Challenging Some Baseline Assumptions about the Evolution of International Commissions of Inquiry.

• Author: Becker, Michael A.

TABLE OF CONTENTS I. INTRODUCTION II. PROPOSITION NO. 1: THE DRAMATIC INCREASE IN RECOURSE TO INQUIRY BODIES SINCE 1991 A. A Short History of Inquiry 1. The 1899 and 1907 Hague Convention 2. The "Bryan Treaties" and Similar Treaty-Based Initiatives 3. The League of Nations 4. Inquiry by International Organizations (1945-1991) 5. Post-Cold War Practice (1992-Present) B. Conclusion on the First Proposition III. PROPOSITION NO. 2: THE EVOLUTION FROM "PURE" FACT-FINDING TO LEGAL ASSESSMENT A. Inquiry Bodies under the Hague Convention Model B. League of Nations Inquiry Bodies C. Inquiry Bodies Established by International Organizations during the Cold War D. Conclusion on the Second Proposition IV. PROPOSITION NO. 3: FROM DIPLOMATIC DISPUTE SETTLEMENT TO NORM ENFORCEMENT A. Human Rights in the Practice of Historical Inquiry Bodies 1. Early Examples of Norm Enforcement and Accountability Inquiries 2. League of Nations Practice 3. UN Practice during the Cold War B. International Criminal Law in the Historical Practice of Inquiry Bodies C. Conclusion on the Third Proposition V. SUMMATION I. INTRODUCTION

International commissions of inquiry and fact-finding missions are a regular feature of contemporary international affairs. Familiar examples include inquiry bodies for the situations in Myanmar, North Korea, South Sudan, Syria, Venezuela, and Yemen, among many others. (1) More recently, the World Health Organization (WHO) established inquiry bodies relating to the COVID-19 pandemic, (2) and events in Ethiopia, Gaza, and Ukraine have led to new inquiry bodies. (3) This body of practice has attracted considerable scholarly interest, which in turn has shaped a common narrative surrounding the historical development of inquiry. This Article challenges the key strands of that narrative by providing a new account of the past practice against which contemporary practice is routinely compared.

The standard account of international commissions of inquiry reflects a "progress narrative." (4) In this account, inquiry bodies have been transformed from limited fact-finding mechanisms on the periphery of diplomacy into powerful actors that apply international law to the world's worst crises and conflicts. (5) International lawyers, diplomats, UN officials, and human rights activists have reimagined the moribund concept of inquiry into an indispensable part of a post-Cold War liberal-internationalist project organized around accountability, anti-impunity, human rights, and international rule of law. (6) This reimagining includes a shift from "pure" fact-finding by inquiry bodies to their anointment as "norm entrepreneurs" (7) and quasi-judicial or quasi-prosecutorial bodies with an overt focus on the authoritative interpretation and application of international law. (8) The progress narrative positions these developments as normatively desirable and legitimizes the further use of inquiry--even if much commentary is dedicated to critiquing the performance of inquiry bodies in individual cases. (9)

The conventional narrative surrounding the contemporary role of inquiry bodies and their evolution can be distilled into three propositions: (1) that there has been a dramatic increase in the establishment of inquiry bodies in the post-Cold War period, (2) that inquiry bodies originated as "pure" fact-finding bodies and have evolved in the post-Cold War period into quasi-judicial bodies that reach authoritative conclusions on questions of international law, and (3) that inquiry has evolved from a means to pursue the diplomatic settlement of bilateral disputes into a normative tool focused on accountability for human rights violations and international crimes.

These propositions are not entirely wrong. In some respects, they are broadly correct. But these shorthand assessments offer a simplified conception of inquiry that distorts what is new (or not) about its contemporary practice. At one level, there is standalone value in seeking to provide a more nuanced and detailed description of past practice. (10) On another level, the standard narrative requires adjustment so that debates about the merits and demerits of inquiry practice--including whether that practice reflects some notion of progress--can proceed from a place of deeper understanding. The standard narrative risks sending the message that contemporary inquiry bodies are so removed from their predecessors--in terms of objectives, design, methodology, or engagement with law--that earlier practice is irrelevant or obsolete, a historical curiosity. (11) The revised account presented here pushes back against that notion, in part by revealing a greater degree of commonality between past and present practice than is typically assumed.

A word about terminology is also needed. This Article adopts the term "inquiry body" to encompass a variety of ad hoc fact-finding mechanisms that go by different names and designations: international commissions of inquiry, fact-finding missions, committees of investigation, inquiry panels, high-level missions, and so on. (12) Taken together, such entities reflect a diverse array of objectives, functions, and working methods; the labels themselves usually provide limited insights into those differences. (13) Some inquiry bodies are established in the midst of conflict; others are retrospective. Some are genuinely sui generis; others reflect a temporary delegation of fact-finding responsibilities by a standing body, sometimes to a sub-unit of its own members. For purposes of this study, an "inquiry body" is an entity established by two or more states or by an international organization on an ad hoc and temporary basis to make non-binding findings of fact in response to a specific incident, dispute, or situation of international concern. (14) It may or may not reach legal conclusions or make recommendations. Inquiry bodies are also collegial in nature, made up of two or more people whether acting in a personal or representative capacity. (15)

This effort to delimit the scope of an "inquiry body" does not entirely resolve the definitional uncertainties that complicate this field of study (a problem with which the existing literature does not seriously engage). For example, some activities that ostensibly involve ad hoc fact-finding may in fact be exercises in high-level diplomacy, or long-term commitments to observation and monitoring. (16) These types of classification questions highlight the diversity of international factfinding activity but complicate efforts to draw neat comparisons between past and present-day practice, as considered further in Part II.

The Article proceeds as follows. Part II examines the claim that there has been a dramatic increase in recourse to inquiry bodies in the post-Cold War period. Part III challenges the proposition that inquiry bodies have only recently began to engage with international law. Part IV then questions whether inquiry has been transformed from a method of diplomatic dispute settlement into an accountability mechanism focused on gross human rights violations and mass atrocities. Part V concludes with some thoughts on the relevance of this adjusted narrative for future practice.

2. PROPOSITION NO. 1: THE DRAMATIC INCREASE IN RECOURSE TO INQUIRY BODIES SINCE 1991

   The academic literature is full of references to a "dramatic increase," "discernible rise," and "proliferation" of inquiry bodies in the post--Cold War period (17)--a veritable "revival of the inquiry function." (18) This creates the impression that inquiry bodies were previously uncommon or that inquiry was largely abandoned following an initial burst of early-twentieth century interest. By contrast, the story goes, inquiry bodies became far more prevalent from the early 1990s on. Leading international law textbooks and treatises reinforce this before-and-after binary by focusing on the relatively few inquiry bodies established under the 1899 and 1907 Hague Peace Conventions, noting only briefly, if at all, the use of inquiry bodies by the United Nations and other international organizations. (19) The specialized literature also tends to undercount the number of inquiry bodies that the League of Nations, the United Nations, and other international organizations established prior to 1992. (20) This Part provides a fuller account of the extent to which states and international organizations made use of inquiry bodies over the course of the twentieth century. Ultimately, the data supports the proposition that recourse to inquiry bodies in the post-Cold War period has increased, but this historical survey shows that the conventional narrative provides an incomplete picture of relevant practice and risks exaggerating the degree of the "turn to inquiry." The exercise also highlights definitional challenges. As noted in the Introduction, whether to classify something as an inquiry body is not always clear and these decisions affect any historical comparison.

   1. A Short History of Inquiry

      1. The 1899 and 1907 Hague Conventions

         States formalized the concept of the international commission of inquiry in the 1899 Hague Convention for the Pacific Settlement of International Disputes. (21) The 1899 Hague Convention provided that states could voluntarily establish ad hoc commissions of inquiry to make non-binding findings of fact regarding "differences of an international nature involving neither honor nor vital interests." (22) With the 1898 Maine incident fresh in the minds of delegates to the 1899 Hague Peace Conference, (23) the proponents of inquiry (chief among them, the Russian diplomat and jurist Friedrich Martens) emphasized two points: (1) that an impartial investigation of the facts surrounding a low-level dispute could contribute to its peaceful settlement through negotiation or arbitration, and (2) that recourse to inquiry would provide a "cooling off period to prevent a rush to war on the basis of misinformation or public hysteria. (24) The...