there is no clarity on the limits and purposes of the UN based fact-finding missions which have grown from merely collecting facts to conducting legal analysis of the conflict and crimes. The preliminary question, therefore, is about their purpose. Is their scope to use the information as propaganda material or to base a political decision on ascertained facts, to come to a mediation, conciliation or negotiation, or to reach a legal opinion on basis of facts in a human rights case or a human rights situation, or to come to a binding judgment about an allegation of a human rights violation? (Ramcharan, 2014)
To answer this, the paper looks at the gradual evolution and widening of the scope of the international fact-finding missions since the Hague Convention on Pacific Settlement of Disputes to the enactment of Article 90 of Additional Protocol I of Geneva Conventions to the modern ad-hoc fact-finding missions constituted for investigation and collection of legal evidence. Next, the paper discusses the metamorphosis of mandates of fact-finding missions under the UN framework and analyses the value such missions bring while also looking at the probable drawbacks. Lastly, the paper concludes that to streamline the ad-hoc proliferation of international fact-finding missions, there is a need to frame proper guidelines or rules of procedures setting down the framework of their conduct. The purpose and procedure of a fact-finding mission should be clarified which in turn would provide a check and balance system on the activities of the fact-finding missions.
The Evolution of Fact-Finding Commissions
The evolution of fact-finding missions can be broken down into two phases – conventional or treaty based and ad-hoc inquiries under UN. The earlier fact-finding missions were treaty-based which have now grown to become more independent and are constituted under the aegis of UN on a case by case basis.
The initial purpose of the fact-finding missions was literal to their meaning. It was to clarify the facts and set the account of an incident straight to avoid contradictory findings by different sides to a conflict (van den Herik, 2014, p. 510).
- Commissions of Inquiry under Hague Conventions
The first international commission of inquiry was formed in 1898 following the Maine explosion incident in Cuba. Separate national inquiry commissions appointed by the US and Spain to investigate the sinking of US battleship Maine reached conflicting findings on the cause of the massive explosion which had resulted in the death of 266 American crew members on board on February 15, 1898 (Fisher, 2009). The report released by the US naval board inquiry pointed it to be a Spanish sabotage which deteriorated the already tensed US-Spain diplomatic relations leading to the American-Spanish War (Pérez, 1989, pp. 293-295).
This incident delineated the need for establishing an independent and impartial fact-finding commission. Around the same time, the Russians invited the leaders of 59 of the world’s sovereign States to participate in a peace conference in The Hague which was the first of its kind (Baker, 2009). One of the outcomes of this conference was the Title III 1899 Hague Convention for Pacific Settlement of Disputes (Hague I convention) under which the states agreed to institute an International Commission of Inquiry as a means for settlement of their international differences or conflicts “involving neither honour nor vital interests, and arising from a difference of opinion on points of fact” (Article 9, Hague Convention for Pacific Settlement of Disputes. 1899). The idea was to agree on an impartial and conscientious investigation to be undertaken by the International Commission of Inquiry based on a special agreement by the concerned states, wherein each party to the conflict can be heard to determine the facts (Article 10, Hague I Convention). The Commission’s final report was intended to be in the form of only a statement of facts and the convention clearly states that it should, in no way, be in the form of an arbitral award (Article 14, Hague I Convention).
The mechanism for an international commission of inquiry was further developed under the 1907 Hague Convention on Pacific Settlement of Disputes (Hague II convention) in the Second Hague Peace Conference which set the procedural rules for composition and functioning of the commission. The rules provide for selection of members of the commission similar to the selection of arbitrators i.e. two members to be appointed by each party, who shall jointly appoint an Umpire (Article 45, Convention for the Pacific Settlement of International Disputes. 1907). It also allowed the parties to appoint special agents to represent state’s interests at the commission and act as an intermediary between the state and the commission (Article 14. Hague II Convention). In addition, counsels or advocates could be appointed by parties to state their case and uphold their interests (Article 14, Hague II Convention). The procedural rules mirrored an arbitral or adjudicatory procedures regarding procurement and examination of evidence, witness examination and expert opinions and allows written submission to be presented by the agents or counsels for the purpose of ascertaining the truth (Article 19-29, Hague II Convention). These rules already reflect a shift in attitude of the states towards the role of these inquiries from being independent investigative bodies focusing on finding facts to quasi-arbitral or quasi-mediatory tools of non-binding nature (Politis, 1912, p. 149 as cited in van den Herik, 2014, p. 536). However, the goal of these inquiries was still limited to the ascertainment of truth. Also, these inquiries were a bilateral exercise between two or more states in conflict and were not to be constituted by any international bodies. The initial uses of these inquiry commissions were limited to naval vessel destruction inquiries (van den Herik, 2014, p. 513).
- International Humanitarian Fact-Finding Commission
Modelled on the Hague Conventions, the International Humanitarian Fact-Finding Commission (IHFFC) is an independent and impartial expert body established under Article 90 of Additional Protocol I (AP I) to the Geneva Conventions. The IHFFC was also established to take on the traditional role of inquiring into facts and not to judge. The 1987 commentary to the Additional Protocols makes it clear that the purpose of the Commission is to try and establish the chronology of actual facts of an incident where there are contradictory narratives (ICRC 1987 Commentary). However, unlike the ad-hoc inquiries under the Hague Convention, IHFFC is a permanent international body based in Bern, Switzerland. It is composed of 15 members including medical doctors, judges, high ranking military experts, diplomats and international law scholars elected for a five-year period (Azzarello and Niederhauser, 2018).
The IHFFC has a specific mandate to enquire into any facts alleged to be a grave breach as defined in the Geneva Conventions and AP I or other serious violation of the Geneva Conventions or of the Protocol and also facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and the AP I (Article 90(2)(c)(i) and Article 90(2)(c)(ii), Additional Protocol I). It has a consent-based competence similar to that under the International Court of Justice statute. It contains an optional clause on recognition of compulsory competence for States which at the time of signing, ratifying or acceding to the Protocol, or at any subsequent time, can declare that they recognize this competence ‘ipso facto’ (and without any special agreement) with respect to any other State making the same declaration (Article 90(2)(a), Additional Protocol I; ICRC 1987 Commentary). For other kind of situations, the IHFFC gains its competence only when all parties to the armed conflict make a declaration to that effect (Article 90(2)(d), Additional Protocol I). Such a declaration can be made by states without becoming a party to the AP I, thus allowing all parties to an armed conflict, including national liberation movements, to resort to the Commission on a case by case basis (ICRC 1987 Commentary).
Since this Commission has been established under AP I, it was originally interpreted to be limited to only international armed conflict. However, IHFFC has since clarified that it is willing to undertake inquiries into violations of IHL in non-international armed conflict as well, provided the parties to the conflict have consented to it (International Humanitarian Fact-Finding Commission, 2005, p. 1). The Commission interpreted its constituting Article 90 as including both the Geneva Conventions and the AP I and therefore, would also include common article 3 of the Geneva Convention which gives right to an impartial humanitarian body to offer its service to parties to the conflict, including an non-international armed conflict (Azzarello and Niederhauser, 2018). Same conclusion was inferred from the drafting history, subsequent practice, as well as the ordinary meaning in light of the object and purpose underlying Article 90 AP I (International Humanitarian Fact-Finding Commission, 2016, p. 2).
Since its official constitution in 1991 and recognition of its competence by 76 state parties, the IHFFC remained idle for many years, almost forgotten. A major reason for this has been states’ reluctance to accept the existence of an armed conflict and allowing an independent investigation (Sassoli, 2017, p. 6; Azzarello and Niederhauser, 2018) and also the lack of knowledge regarding the functions of IHFFC in light of the other fact-finding missions being established with overlapping mandates (International Humanitarian Fact-Finding Commission, 2016, p. 3). Suggestions have been made to amend the IHFFC framework to dissociate its seizure from state initiative, permitting the Commission to act on its own initiative, but it has not been materialised as yet (ICRC, 2004, p. 10). The Commission once came close to initiating inquiry in the armed conflict in Colombia. However, this did not materialise in the end as the agreement between the government and one of the armed opposition group to the conflict fell through after a change in the Colombian political landscape (International Humanitarian Fact-Finding Commission, 2001, p. 2).
A breakthrough came in 2017, when a situation was referred for investigation to the Commission when an Organization for Security and Cooperation in Europe (OSCE) armoured vehicle patrolling through Eastern Ukraine exploded resulting in the death of an OSCE paramedic. This was referred under an agreement signed between the OSCE and the IHFFC. A post blast forensic investigation conducted by an Independent Forensic Investigation team under IHFFC concluded that the anti-vehicle mine placed on the civilian road was the cause of the explosion but that the patrolling vehicle (SMM) was most likely not the intended target of the attack. The IHFFC report provides a brief legal analysis of the incident outlining that such an indiscriminate attack would be a violation of IHL (OSCE, 2017).
One criticism raised about this investigation is the legitimacy of the competence agreement signed by an international organisation (OSCE) instead of a High Contracting State authorising to investigate in a State’s territory. The 1987 commentary on Additional Protocols explicitly excludes “private individuals, representative bodies acting on behalf of the population, or organizations of any nature” from submitting a request to the Commission (ICRC 1987 Commentary). However, a supporting argument could be made that other international organisations like the UN Security have the power to refer an incident to the IHFFC through a Resolution under Chapter VII as has been acknowledged by IHFFC in its 2015 report on the work of the Commission (International Humanitarian Fact-Finding Commission, 2016, p. 2). Therefore, by analogy, other international organisations, like the OSCE, can also refer a situation to IHFFC. Further, article 90(2)(d) uses the term ‘party’ and not ‘High Contracting Party’ as used under article 90(2)(a) (A similar interpretation has been done in the ICRC blog: Azzarello and Niederhauser, 2018) which can be argued to include non-state actors like international organisations and rebel groups.
One of the main shortcomings of treaty-based mechanisms is their dependence on states’ consent or ratification to the relevant conventions establishing the mission or signing of a bilateral agreement for joint investigation. Furthermore, these mechanisms do not have any continuing monitoring powers over a conflict to provide consistent documentation. These mechanisms have, therefore, been limited to vessel inquiries and other non-atrocity or security related situations. The IHFFC is a novel creation under the Geneva Convention for the implementation of IHL. Unfortunately, it has not seen much success with only one proper investigation conducted since its inception. While a commission of inquiry report under the Hague Conventions could be read at public sittings (Article 13, Hague I Convention and Article 34, Hague II Convention), the IHFFC reports are released only to the parties involved (Rule 28(2), Rules of the International Humanitarian Fact-Finding Commission) widowing the general public from learning about any IHL violations. This provision could be a step to attract state parties to submit inquiry requests but as Marco Sassòli argues this also “creates a dent on the credibility of IHL” (Sassoli, 2017, p. 7).
Realising the potential of fact-finding missions as a means for ensuring enforcement and accountability under international law, the UN has also established various ad-hoc commissions to look into human rights and mass atrocities in conflicts. The terms fact-finding missions, commissions of inquiries, panel of experts, investigative mechanisms are used to describe these entities by different establishing bodies. However, there is no difference between them in terms of their purpose and methodological standards (OHCHR Report, 2015, p. 7).
The 1991 UN General Assembly (UNGA) Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security (1991 UN Declaration Annex (I) point 2) defines a fact-finding mission as “any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent United Nations organs need in order to exercise effectively their functions in relation to the maintenance of international peace and security”. The Declaration also requires the fact-finding missions to be “comprehensive, objective, impartial and timely” (1991 UN Declaration Annex (I) point 3) and should be deployed at an early stage in order to contribute to the prevention of disputes and situations (1991 UN Declaration Annex (I) point 12). Further, it necessitates taking consent of the state before sending a UN fact-finding mission to the territory of that State (1991 UN Declaration Annex (I) point 6). At all stages of the fact-finding process, the concerned states are to be given an opportunity to express their views (1991 UN Declaration Annex (I) point 26) and it allows the fact-finding missions to conduct hearings if required and according to appropriate rules of procedure (1991 UN Declaration Annex (I) point 27).
These ad-hoc fact-finding missions can be categorised further depending on whether they are established by the Security Council, General Assembly, Human Rights Council (UNHRC) (and its predecessor Commission of Human Rights) or the Secretary-General (The 1991 UN Declaration gives mandate to all three UN bodies. Annex (II) point 7).
- Appointing UN bodies
The UNSC has the primary responsibility for maintaining peace and security under its chapter VII mandate (Article 34 UN Charter 1945; Uniting for Peace Resolution, 1950). Accordingly, the UNSC has established inquiry missions to investigate into human rights violations in the Former Federal Republic of Yugoslavia (1992) (UNSC resolution 780) and Darfur (2004) (UNSC resolution 1564), Central African Republic (2013) (UNSC resolution 2127) and the latest mission to inquire into the Da’esh violence (2017) (UNSC resolution 2379). The inquires under UNSC are more powerful because of the enforcement powers of the UNSC (Kaufman, 2018, p. 11). The Security Council also has binding powers to direct cooperation of the involved states in ensuring justice.
However, the UNSC has proved ineffective in many other conflicts because the veto-wielding permanent members have blocked attempts to investigate into nations where they have personal interests. For instance, in Syria, as many as ten resolutions proposing steps to ensure accountability for international crimes in the on-going Syrian conflict have been vetoed by at least one of the permanent members (Nichols, 2017). In the Rohingya refugee crisis, numerous UNSC resolutions have been vetoed because of China’s trade ties and strong relations with the Myanmar government (Nichols, 2018; Simon, 2018). Such deadlocks in Security Council has made it ineffective in providing a timely and strong response for prevention of large-scale violations.
To fill this gap, the UNGA has initiated independent inquiries into certain conflicts. However, the authority of UNGA was challenged by many states, with the Russian delegation at the forefront, when the UNGA created the International, Impartial and Independent Mechanism (IIIM) for Syria in 2016 to document violations of IHL and human rights violations and abuses in the Syrian Arab Republic since March 2011. The main grounds of challenge were that the General Assembly does not have the power to establish the IIIM having quasi-prosecutorial powers as it does not itself have those powers. Secondly, the Mechanism was challenged on the ground that it was not in conformity with Article 12 of the UN Charter given that the UNGA was not empowered to act if the UNSC was exercising its function on the same matter.
The UNGA does not have an explicit mandate per se under the UN charter, however, its authority can be derived from Article 12 of the UN Charter. On a reverse interpretation of Article 12, the General Assembly has the power to consider a matter related to the maintenance of peace and security, if the Security Council is not exercising its function ‘at the same moment’. Further, the 1950 Uniting for Peace resolution also makes a provision for when the Security Council fails to act because of lack of unanimity of permanent members and allows General Assembly to “consider matters consider the matter with a view to making recommendations to Members for collective measures to maintain or restore international peace and security” (Uniting for Peace Resolution, 1950; Role of General Assembly).
The UNHRC, as a subsidiary body of the General Assembly, has also stepped up to fill the gap left by a paralysed security council. Although a weaker option, the Human Rights Council has in many situations broadened its human rights mandate into IHL and ICL. The UNHRC has established multiple commission of inquiries and expert groups to investigate into atrocity crimes in Lebanon (2006) (UNHRC resolution S-2/1), Gaza (2009) (UNHRC resolution S-9/1), Cote d’Ivoire (2011) (UNHRC resolution 16/25), Libya (2011) (UNHRC resolution S-15/1), Occupied Palestine Territory (2012) (UNHRC resolution 19/17), Korea (2013) (UNHRC resolution 22/13), Burundi (2015) (UNHRC resolution S-24), Yemen (2017) (UNHRC resolution 36/31), Syria (2011) (UNHRC resolution S-17/1), Myanmar (2017) (UNHRC resolution 34/22).
The UNHRC Commissions, however, only have voluntary jurisdictions and can make non-binding recommendations to the UNSC and the member states to take steps. The practice of the General Assembly seems to suggest that it can address different, and usually more limited, aspects of the matter than the broad politico-military questions covered by the ‘situation’ on the agenda of the Security Council (Simma et al., 2012 as cited in Wenaweser and Cockayne, 2017, p. 223; I.C.J., 2004, p. 148).
Apart from these UN bodies, the UN Secretary General can also send fact-finding missions under Article 99 of UN Charter which provides that ‘the Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. This provision has been interpreted as flexible and broad enough to permit the Secretary-General to exercise fact-finding powers (ECCHR, 2010, p. 2). Consequently, the Secretary General has invoked this power in Zimbabwe (2005) (Tibaijuka, 2005), Timor-Leste (2006) (Independent Special Commission of inquiry for Timor-Leste), and Fiji (2007) (UN Press Release, 2007) among others. Apart from these, the UN High Commissioner of Human Rights can also conduct its own fact-finding missions or provide assistance to the fact-finding missions established by the Human Rights Council or the Secretary-General (ECCHR, 2010, p. 4).
The mandates of the various fact-finding commissions established have varied over the years from finding facts to documenting IHRL violations to also including IHL and ICL violations. These mandates have further differed on the basis of the area, nature of violations and time period covered by them. Some missions had a general mandate to cover the entire country like in Syria whereas some missions have the mandate to cover only a part of the country like Darfur in Sudan (OHCHR Report, 2015, p. 9). Some mandates require missions to inquire into all violations of human rights or humanitarian law in a conflict situation. However, in some instances the language of the resolution was very specific as regards the nature of the violations that the commission/ mission was expected to investigate (OHCHR Report, 2015, p. 17). The 2012-2013 Palestine inquiry was set up by the OHCHR to look into the “limited implications of the Israeli settlements only on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem” (Terms of Reference, Palestine, 2013).
Some other missions have specific mandates of investigating a particular incident for example the post-election violence in Cote d’Ivoire (UNHRC resolution 16/25); the Gaza-Flotilla incident (UNSC resolution S/2010/414); and the Rohingya refugee crisis in Myanmar (UNHRC resolution A/HRC/39/64). Recently, the Security Council established the Iraq mission with a specific mandate of investigating violations by only one party to the conflict i.e. ISIL or Da’esh violence in Iraq. As a condition for full support of the Iraq government, the resolution specifically mentions that the investigation team will operate with full respect for the sovereignty and territorial integrity of Iraq and that its terms of reference will be approved by the government of Iraq (UN Press, 2017). In a way, this pre-requisite of state consent is abiding by the UN 1991 Declaration on Fact-Finding Missions discussed above. However, this one-sided approach has received criticism, with Global Justice Center stating that “Only prosecuting Da’esh fighters reeks of victor’s justice” and asking for more comprehensive mechanism to hold all perpetrators liable, including Iraqi, Kurdish and the Coalition forces (Global Justice Center, 2017). Human Rights Watch has observed that the “lack of impartial justice could undermine longer-term prospects for stability and development. An imbalance in accountability efforts threatens to open new divisions and could breed a resurgence of ISIS-like groups …” (Human Rights Watch, 2017).
Under the recent UN resolutions, more powers have been given to the newer fact-finding missions. The mandates of the earlier fact-finding missions were limited to investigations of facts and circumstances. This can be seen in the missions deployed in Burundi, Timor-Leste and Darfur among others (OHCHR Report, 2015, p. 18). This language has now evolved to state “investigate or examine alleged violations of international human rights and other international laws”. This is the case with Syrian Commission of Inquiry (2011), the Yemen Group of Eminent Experts (2017) and the Myanmar Independent Fact-Finding Commission (2017) (UN Library and Archives). This language is also found in the mandate of the newer IIIM Syria set up by UNGA in 2016, which is to “a) collect, consolidate, preserve and analyse evidence of violations of IHL and human rights violations and abuses and b) to prepare files in order to facilitate and expedite fair and independent criminal proceedings” (Terms of reference, Syria, 2011). The ISIL inquiry set in Iraq also has a similar mandate to collect evidence and share it with national courts or other investigating bodies (Terms of reference, ISIL, 2017). The purpose of these missions has shifted from finding presence of violations to finding evidence for violations (Similar point made in van den Herik, 2014, p. 535).
In addition to this, some commissions are further required to also identify the list of probable perpetrators responsible for the commission of international crimes. Both the UNHRC and UNSC have given such wide powers to various commissions in Darfur (2004), Guinea (2009), Libya (2011), Central African Republic (2014) and Syria (2016) (OHCHR Report, 2015, p. 21-22). In practice, however, most of these missions, with the exception of Guinea and Timor Leste, have kept the list confidential and handed it to the Secretary-General or the High Commissioner for Human Rights (OHCHR Report, 2015, p. 22). Many of these commissions have resulted establishment of a court or tribunal initiation of a criminal proceedings (Aksenova and Bergsmo, 2015, p. 3). The UN ad-hoc tribunals established for Yugoslavia, Rwanda, Lebanon and Cambodia were preceded by a Commission of Inquiry investigating in these regions. Findings of these commissions can become relevant in an on-going preliminary examination at the ICC (ICC, Office of the Prosecutor, 2015) or in referring a new situation to the ICC (In an interactive dialogue held by UNHRC, many states urged for a Security Council referral of the situation in Myanmar to the ICC, OHCHR Press Release, 2018).
Lastly, the commissions are also asked to provide recommendations on accountability measures with the view to end impunity. The Myanmar Commission has made a recommendation to prosecute the senior named military officials in an international criminal tribunal for genocide, crimes against humanity and war crimes (UNHRC resolution A/HRC/39/64, 2018), whilst the Syrian Commission of Inquiry has repeatedly called for the Security Council to “refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction” (UNHRC resolution A/HRC/32/CRP.2, 2016).
The overall mandates of the modern missions can thus be summarised as a) investigation and establishment of facts b) legal assessment of the fact c) collection of evidence for preparation of a criminal trial d) provision of recommendations to different stakeholders.
Concerns about Modern Fact-Finding Missions
Standard of proof
Commissions differ from the judicial organs in that they are not bound by the ‘beyond reasonable doubt’ standard of proof, the principle of equality of arms, or the principle of individual criminal responsibility (Aksenova and Bergsmo, 2015, p. 4). In fact, many recent international fact-finding missions that have been established with a quasi-judicial or quasi prosecutorial role have lower evidentiary threshold. The 1899 and 1907 Hague Conventions are silent on the role of fact-finding missions as quasi-judicial entities and hence, are silent on the standard of proof required to be followed by these missions. The 1991 UN declaration focuses on their role in prevention of disputes and assisting the competent UN body and are again silent on the required standards of proof. The AP I to Geneva Conventions limits the functions of IHFFC to fact-finding and does not provide for standards of proof.
In the absence of any precedential guidance, many ad-hoc commissions have used a lower evidentiary threshold, such as “reasonable suspicion” (OHCHR Report, 2006, paras 12 and 110), “preponderance of evidence” (UNHRC resolution A/HRC/15/21, 2010), or “balance of probabilities” (e.g. UNHRC resolution A/HRC/19/68, 2012, para 7), while some other fact-finding reports articulate no standard of proof at all. For instance, the report of the Bahrain Commission of Inquiry makes no mention of the commission’s standard of proof. Additionally, the report of the fact-finding mission mandated by the United Nations Human Rights Council to gather information about the Israeli Flotilla raid of 2010 simply states, “The Mission found the facts set out below to have been established to its satisfaction”. (See, UNHRC resolution A/HRC/15/21, 2010, para 183). These standards are lower than the lowest standard of ‘reasonable grounds to believe’ required at the ICC to issue arrest warrants.
The recent commissions have realised this gap and the standard of proof used by the commissions under UNHRC with a mandate to collect evidence and identify perpetrators has been elevated to ‘reasonable grounds to believe’ (UNHRC resolution A/HRC/40/70, 2019). However, the Hague Justice Portal has sceptically mentioned that “this standard as understood and employed by the fact-finding mission might not necessarily be congruent with the standard required by the ICC”. The IIIM Syria established by the UNGA has acknowledged the fair trial concerns and their terms of reference mentions that “these procedures shall be based on international law and standards, notably the right to a fair trial and other due process provisions under international human rights law, as well as on the jurisprudence, procedural standards and best practices of the international criminal tribunals” (Terms of reference, Syria, 2011). It remains to be seen how these standards would be incorporated by the IIIM in their investigation as they have not released their report yet. The UNSC sponsored commissions, on the other hand, have a higher standard of proof. The UNSC inquiry in Yemen provided an opportunity to reply to the states, entities and individuals implicated for crime patterns to get a balanced view (UNSC resolution S/2019/83, 2019).
Premature Determination of Accountability
Most modern fact-finding missions have a monitoring mandate, but some also go a step further in ensuring accountability and analysing applicability of international laws. These fact-finding missions, acting as quasi-judicial bodies, are engaging in judicialisation of factual findings (van den Herik, 2014, p. 508). Questions have been raised about the blurring lines between international criminal courts and international fact-finding mission (Grace and Coster Van Voorhout, 2014, p. 4-5). The reports documenting incidents of violations of IHL and categorising as them as crimes against humanity, war crimes or genocide are based majorly on victim and witness interviews and analysis of other NGO and UN reports. Many of these reports are not based on rigorous methodology as the documentation of many violations have no proof or sources attached to it. This is the case with most reports of the Syrian and Myanmar inquiries which provide almost no sources or annexes for their information. The fact-finding missions, therefore, do not necessarily provide conclusive evidence but only create the base for a criminal prosecution and which can be referred to by the ICC Prosecutor to start an investigation. This raises the question of utility of such accountability documentation in criminal trials. In the request to initiate an investigation on the situation in the Republic of Côte d’Ivoire, the ICC Prosecutor relied considerably on the independent inquiries reports to gain information on the exact locations where crimes were committed, the pattern of attacks, and indicate indicia of state involvement through the instigation of xenophobia and the fanning of ethnic and political hate (ICC, Office of the Prosecutor, 2011, para 29). However, the ICC pre-trial chamber in the Laurent Gbagbo case had raised concerns about the ICC Prosecution’s sole reliance on the NGO reports, UN reports, and press articles and stated them as being “anonymous hearsay” from outside entities (ICC, Pre-Trial Chamber I, 2013, p. 17).
While maintaining privacy and confidentiality of sensitive information is crucial, documenting facts as violations of IHL without hearing the defence side clouds the credibility of these reports. It goes against the principle of presumption of innocence (Grace and Coster Van Voorhout, 2014, p. 19) and the right to legal representation of the defendant. Other issues have also been raised regarding the lack of expertise and skill in the information gathering methodology and improper ‘chain of custody’ of evidence (Grace and Coster Van Voorhout, 2014, p. 19). In such cases, having a multidisciplinary team covering different professions of investigators, forensic experts, anthropologists and legal experts is more beneficial than an exclusive team of only legal experts and judges. Lessons can be learned from the IHFFC in this regard which provides for a diverse team of experts to form its Commissions.
Further, the commission reports are also published with public access casting a prejudice in minds of judges and other stakeholders in any future criminal proceedings. Hence, the reports of fact-finding missions are a premature pronouncement of accountability without proper adjudication.
The 1991 UN Declaration provides for consent of States to be taken before initiating an investigation into their territory (1991 UN Declaration Annex (I) point 6). The IHFFC model is also based on consent of the parties involved in the conflict. Keeping in mind the quasi-judicial role of fact-finding missions, the basis of admittance of cases in international criminal courts and the International Court of Justice has also been state consent. However, the recent trend for fact-finding missions has been to focus more on accountability and compliance with international law disregarding the will of the States. These can also be seen as a measure to overcome the harsh reality that, in most cases, states are opposed to any form of investigation. A perpetual issue highlighted by these commissions’ reports has been limited access to large parts of Yemen (UNSC resolution S/2019/83, 2019) and denial of access by the Syrian and Myanmar government (UNHRC resolution A/HRC/39/64, 2018; UNHRC resolution A/HRC/40/70, 2019).
The Myanmar and Syrian Governments have opposed the establishment of Inquiry Commission to investigate into their internal conflicts as a breach of their territorial integrity and sovereignty (UNHRC resolution A/HRC/39/64, 2018; UNHRC resolution A/HRC/40/70, 2019). The Da’esh inquiry could be set up with unanimous agreement among UNSC members and the Iraq government because the Security Council delineated the scope of the inquiry to only Da’esh violations and not interfere with Iraq’s sovereignty and territorial integrity. Such brazen opposition to presence of commissions in their territory rules out any chances of state cooperation and harms the credibility of these reports (Kaufman, 2018, p. 18).
Way Forward – Need for Policy Development
International fact-finding missions are a bridge between enforcement of IHL and the political will (or the lack thereof). Since 1899, the inquiry commissions have developed into various models and variations have been introduced based on the nature of the conflict, type of violations and purpose of the missions. However, all of them have few recurring characteristics which can be extracted to define the fact-finding missions. These institutions are established under international laws, conduct ad hoc fact-finding, are impartial and independent and issue non-binding reports. The mandates of these missions are broadly defined leaving room for mission member’s interpretation and the work done by these missions has differed greatly. The earlier fact-finding missions limited themselves to factual analysis and some even made clarifications on their own identity as not being a law-applying authority (van den Herik, 2014, p. 529). The recent missions, however, have shifted its focus towards legal characterisation of the facts and ensuring accountability (OHCHR Report, 2015, p. 20).
To a certain level, the ad-hoc nature of fact-finding missions is beneficial because it allows their formation and role to be tailored to specific situations. However, with the growing number of fact-finding committees being set-up in the last decade, there is a chance of fragmentation of their findings and analysis of international law and accountability. This is more so in situations where multiple inquiry commissions have been set up by competing UN bodies caught in the New York – Geneva paradigm. For instance, multiple inquires have been launched into the Syrian conflict by the UN Security Council, the UN General Assembly and the UN Human Rights Council. While the Security Council inquiry was limited to the investigation on use of chemical weapon (OPCW Press Release, 2017), the Commission of Inquiry set up by the UNHRC in 2011 and the IIIM by the UNGA in 2017 have overlapping and complementary mandates. In an event that IIIM Syria set up by UNGA comes to a contrasting analysis of the situation than the Syria Commission of Inquiry, it can put a dent on the evidentiary value of the information in a criminal proceeding in the future. The same is the case with the two Myanmar inquiries set up by UNHRC which are overlapping with the national inquiry set up by the Myanmar government (Abbott, 2019).
Other criticism raised are that they lack predictability, as they are constituted on an ad hoc basis without proper continuity or institutional memory (Aksenova and Bergsmo, 2015, p. 3). There is no clarity or uniformity on the criminal standards of proof it requires to follow. There are also other fair-trial concerns of one-sided documentation and the increasing individual criminal accountability orientation without equality of arms. Lack of state consent requirement can also question the reports of the commissions to a certain extent, especially if deployed in civil wars or international conflicts where both sides have different narratives and justifications for their actions.
Despite the various fair trial criticisms surrounding the fact-finding missions, the need remains for involvement of fact-finding missions in conflict situations. The data gathered by the fact-finding missions is based on victim and witness interviews and evaluation of communications by local NGOs and other community leaders along with international NGO or UN reports. This provides a first-hand account of the armed conflict, ground conditions of victims and the level of involvement of different parties to the conflict. Because of the procedural limitations, the ICC Prosecutor might not be able to conduct prompt investigation to collect fresh and early evidence and the evidence can be lost forever (Grace and Coster Van Voorhout, 2014, p. 20). The fact-finding missions, then, become crucial.
The issue, therefore, is of setting proper guidelines and rules of procedures to standardise the functioning of modern international fact-finding commissions. Both the Hague Conventions and the 1991 UN declaration have become outdated and do not sufficiently address the evolved orientation of the modern fact-finding missions. As early as 1968, the UN had stressed on the importance of well-defined rules of procedure for the orderly and efficient discharge of ad-hoc working bodies concerned with human rights (UNGA Resolution X, 1968, p. 12).
The rules of procedure should set down their scope, composition of the commission, standard of proof to be employed, the handling and sharing of information and sensitive data, victim and witness treatment, and should also encompass principles of fair trial, due process, equality of arms, and rights of accused amongst others. These rules of procedure should be developed keeping in mind the practical issues present in a conflict or post-conflict society of victim and witness protection, re-traumatisation of victims upon repeated questioning, sensitivity for sexual and gender-based violence etc. Apart from this, they should also incorporate the basic principles and standards of human rights and IHL that fact-finding missions need to adhere to, namely, do no harm, independence, impartiality, transparency, objectivity, confidentiality, credibility, visibility, integrity, professionalism and consistency (OHCHR Report, 2015, pp. 33-35).
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