Commissions of Inquiry into Armed Conflict, Breaches of the Laws of War, and Human Rights Abuses: Process, Standards, and Lessons Learned
This panel was convened at 11:15 a.m., Thursday, March 24, by its moderator, Philip Alston of New York University School of Law, who introduced the panelists: Agnieszka Jachec Neale of the University of Essex; and Heidi Tagliavini of the Swiss Ministry of Foreign Affairs.
INTRODUCTION: COMMISSIONS OF INQUIRY AS HUMAN RIGHTS FACT-FINDING TOOLS
By Philip Alston
Unfortunately, Luc Cote, who was going to provide an overview of the topic, is unable to be with us today. In his absence, I will take it upon myself to undertake that task.
While commissions of inquiry are established for a great many purposes and in response to a wide range of human rights violations, I will focus on unlawful killings, referred to by lawyers as extrajudicial executions, in order to illustrate the problems associated with such commissions and the challenges that must be confronted if they are to be rendered more effective in the future.
The duty arising under international human rights law to respect and protect life imposes an obligation upon governments to hold an independent inquiry into deaths where an extrajudicial execution may have taken place. While an independent police investigation will often suffice for this purpose, the creation of an official commission of inquiry with a human rights mandate is a time-honored and off-repeated response, especially to incidents involving multiple killings or a high-profile killing. These commissions vary greatly as to the terminology used, and their composition, terms of reference, timeframes, and powers. While such inquiries are by definition established at the initiative of the government authorities, they are most often a result of concerted demands by civil society and sometimes also by the international community. Indeed it is now almost standard practice for a commission to be demanded in the aftermath of major incidents in which the authorities who would normally be relied upon to investigate and prosecute are feared to be reluctant or unlikely to do so adequately.
In historical terms, the technique of creating inquiries can be traced back to nineteenth-century England, and a great many examples can be cited of their usage outside the United Kingdom in the early part of the twentieth century, including in colonial and immediately post-colonial contexts. More recently, the number and range of inquiries undertaken around the world has been expanded significantly through the establishment of many internationally mandated inquiries, whether called for by the United Nations Security Council or the United Nations Human Rights Council, or initiated under her own authority by the United Nations High Commissioner for Human Rights.
There is no shortage of international standards designed to ensure that national-level inquiries are effective. They have been adopted by United Nations bodies, spelled out in the judgments of the European Court of Human Rights, and distilled into principles by Amnesty International. In brief, the challenge is to ensure that a commission is independent, impartial, and competent. Its mandate should empower it to obtain necessary information, but it should not suggest a predetermined outcome. Commission members must have the requisite expertise and competence to investigate the matter effectively and to be independent from suspected perpetrators and from institutions with an interest in the outcome of the inquiry. Commissions should be provided transparent funding and sufficient resources to carry out their mandate. Effective protection from intimidation and violence needs to be provided to witnesses and commission members. When it establishes the commission, the government should undertake to give due consideration to the commission's recommendations; when the report is completed, the government should reply publicly to the commission's report or indicate what it intends to do in response to the report. The commission's report should be made public in full and disseminated widely. …