Commissions of inquiry into armed conflict, breaches of the laws of war, and human rights abuses: process, standards, and lessons learned.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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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.

The problem is that a careful review of experience with national-level commissions inquiring into alleged extrajudicial executions reveals that their performance is plagued by a range of shortcomings. Two contemporaneous examples serve to illustrate some of the problems. The first example comes from Syria where, in response to the killing of a significant number of protesters demanding democratic governance, the government of Syria announced that it would establish a commission of inquiry to investigate allegations that these deaths resulted from the illegal use of lethal forces by the government's security forces. (1) On the one hand, international groups such as Human Rights Watch (HRW) emphasized the need for the government to "[c]arry out an independent and transparent investigation." (2) At the same time, most international actors, including HRW, also insisted that an international investigation was required, on the assumption that a domestic effort would inevitably be deeply flawed.

A short while earlier, Israel had announced the findings of a major commission it had established. It inquired into the circumstances of the targeted killing in July 2002 of Salah Shehadeh, the head of the Operational Branch of Hamas in Gaza, who was alleged by Israel to have killed large numbers of Israeli military personnel and civilians. A one-ton bomb was dropped on his house in Gaza City, killing him, his wife, his assistant, his child, and a total of 13 civilians, of whom eight were children, as well as injuring another 150 civilians. An uproar in Israel and beyond, followed by the intervention of the Supreme Court in response to a petition, led the Israeli government to appoint a special investigatory commission. In its report it found that the strike was disproportionate in the circumstances, largely resulting from an intelligence failure due to "incorrect assessments and mistaken judgments." The report nonetheless exonerated all of those involved. I am not concerned here with the justness of the result, which I am in no position to evaluate. But what is of interest is the functioning of the commission:

* It was not set up under the Israeli law governing commissions of inquiry.

* It had no powers of subpoena.

* It made its report almost nine years after the incident occurred.

* Two of the original three members were ex-Israeli military personnel.

* Its deliberations were in private, and none of the evidence or submissions presented to it are available.

* The final report has not been made public.

* The newspaper Haaretz has questioned whether the six-page summary that was released was written by the commission itself or by the Prime Minister's office. (3)

These two examples, from one part of the world, serve to highlight some of the issues that arise when states announce that they will establish inquiries to examine alleged human rights violations by their own security forces. A more systematic survey of such inquiries, (4) undertaken in response to extrajudicial executions in various countries around the world revealed that the following problems are reasonably common in relation to national-level commissions of inquiry (COIs): (1) the COI is announced but is never actually established; (2) the COI is given a restrictive mandate, which impairs its ability to achieve accountability; (3) the COI is given insufficient funding or resources to enable it to be effective; (4) the commissioners lack the necessary expertise; (5) the COI lacks independence from the government, either in principle or in practice; (6) the COI is unable to provide adequate witness protection, as a result of which key individuals will avoid testifying; (7) the COI is not empowered to obtain access to important evidence; (8) the government fails to make public, respond to, or follow up on the COI's findings; (9) the government fails to initiate prosecutions recommended by the COI, or does so in a manner that ensures that they will not succeed; (10) the COI's report is methodologically flawed, unprofessional, or generally unconvincing; and (11) insufficient information is provided to enable a meaningful assessment of the adequacy of the COI procedure.

In brief, the problem is that commissions can be used very effectively by governments for the wrong purposes: to defuse a crisis, to purport to be upholding notions of accountability, and to promote impunity. The mere announcement by a government of a commission is often taken at face value to mean that the government is "doing something" to address impunity. Because a commission creates the appearance of government action, its announcement often prevents or delays international and civil society advocacy around the human rights abuses alleged. Moreover, an ineffective commission can be more than just a waste of time and resources; it can contribute to impunity by deterring other initiatives, monopolizing available resources, and making subsequent endeavors to prosecute difficult or impossible.

The paradox is that the circumstances that lead to the creation of such inquiries very often carry with them the seeds of an inquiry's subsequent failure. In other words, governments are pressured by the momentum of events, diplomatic considerations such as threatened sanctions, or urgings to do something which they perceive to be contrary to their own interests. Thus the initiative may, from the outset, be pursued in ways designed to minimize its ultimate impact.

One way to respond to these problems with national-level COIs is to try to ensure that the necessary procedural safeguards are followed, and to increase external monitoring of the arrangements made. The other response, which is increasingly common, is to insist that international fact-finding be undertaken, either in place of, or as a complement to, domestic initiatives.

Fact-finding is undertaken by a variety of actors and uses many different forms, including but not limited to international COIs. The goals of these...

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