GROTIUS CENTRE WORKING PAPER SERIES

GROTIUS CENTRE
WORKING PAPER
2014/031-ICL

An Inquiry into the Role of Commissions

of Inquiry in International Law: Navigating
the Tensions between Fact-Finding and
International Law-Application
Larissa van den Herik

Leiden University. The university to discover.

Electronic copy available at: http://ssrn.com/abstract=2586997
 Forthcoming also in (2014) 13 Chinese Journal of International Law, 1–30.

An Inquiry into the Role of Commissions of Inquiry in

International Law: Navigating the Tensions between Fact-Finding and
International Law-Application

Larissa J. van den Herik*

Abstract
Ever since it was created in 2006, the Human Rights Council has established a
significant number of commissions of inquiry. Other than their historic
counterparts, the mandates of these commissions have not been fact-oriented
but have had a strong legal dimension. In this context, questions arise whether
the commissions are primarily acting as fact-finders or rather as de facto law-
applying authorities. Are they supposed to function as self-standing institutional
arrangements, or should they rather operate at the service of other mechanisms?
The overarching and more generic question is: what is the primary function of
human rights commissions of inquiry as established by the Human Rights
Council and to what extent is the invocation of international law instrumental in
fulfilling that function? This paper examines commissions of inquiry through a
historical-comparative approach and demonstrates that contemporary human
rights commissions of inquiry have fundamentally different purposes. Where
the original Hague-inquiries were predominantly transactional in character, the
human rights inquiries rather have alerting and authoritative aspirations.

I. Introduction

1. As the Syrian conflict lingers on, the ad hoc Commission of Inquiry

established by the Human Rights Council and mandated to investigate human
rights violations in Syria has come to show traits of a permanent body. Over a
period of three years, it has informed and alerted the international community
on facts and figures in Syria through a steady output of reports and conference
room papers.1 In parallel, a separate United Nations Mission was created by the

* Professor of Public International Law, Grotius Centre for International Legal

Studies, Leiden University, The Netherlands. Email:
l.van.den.herik@law.leidenuniv.nl
1 The Independent International Commission of Inquiry on the Syrian Arab

Electronic copy available at: http://ssrn.com/abstract=2586997

2

Secretary-General to investigate specific allegations on the use of chemical

weapons.2 In addition to pragmatic questions regarding their interrelationship,3
the co-existence of these international fact-finders raises more fundamental
queries on the role of fact-finding in international law and particularly in matters
related to peace and security and on the concrete functions of commissions of
inquiry in this regard.
2. Clearly, contemporary international commissions of inquiry operate in a
radically different international society than their ancestors of the early 20th
century. More areas of social international life are now regulated by
international law, and through the proliferation of international courts the
international order has become increasingly judicialized. This article therefore
focusses on the trend towards the juridification or even criminalization of
certain commissions of inquiry and the move away from pure fact-finding.4 The
article takes the recent practice of commissions of inquiry constituted under the
umbrella of the Human Rights Council as a case-study. Indeed, since it was
created in 2006 to replace the overly politicized Human Rights Commission, the
Council has established a significant number of commissions of inquiry to
investigate human rights situations or incidents, ranging from Ivory Coast to
Darfur, Libya, Syria, North Korea, Eritrea and Sri Lanka. These commissions
were mandated to investigate human rights violations and occasionally also
specifically to identify responsible perpetrators of crimes. It is noteworthy that
the mandates of these commissions have not been truly fact-oriented but have
had a strong legal dimension. Moreover, in their reports, these commissions

Republic was established by the Human Rights Council on 22 August 2011,

UN Doc. S-17/1. Its reports and conference room papers can be accessed
through the website of the Office of the High Commissioner for Human
Rights (www.ohchr.org).
2 The Mission was established under the authority of General Assembly Res
42/37C and Security Council Res 620 (1988). It delivered the Ghouta report
on 15 September 2013 and its final report on 12 December 2013.
3 On 16 September, the Chair of the Commission of Inquiry announced that in
parallel with the UN Mission, it would also conduct its own investigation on
the use of chemical weapons, particularly in relation to questions of
perpetratorship which were beyond the mandate of the other Mission,
Statement by Paulo Sérgio Pinheiro, Chair of the Independent International
Commission of Inquiry on the Syrian Arab Republic, at the HRC 24th regular
session, Geneva.
4 See e.g. Philip G. Alston, The Criminalization of International Human Rights
Fact-Finding – Key Note Address (Conference on Fact-finding on gross
violations of human rights during and after conflicts, Oslo, Norwegian Centre
for Human Rights, 17-18 November 2011).

Electronic copy available at: http://ssrn.com/abstract=2586997

have not only drawn on the repertoire of human rights law. They have also
tended to apply international humanitarian law and international criminal law.
This practice evokes the query whether these commissions are still properly
called ‘commissions of inquiry’.
3. The developments in the inquiry scene point to the growing conflation
witnessed at the international level between fact-finding and application of the
law. They raise questions about the possibility of drawing a distinction between
fact-finding and law application in the mandates of bodies like commissions of
inquiry established by the Human Rights Council. In fact, the mandates of these
commissions are inherently contradictory as they seemingly predetermine that
violations have been committed and encourage the commissions to use legal
language to “establish facts”. In this context, questions arise whether the
commissions are primarily acting as fact-finders or rather as de facto law-
applying authorities. Are they supposed to function as self-standing institutional
arrangements, or should they rather operate at the service of other mechanisms?
The overarching and more generic question is: what is the primary function of
human rights commissions of inquiry as established by the Human Rights
Council and to what extent is the invocation of international law instrumental in
fulfilling that function?
4. This paper examines commissions of inquiry through a historical-
comparative approach. It contrasts the contemporary human rights
commissions of inquiry with historic inquiries, in particular the vessel inquiries
established pursuant to the Hague Convention of 1899 and 1907 as well as the
League of Nations inquiries. In a similar comparative fashion, the paper also
looks at the institutional setting of the dormant International Humanitarian
Fact-Finding Commission.
5. Revisiting the Hague provisions in section 1, the article first identifies the
essential features of traditional commissions of inquiry. These features
principally regard the nature of the dispute that is submitted to inquiry, the
nature of the evaluation (fact-finding versus legal evaluation), and the legal
status of the report as recommendatory and fully non-committal in nature.
Whereas inquiry commissions were conceptually designed to be exclusively fact-
focused, early practice does display an occasional engagement with law as is
analysed in section 2. However, such invocation of law was always subjected to
the greater ambition of settling the dispute. The Hague commissions of inquiry
thus had a predominant transactional character, in that they aimed to settle a
dispute between two states. The League of Nations commissions were slightly
more conciliatory in nature. But their resort to international law was also still
relatively modest.
4

Section 3 zeroes in on the International Humanitarian Fact-Finding

Commission. It shows that even though this fact-finding commission may, in
theory, have greater inclination to resort to the law, the prevailing view is that
these commissions should operate with the same mediatory spirit as the
traditional commissions of inquiry. Section 4 turns to the UN inquiry
commissions. It differentiates between commissions established by the primary
UN organs on the one hand and commissions established by the Human Rights
Council on the other hand. It examines the New York-Geneva dynamics to
determine the influence of the constitutional environment of these
commissions on their mandate and functioning, and in particular their
invocation of international law. It will be shown that, other than the traditional
Hague Commissions and the International Humanitarian Fact-Finding
Commission which operated to a greater or lesser extent under confidentiality
regimes, the human rights commissions of inquiry have an unmistakably public
nature. Their prime task seems to be raising awareness and mobilizing public
opinion, imposing a certain conflict narrative and preparing a case for action.
These commissions have a strong accountability focus and occasionally they
even engage in naming and shaming exercises. The commissions are thus
overall authoritative in character and they use the language of law, and
increasingly even international criminal law, to assert their authority. In section
5 the argument is made that the Human Rights Council may have appropriated
the concept of inquiry from the Hague Conventions while the role and function
of the new commissions it is establishing is, in fact, manifestly different.

II. The origins of international commissions of inquiry as a dispute

settlement mechanism: the archetype

6. The genesis of international commissions of inquiry as a new construct of

dispute settlement is found in the 1899 Hague Convention.5 The introduction
of this new international mechanism was obviously part of the onmarch
towards international institutionalization that marked the turn of the century,6
but it was also a reaction to a concrete incident. On 15 February 1898, the US
battleship Maine sank. Two national inquiries undertaken by Spain and the US
came to contradictory findings as to the cause of the mysterious explosion that
destroyed the ship. In the context of the already existing overwrought Ibero-US

5 See Norman L. Hill, International Commissions of Inquiry and Conciliation,

15 International Conciliation (1932-33), 89, 91 for some sporadic examples of
treaties providing for inquiry and conciliation prior to 1899.
6 David Kennedy, The Move to Institutions, 8 Cardozo Law Review (1987) 841.
relations over Cuba, this incident precipitated the Spanish-American war’s
blastoff. 7 It was against this background, that the Russian proposal for an
international commission of inquiry fell on fertile ground during the Hague
Conference one year later. As the intellectual father of the concept, Friedrich
Martens believed that an impartial establishment of the facts and circumstances
surrounding international disputes would help cooling off emotions. 8 The
principal idea was to win time, to pre-empt an exacerbation of a conflict and to
clarify facts before diverging appreciations and presentations of the situation
would lead to a complete deadlock.9
7. Having Maine in mind, States agreed to the proposal which was subsequently
codified and regulated in Title III of the 1899 Hague Convention on the
Peaceful Settlement of Disputes. However, Martens’ conceptual brainchild was
adjusted to some political realities. Most importantly, out of fear for shrouded
intervention, smaller States negotiated that only disputes “involving neither
honor nor vital interests” could be submitted to inquiry. 10 According to the
Hague provisions, the commission would be composed as in arbitration, i.e.
each State party to the dispute would select two commissioners who would
jointly select a fifth one.11 The working methods and procedure would initially
be established ad hoc per inquiry, but this unsatisfactory situation was remedied
by the 1907 Hague Convention which provided more detailed standard
procedural rules that could govern all inquiry exercises.12 The specific aim of
commissions of inquiry was prescribed as facilitating a solution by elucidating
the facts through an impartial and conscientious investigation.13 The diplomatic
nature of the exercise was emphasized in a number of ways. Firstly, the
provisions instructed that the commission’s final report should be limited to a

7 See e.g., J.G. Merrills, International Dispute Settlement (5th edn, Cambridge
University Press 2011), 41-42.
8 Arthur Eyffinger, Friedrich Martens: A Founding Father of the Hague
Tradition – The Fourth Friedrich Martens Memorial Lecture, 15 ENDC
Proceedings (2012) 13, 30.
9 N. Politis, Les Commissions Internationales d’Enquête, Revue Générale de
Droit International Public (1912) 149, 153.
10 Article 9 of the Convention for the Pacific Settlement of International
Disputes (Hague Convention I) (adopted 29 July 1899, entered into force 4
September 1900). See also Merrills, above n. 7, 42.
11 Article 9 jo. 32 of Hague Convention I (1899), above n. 10.
12 Article 9 jo. 35 of the Convention for the Pacific Settlement of International
Disputes (Hague Convention I) (adopted 18 October 1907, entered into force
26 January 1910).
13 Article 9 of both Hague Conventions I (1899 and 1907), above n. 10 and 12.
6

statement of facts and in no way have the character of an arbitral award. 14

Secondly, this report would not be binding but rather leave the State parties
entirely free in their choice of what effect was to be given to the report.15 And
thirdly, in the 1899 Hague Convention it was stipulated that the report would
be communicated to the parties only and thus not be made public.16 However,
in contrast to the 1899 rules, article 34 of the 1907 Hague Convention provided
that the report be read at a public sitting of the Commission.
8. Although presented as an independent dispute settlement mechanism, the
prescribed mandate of commissions of inquiry also had an articulate functional
dimension in that they were meant to facilitate a solution. In fact, the design of
the Hague Conventions vested commissions of inquiry with a dual function. As
observed by Jean-Pierre Cot, the establishment of facts is a quasi-arbitral
function whereas the aim to facilitate a settlement of the dispute is quasi-
mediatory in nature.17 These missions may coincide where the elucidation of
facts is sufficient to settle the dispute, but often this will not be the case. In the
majority of situations, a fact-finding exercise will be part of a greater dispute
settlement scheme and the inquiry will be an instrument at the disposal of other
methods of dispute settlement. For this reason, Cot described the inquiry
commissions as being in a “permanent state of imbalance”, as they were based
on a “fundamental misconception”.18 Alternatively, Collier and Lowe submitted
that inquiry may serve different purposes depending on the nature of the
underlying dispute. In situations in which a varied perception of the facts is at
the origin of the dispute, inquiry can possibly independently settle it, whereas
disputes that also have a legal dimension cannot be solved through inquiry
alone. In such situations inquiry can be utilized to facilitate subsequent dispute
settlement mechanisms.19 However, this view presupposes that it is possible to
draw clear distinctions between factual and legal dimensions of a conflict which,
in practice, is often not the case. Writing in 1912, Politis voiced criticism similar
to Cot. He called the new construct of inquiry a “parasite institution” destined
to disappear as an independent means of dispute settlement. In Politis’ view, if

14 Article 14 of Hague Convention I (1899) and 35 of Hague Convention I

(1907), supra n. 10 and 12.
15 Ibid.
16 Article 13 of Hague Convention I (1899), supra n. 10.
17 Jean-Pierre Cot, International Conciliation (Europa Publications London
1972), 43.
18 Ibid.
19 John Collier and Vaughan Lowe, The Settlement of Disputes in International
Law: Institutions and Procedures (Oxford University Press 1999), 24.
mediation and arbitration had functioned properly as dispute settlement
mechanisms, there would have been no need for a new construct. It was only
because mediation was discredited by its political nature and arbitration
perceived as too constraining, that the need was felt to devise a new tool. A tool
that married the independence of arbitration with the flexibility and souplesse of
mediation.20 Politis thus characterized inquiry as arbitration in disguise, which
had the merit that it could better gain the confidence of states because the
outcome was not binding.21
9. The imminent contradictions of the Hague inquiry constellation, as observed
by Cot and Politis, became reality in the five situations in which commissions of
inquiry came in action guided by the Hague provisions. These and other
interbellum inquiries all deviate in their own way from the “Platonic Form of
Inquiry” as codified in the Hague Conventions.

III. The historic inquiries

10. The historic inquiries were undertaken in an era marked by a move towards
organization and institutionalization of the international society. In this
atmosphere where the role of international courts and other judicial methods
was still peripheral and incipient, the technique of inquiry was tested and shaped.

III.A. The vessel inquiries: outsourced diplomacy

11. The sea provided the theater stage on which the first commissions of
inquiry performed their role. The so called vessel inquiries looked into
questions of the precise cause and location of certain flotilla-attacks. They are:
(1) the Dogger Bank inquiry concerning the firing by a Russian warship at a UK
fishing fleet which it erroneously held to be Japanese torpedo boats. The
commission was asked to identify all the circumstances surrounding the
incident, including the question where the responsibility lied and the degree of
blame to be attached (Russia-UK, report issued in 1905); 22 (2) the Tavignano
inquiry dealing with the arrest by Italy during the Turco-Italian war of 1911-1912
of a French steamer which it believed to be part of a greater scheme involved in
shipping Turkish contraband. The principal question was whether the incident
had taken place on the high seas or rather in the Tunisian territorial waters

20 See Politis, above n. 9, 149-150.

21 Ibid., 156.
22 Incident in the North Sea: The Dogger Bank Case (Great Britain and Russia)
(date of inquiry agreement: 25 November 1904, date of report: 26 February
1905).
8

(France-Italy, 1912);23 (3) the Tiger inquiry which examined a similar situation and
similar questions regarding the exact situ where a German submarine had sunk a
Norwegian ship allegedly carrying contraband (Germany-Norway, 1917);24 (4)
the Tubantia inquiry which investigated the exact cause of the sinking of a Dutch
vessel (Germany-Netherlands, 1922); 25 and (5) some decades later the Red
Crusader inquiry which investigated an encounter between a Danish fisheries
protection vessel and a British trawler that allegedly was fishing illegally near the
Faroe Islands. It was arrested by the Danish vessel, escaped and was
subsequently fired at by the Danes and severely damaged. The commission was
asked to investigate and report whether and where the British trawler had been
fishing, the circumstances of the arrest of the Red Crusader by the Danish vessel
and the facts and incidents thereafter (United Kingdom-Denmark, 1962).26
12. The five commissions blew life into the Hague provisions and reaffirmed
the distinctive potential of inquiry as a modality of dispute settlement. However,
they also revealed the limits of inquiry as an independent mechanism and, each
in their own way, the five commissions departed from the ideal model and the
techniques and principles of inquiry as accepted in The Hague. In contrast to
Article 9 of the 1899 Hague Convention, the Dogger Bank inquiry essentially
engaged with a truly sensitive and potentially explosive matter which surely
involved honour and essential interests. It thus de facto expanded the types of
disputes amenable to inquiry processes.27 A perhaps more disruptive departure
was the express instruction in the terms of reference to take on questions of
blame and responsibility, thereby effectively assigning a more arbitral function
to the commission that went beyond mere fact-finding. This dimension of the
mandate had been inserted upon the proposal by the UK which argued that
these were also questions of fact. After an initial objection, Russia accepted this
part of the mandate having been reassured that the Commission would not

23 Capture of the “Tavignano” and cannon shots fired at the “Canouna” and the
“Galois” (France and Italy) (date of inquiry agreement: 20 May 1912, date of
report: 23 July 1912).
24 The Steamship “Tiger”: Sinking of the steamer “Tiger” (Germany and Spain)
(date of report: 9 November 1918).
25 Loss of the Dutch Steamer “Tubantia” (Germany and The Netherlands) (date
of inquiry agreement: 30 March 1921, date of report: 27 February 1922).
26 “Red Crusader” Incident (Great Britain and Denmark) (date of inquiry
agreement: 15 November 1961, date of report: 23 March 1962).
27 See Merrills, above n. 7, 44 and Cot, above n. 17, 51. A proposal by The
Netherlands supported by Russia tabled at the 1907 Conference to codify this
development and to delete the restriction of Article 9 was not acceptable to
other States, as explained by Politis, above n. 9, 172-175.
purely examine the blame of Russian officers.28 The parties thus intentionally
attributed to the Commissions the power to engage with legal questions and by
so doing they went beyond the letter of the Hague provisions while pretending
not to. 29 Aware of its primary function to settle the dispute and to prevent
further escalation, the Commission sought to underplay the legal dimension of
its mandate. 30 It concluded, the Russian commissioner dissenting, that the
Russian admiral had no reason to open fire, but added that these findings were
not “of a nature to cast any discredit upon the military qualities or the humanity
of Admiral Rojdestvensky, or the personnel of his quadron.” 31 The Tubantia
inquiry came to equally reserved findings. It concluded that the Tubantia was
sunk by a torpedo launched by a German submarine, but added that it was not
in a position to determine whether the U-boat’s destructive actions had taken
place knowingly or as a result of error.32 The Red Crusader, in turn, was more
explicit in terms of its findings and its willingness to engage with legal
questions. In its report, the Commission trespassed its factual mandate and
made several evaluations of a legal nature, inter alia, that the violent actions by
Commander Collins exceeded the legitimate use of armed force and could not
be justified.33
13. In practice, several inquiries also departed from Article 35 of the Hague
Convention which reflects another essential trait of inquiry and reads,

“The report of the commissions is limited to a statement of facts, and

has in no way the character of an award. It leaves to the parties entire
freedom as to the effect to be given to the statement”.

Despite this provision, the parties in the Tiger inquiry agreed in advance to

28 See Politis, above n. 9, 159-160.

29 Preamble of the inquiry agreement, above n. 22.
30 See Merrills, above n. 7, 44. See also Nissim Bar-Yaacov, The Handling of
International Disputes by Means of Inquiry (Oxford University Press 1974),
72-81 and R. N. Lebow, Accidents and crises: The Doggerbank Affair, 31
Naval War College (1978), 1, 66.
31 J.B. Scott, The Hague Court Reports (Oxford University Press 1916), 410 as
cited by Merrills, above n. 7, 43. Also see Cot, above n. 17, 52 who indicates
that the aim of the inquiry was not to identify criminal responsibilities but
rather centred on the power to reprimand.
32 The report was reproduced in 16 American Journal of International Law 485-
492.
33 See page 22 of the report, reproduced in 35 ILR 485 as described by Cot,
above n. 177, 52 and Merrills, above n.7, 50.
10

accept the outcome as binding. 34 Differently, the Tavignano inquiry was not
meant to settle the dispute on its own, but it was rather envisaged as a precursor
to arbitration. The establishment of the commission was in effect accompanied
by an agreement which foresaw that upon receiving the report the legal aspects
of the case would be referred to an arbitral panel. The arbitration compromis
stated explicitly that the court of arbitration had to take the inquiry report into
account. In this situation, inquiry thus formed an inseparable element of the
arbitration procedure.35

III.B. The Letelier inquiry: arbitration in disguise

14. Building upon the Hague provisions, States and in particular the US started
to negotiate bilateral treaties establishing commissions of inquiry. These are the
so called Knox (Taft) and Bryan arbitration treaties.36 These treaties reinforced
the practice to embed inquiry in broader dispute settlement schemes and to
bedim the distinction between fact finding and law application. They codified
the Dogger Bank approach to apply inquiry to all types of disputes, and in
particular those involving honour and essential interests. The Knox treaties in
particular blurred the line between inquiry and conciliation as they authorized
the inquiry commission to make recommendations.37 The Knox treaties did not
enter into force and the Bryan treaties were never truly implemented, and hence
their contribution to shaping the contours of commissions of inquiry remained
more of a conceptual nature.38 Finally in this context, mention may be made of
the Final Protocol to the Locarno Treaties which envisaged the establishment
of a Permanent Conciliation Commission that could gather information for the
purposes of inquiry. It is noteworthy that this panoply of possibilities for
inquiry did not result in an increased and effective use of the mechanism.39
15. The only inquiry that emanated from the Bryan treaties was the Letelier

34 See Merrills, above n. 7, 46.

35 See Cot, above n. 177, 54. Interestingly, arbitration did eventually not take
place, and after the inquiry the matter was settled out of court when Italy
agreed to pay satisfaction. See also Merrills, above n. 7, 45.
36 See more elaborately Hill, above n. 5, 91.
37 Merrills, above n. 7, 48.
38 Inspired by the early Bryan treaties, Argentina, Brazil and Chile concluded the
so-called ABC treaty in 1915. The UK made similar treaties with Brazil and
Chile in 1919 and sixteen American states concluded the Gondra treaty in 1923
as well. See Cot, above n. 17, 66-74.
39 Agnieszka Jachec-Neale, Fact-Finding, Max Planck Encyclopedia of Public
International Law (2011), 8.
inquiry that took place half a century later. This inquiry concerned a rather
unique set of circumstances. The central incident of the inquiry was the 1976
car bomb killing of the former foreign minister of Chile, Letelier in Washington
DC. Relatives of Letelier and other victims held Chile responsible and sued this
State in US courts. The plea of sovereignty in relation to jurisdiction was
rejected and damages were awarded. 40 However, Chile refused to pay
compensation, and an attempt to execute against assets of the Chilean national
airline was rejected by US courts. 41 The United States then presented an
international claim against Chile on behalf of the relatives referring to the Bryan
treaties. Without admitting liability, Chile agreed to make ex gratia payments in
order to facilitate normalization of relations. The Commission that was
established pursuant to the 1914 Treaty had the sole assignment to consider the
amount of compensation due, as if liability was established. This assignment is
not purely factual in nature and it thus may come as no surprise that the
Compromis stipulated that the amount of the compensation had to be determined
“in accordance with applicable principles of international law”.42 Following this
instruction, the Commission took the general rule on compensation as
enunciated by the Permanent Court of International Justice in the Chorzow case
as the authoritative and guiding principle. 43 In his concurring Opinion,
Commissioner Vicuña explicated in more detail how the decision followed
established precedent and formed part of “the mainstream of legal opinion”.44
He suggested that the decision should be understood as forming part of a trend
initiated by the Inter-American Court of Human Rights that distinguished
between compensation principles applicable to human rights-related damages as
opposed to those governing compensation for loss of property or other
economic interests. 45 On the question of diplomatic protection, Vicuña
presented the decision as an important innovation in international law and as
“advancing the frontiers of international law”, since the Chilean or dual
nationality of some of the persons protected by the United States was not raised

40 Letelier v. Republic of Chile 63 ILR (1980), 378.

41 Letelier and Others v. Republic of Chile and Linea Aerea Nacional Chile 79
ILR (1984), 561.
42 Compromis, appended to Agreement, 4.
43 P.C.I.J., Series A, No. 17, 47 (“Reparation must, as far as possible, wipe all the
consequences of the illegal act and reestablish the situation which would, in all
probability, have existed if that act had not been committed”).
44 Orrego Vicuña, Concurring Opinion, para. 12.
45 Ibid., para. 2.
12

as a bar. 46 These observations together with some reflections on the non-

existence of punitive damages, which expenses ought to be compensated and
the question of interests underscore the overall legal orientation of the Letelier
Commission of Inquiry. Other features of this inquiry that exhibit a leaning
towards a more arbitral or even judicial approach include the fact that the States
agreed in advance to treat the outcome as binding, and that the Commission
was dominated by international judges, including an ICJ judge as president and
a judge from the European Court of Human Rights. Perhaps more symbolically,
the Commissions had its seat at the facilities of the Inter-American Commission
of Human Rights. Despite having its foundational basis in the early 20th century
Bryan treaties, the inquiry exercise thus bore significant traits of arbitration
rather than inquiry as originally conceptualized. This development may well
have been influenced by the temporal setting, at which international law already
played a more prominent role in managing international relations, as well as by
the concrete subject-matter of compensation which has a strong legal
dimension.

III.C. The territorial inquiries: at the service of the League

16. Commissions of inquiry of an entirely different nature functioned in the

multilateral setting of the League of Nations, governed by Articles 11, 12, 15
and 17. The Council was the dominant organ instituting these commissions and
some of the most important inquiries concerned (1) the Aaland Island affair of
1921,47 (2) the frontier dispute between Iraq and Turkey of 1924-1926,48 (3) the

46 Ibid., para. 3
47 League of Nations, Report presented to the Council of the League by the
Commission of Rapporteurs, Genève 16 April 1921, Document number
21/68/106. See also Norman J. Padelford and K. Gosta A. Anderson, The
Aaland Islands Question, 33 American Journal of International Law (1939),
465. See also generally on this affair: James Barros, The Aland Islands
Question: Its Settlement by the League of Nations (Yale University Press
1968); Charles Noble Gregory, The Neutralization of the Aaland Islands, 17
American Journal of International Law (1923), 63; Philip Marshall Brown, The
Aaland Islands Question, 15 American Journal of International Law (1921),
268.
48 See generally: Sarah Shields, Mosul Questions: Economy, Identity, and
Annexation, in: Reeva Spector Simon and Eleanor H. Tejirian (eds), The
Creation of Iraq 1914-1921 (Columbia University Press 2004); Nevin Cosar
and Sevtap Demirci, The Mosul Question and the Turkish Republic: Before
and After the Frontier Treaty, 1926, 35 Turkish Yearbook of International Law
(2004), 43; Quincy Wright, The Mosul Dispute, 20 American Journal of
Greco-Bulgarian incident of 1925, 49 (4) the Northern Chaco affair of 1928-
1935,50 and (5) the Sino-Japanese conflict of 1931-1935.51
17. These inquiry exercises departed from the Hague model in a number of
respects. They mostly concerned territorial disputes rather than vessel attacks,
and thus all matters of essential interest. More importantly, the inquiries were
generally tasked to elucidate larger situations and patterns of facts rather than
very concrete isolated incidents. It were League organs or representatives who
selected the commissioners and these did not include nationals of states
involved in the dispute. Most notably, the commissions did not limit their
exercises to pure fact-finding and often they developed a comprehensive
dispute settlement regime. Occasionally the commissions were even expressly
instructed to present such recommendations that would facilitate the League
organs to find the most adequate avenues to settle the dispute or to otherwise
engage in conciliatory exercises.52

III.D. The (meta)morphosis of the archetype

18. The above precursory overview presents a mixed picture. In the Hague
Conventions, inquiry was conceptualized as an autonomous diplomatic means
of dispute settlement. The essence of inquiry was to provide an impartial
account of the facts and circumstances that had led to an inter-state dispute.
The Hague conventional archetype was only blended with arbitral features with

International Law (1926), 453, B. Keith, The League of Nations and Mosul, 8
Journal of Comparative Legislation and International Law (1926), 38, 39.
49 James Barros, The League of Nations and the Great Powers, The Greek
Bulgarian Incident 1925 (Clarendon Press 1970), 89
50 Report of the League of Nations Commission on the Chaco Dispute between
Bolivia and Paraguay, Signed 9 May 1934, 28 American Journal of
International Law (1934), 137. See generally: L.H. Woolsey, The Chaco
Dispute, 28 American Journal of International Law (1934), 724, 726-28; Lorna
Lloyd, The League of Nations and the Settlement of Disputes, 157 World
Affairs (1995), 160, 168.
51 See generally: Tyler Dennett, The Lytton report, 26 The American Political
Science Review (1932), 1148; Sandra Wilson, Containing the Crisis: Japan’s
Diplomatic Offensive in the West, 1931-33, 29 Modern Asian Studies (1995),
337; David M. Gordon, Historiographical Essay: The China-Japan War, 1931-
1945, 70 Journal of Military History (2006), 137, Arthur K. Kuhn, The Lytton
Report on the Manchurian Crisis, 27 American Journal of International Law
(1933), 96.
52 See Cot, above n. 17, 250 and Rapport du Secrétaire Général sur les Méthodes
d’Établissement des Faits, UN Doc. A/5694 (1 May 1964) para. 143.
14

regard to the proceduralization of its working methods. However, in their

practice, commissions of inquiry displayed a greater inclination towards a
certain juridification.
19. The actual inquiry practice of the first half of the 20th century can be
epitomized through a threefold typology. The first type are the vessel inquiries
that stayed closest to the archetype as exercises of outsourced diplomacy. Even
if in practice or through their mandate, these Commissions engaged with issues
of responsibility and other legal questions, they remained predominantly
diplomatic and, despite some exceptions, these inquiries settled disputes
independently. On several occasions, States like Russia in Dogger Bank and
Germany in Tubantia did effectively decide to pay damages upon receipt of the
report. The second type is the Letelier inquiry which was effectively an
arbitration in disguise, both in terms of setting and subject-matter. The
mandate, the report issued by this inquiry commission and in particular
Vicuna’s dissent were all truly legal in nature and there was no independent
factual inquiry to be made. The third type are the territorial inquiries. These
commissions functioned in the predefined institutional setting of the League of
Nations, and the commission fulfilled their mandate at the service of the other
League organs. They endeavored to facilitate the political settlement of a
dispute by offering an authoritative account of the facts that could serve as a
basis for further institutionalized diplomatic engagement by the League and
occasionally by offering concrete recommendations.
20. The mechanism of inquiry was thus utilized in different institutional and
extra-institutional settings, but always on an ad hoc basis. The Commissions were
all specifically endowed with a distinct role in settling a concrete ongoing or
past dispute either independently or as part of a greater scheme and
institutionalized structure that blended inquiries with techniques of conciliation
or used inquiry as a precursor or substitute to arbitration. Given the time frame,
the commissions examined were focused on the settlement of inter-state
disputes and the restoration of inter-state relations. Some inquiries
approximated the archetype of inquiry as epitomized in the Hague Regulations
more than others. Even if trends towards the use of legal terms and the
inevitable intertwined blurring of the fact/law divide was already visible, overall
the inquiries functioned as mechanisms of peace rather than as instruments of
law fully embedded in a legal framework and procedure. They were
predominantly transactional in nature and facts were established with a view to
settling a given dispute or facilitating the settlement thereof. Their primary goal
was thus not to condemn and/or impose an objective and formal legal truth,
but rather to appease and to calm animosities. Even inquiries that did not
manage to fully disclose ‘the truth’ could have a pacifying effect because of the
cooling off-period that came along with their operation or because they helped
States to accept certain findings in the name of truth.53 In the words of Politis,
these inquiries generally had, or were supposed to have, the effect of a ‘calmant
salutaire’.54
IV. The International Humanitarian Fact-Finding Commission

21. The contemporary international society has become far more regulated and
institutionalized than it was a century ago. Inquiries and fact-finding exercises
have followed this trend and are generally provided for in specialized treaty-
regimes or embedded in structures of an international organization.55 Examples
of treaties that provide for inquiry as a modality of dispute settlement beyond
the setting of human rights and peace and security are the Convention on
Environmental Impact Assessment in a Transboundary Context adopted in Espoo,
Finland in 1991, 56 the 1997 Convention on the Law of Non-navigational Uses of

53 See Politis, above n. 9, 172.

54 Ibid.
55 See for a good overview of fact-finding and inquiries in different settings:
Henry G. Schermers and Niels M. Blokker, International Institutional Law (5th
rev. edn, Martinus Nijhof Publishers 2011), 467-479.
56 The aim of this Convention is to prevent adverse transboundary impact of
national activities. In Appendix IV, it provides for inquiry in a non-compulsory
manner. The specific inquiry task in case of dispute would be to determine
whether a given activity is likely to have transboudary impact. In line with the
subject-matter, the rules stipulate that the commissioners selected should be
scientific or technical experts and they should offer their opinion based on
accepted scientific principles.
16

International Watercourses, 57 and the Convention on International Civil Aviation, also

known as the Chicago Convention that entered into force in 1947.58

22. The International Humanitarian Fact Finding Commission (IHFFC) is also

treaty-based. It was established by Article 90 of Additional Protocol I.59 This
Commission, the first ever permanent fact finding mechanism,60 was borne out of
compromise and was subjected to such stringent consent requirements that it
has never been used. Or in the words Frits Kalshoven, former President of the
IHFFC, the Commission is a sleeping beauty with some unattractive
birthmarks.61 It has competence to “enquire into any facts alleged to be a grave
breach as defined in the Convention and the Protocol or other serious violation

57 Article 33 of this Convention orders the establishment of a Fact Finding

Commission, if parties have not been able to settle their dispute through other
means. Article 33(8) reads: “The Commission shall adopt its report by a
majority vote, unless it is a single-member Commission, and shall submit that
report to the parties concerned setting forth its findings and the reasons
therefor and such recommendations as it deems appropriate for an equitable
solution of the dispute, which the parties shall consider in good faith”. See for
an appraisal, L. Boisson de Chazournes, The Role of Diplomatic Means of
Solving Water Disputes: A Special Emphasis on Institutional Mechanisms, in:
Resolution of Water Disputes (The Permanent Court of Arbitration/Peace
Palace Papers, Kluwer Law International 2003).
58 Article 26 of this Convention reads: “In the event of an accident to an aircraft
of a contracting State occurring in the territory of another contracting State,
and involving death or serious injury, or indicating serious technical defect in
the aircraft or air navigation facilities, the State in which the accident occurs
will institute an inquiry into the circumstances of the accident, in accordance,
so far as its laws permit, with the procedure which may be recommended by
the International Civil Aviation Organization. The State in which the aircraft is
registered shall be given the opportunity to appoint observers to be present at
the inquiry and the State holding the inquiry shall communicate the report and
findings in the matter to that State.” Interestingly, Annex 13 to the Convention
specifies in Standard 3.1 that, “the sole objective of investigation of accidents
or incidents shall be the prevention of accidents or incidents. It is not the
purpose of this activity to apportion blame or liability.”
59 See for an analysis of its establishment, Frits Kalshoven, The International
Humanitarian Fact-Finding Commission: Its Birth and Early Years, in: Erik
Denters and Nico Schrijver (eds.), Reflections on International Law from the
Low Countries (Martinus Nijhoff Publishers 1998), 201-215.
60 Erich Kussbach, The International Humanitarian Fact-finding Commission, 43
International and Comparative Law Quarterly (1994), 174, 174.
61 Frits Kalshoven, The International Humanitarian Fact-Finding Commissions:
A Sleeping Beauty?, 4 Humanitäres Völkerrecht (2002), 213, 213.
of the Convention or of this Protocol”.62 Although embedded in Protocol I,
this formulation leaves the possibility open that the IHFFC would also entertain
requests related to non-international armed conflicts at the very least as regards
allegations related to common Article 3. 63 Moreover, the competence of the
IHFFC could even be greater if all parties to the conflict consent or if the
consent requirement is overtaken by a Security Council referral under Chapter
VII.64 The argument has even been made that the IHFFC might also be willing
to assert competence over situations of internal disturbances and tension.65 But
the question arises through which lenses the Commission would establish its
facts in such situations as there cannot be an allegation that there is a serious
violation of the Convention if there is no state of armed conflict.
23. The Commission’s primary purpose is to ensure compliance with the
Geneva Conventions and Additional Protocol I.66 Its true identity is ambiguous.
On the one hand, it is called a fact-finding commission and its mandate is
specifically to enquire into facts. This is also reflected in its composition, as its
members are not only scholars and practitioners of public international law and
judges, but also medical doctors, high ranking military experts and diplomats,
serving in their personal capacity. 67 On the other hand, in determining its
competence, the Commission must at least interpret what is a serious violation of
the Convention. In contrast to the grave breaches, this has not been spelled out
in the Geneva Conventions and thus requires a legal appraisal.68 Furthermore,

62 Article 90, para. 2(c)(i) of Additional Protocol I.

63 Luigi Condorelli, La Commission International Humanitaire d’Établissement
des Faits: Un Outie Obsolète ou un Moyen Utile de Mise en œuvre du Droit
International Humanitaire?, 83 International Review of the Red Cross (2001),
393, 401. The IHFFC has determined in the early stages of its existence that it
was competent to act in situation of non-international armed conflict, see for
references: Jean d’Aspremont and Jérôme de Hemptinne, Droit International
Humanitaire (Pedone 2012), 386.
64 See e.g., Condorelli, above n. 63, 402; Kussbach, above n. 60, 184
65 Heike Spieker, International (Humanitarian) Fact-Finding Commission, Max
Planck Encyclopedia of Public International Law (2009).
66 See Kussbach, above n. 60, 176; Michael Bothe, Fact-finding as a Means of
Ensuring Respect for International Humanitarian Law, in: Wolff Heintschel
von Heinegg and Volker Epping (eds), International Humanitarian Law Facing
New Challenges: Symposium in Honour of Knut Ipsen (Springer 2007), 249-
267.
67 Charles Garraway, The International Humanitarian Fact‐Finding Commission,
34 Commonwealth Law Bulletin (2008), 813, 815 and Kussbach, above n. 60,
175.
68 ICRC Commentary on the Additional Protocols to the Geneva Conventions of
18

Article 90(5)(a) requires the Commission to report on findings of fact and make
such recommendations as it may deem appropriate. This recommendatory
function also seems to go beyond mere inquiry purposes. According to the
Commentary, the recommendations can be seen as a first step towards
mediation, a view shared by former IHFFC president Kussbach.69
24. Respective Presidents and other members of the IHFFC have displayed
different visions on the Commission’s functionality. Kalshoven, the first
President, mentioned a variety of purposes, including the establishment of a
historical record, exposing the truth, or laying bare facts pointing to the
responsibility of a party, providing grounds for compensation and even prima
facie identification of individuals who might be criminally responsible. 70 In
contrast, Kussbach and Garraway submitted that the task of the Commission
was not to name and shame or condemn at all but rather to restore an attitude
of respect for the Geneva Conventions and Additional Protocol I,71 and to try
and resolve, or perhaps mitigate, the conflict. The confidentiality of the report
reinforces this latter view.72 Reminiscent of the words of Martens, Garraway has
observed that the task of the Commission is to “try to take some of the heat out
of the propaganda wars that develop at present.”73

V. Inquiry in UN context

25. Article 33 of the UN Charter encourages States to settle their disputes

peacefully and mentions inquiry as an independent means of dispute settlement.
The General Assembly has repeatedly promoted the use of fact-finding as a
means of dispute settlement for states 74 and it even set up a UN Panel for

12 August 1949 (1987) 1045-1046. See also Kussbach, above n. 60, 176.
69 ICRC Commentary on the Additional Protocols to the Geneva Conventions of
12 August 1949 (1987) 1050 as cited by Kussbach, above n.60, 179.
70 See Kalshoven, above n. 59 and 61, 213-216.
71 See Kussbach, above n. 60, 183-184; Garraway, above n. 67, 815.
72 It should be noted that the obligation of confidentiality is directed to the
IHFFC and not to the parties. See Article 90(5)(c), as noted by L. Condorelli,
above n. 63, 399.
73 See Garraway, above n. 67, 815.
74 See e.g., GA Res 2329 (XXII) (18 December 1967), as well as the Manila
Declaration on the Peaceful Settlement of International Disputes, GA Res
37/10 (15 November 1982), UN Doc A/RES/37/10. Upon the General
Assembly’s request, the Secretary-General prepared two reports on fact-finding
methods used in international relations, see Rapport du Secrétaire Général sur
les Méthodes d’Établissement des Faits, UN Doc. A/5694 (1 May 1964), para.
Inquiry and Conciliation as early as 1949.75 However, this panel has never been
used. 76 Alternatively, the primary organs of the United Nations can establish
fact-finding bodies on an ad hoc basis, and they have done so on several
occasions. 77 These bodies generally operate within the broader setting and
overall UN objective to maintain and restore international peace and security,78
which is more comprehensive than pure inter-state dispute settlement. The new
Human Rights Council has also started to establish commissions of inquiry.
This section contrasts the different commissions with a view to identifying the
precise role and function of human rights commissions of inquiry within the
greater UN inquiry constellation. It subsequently examines how the role and
functions of commissions of inquiry informs their engagement with and
invocation of international law.

V.A. The institutional framework

26. The only primary organ of the United Nations that has expressly been
vested with an inquiry competence is the Security Council. Pursuant to Article
34 of the UN Charter, the Security Council may investigate any situation or
dispute whose continuation might endanger international peace and security.
The investigatory power is thus geared towards prevention.79 In his Agenda for
Peace, Secretary-General Boutros-Ghali re-emphasized the importance of fact-
finding as a tool for preventive diplomacy and as part of an early warning
system, and encouraged an increased resort to fact-finding by the UN primary

144, and Report of the Secretary-General on the Methods of Fact-Finding, UN

Doc. A/6228 (22 April 1966).
75 GA Res 268D (III) (28 April 1949) and UN Doc. A/4686-S/4632 (1961).
76 See Schermers and Blokker, above n. 55, 477. See for later Dutch proposals for
a permanent fact-finding agence: J.H. Leurdijk, Fact-finding: Its Place in
International Law and International Politics, 14 Netherlands International Law
Review (1967), 141.
77 Cf. Articles 22 (General Assembly), 29 (Security Council) and 99 (Secretary-
General). See also the Declaration on Fact-Finding by the United Nations in
the Field of the Maintenance of International Peace and Security, GA Res
46/59 (9 December 1991), UN Doc A/RES/46-59. See generally: E.A.
Plunkett, UN Fact-Finding as a Means of Settling Disputes, 9 Virginia Journal
of International Law (1968), 154 and Rapport du Secrétaire Général, above n.
52, para. 149-386.
78 See Rapport du Secrétaire general, above n. 52, para. 144.
79 T. Schweisfurth, Article 34, in: Bruno Simma and others (eds), The Charter of
the United Nations: A Commentary (3rd edn, Oxford University Press 2012),
1089-1091.
20

organs. 80 A more technical and literal understanding of the purpose and

function of Article 34 would be that the Security Council’s investigative power
under Chapter VI can only be used to determine competence, i.e. to determine
whether a given situation is of such a nature that it merits Security Council
engagement.81 Security Council investigation beyond those purposes cannot be
based on Article 34, and must be grounded on the theory of implied powers.
Such implied powers can possibly be derived from Article 29 in conjunction
with Article 24, 36 or Article 39 of the UN Charter.
27. The mainstream view is that investigations pursuant to Article 34 are
mandatory and create obligations for states to cooperate under Article 25 of the
UN Charter.82 They are considered substantive decisions and thus governed by
the voting procedure of Article 27(3). Since they are “decisions” taken under
Chapter VI, this effectively means that permanent members are not able to
exercise their veto if the inquiry mission concerns a dispute in which they are
involved. 83 The argument has been presented that Security Council inquiries
based on implied powers, not derived from Article 39, are procedural decisions
governed by Article 27(2). 84 Such a construction would also mean that the
establishment of commissions of inquiry cannot be vetoed by the P5. It must be
noted, however, that Article 34 has fallen into disuse. Common practice today
is that the Security Council requests the Secretary-General to establish a
commission of inquiry. Such a request can be made under Chapter VI 85 or

80 An Agenda for Peace; Preventive diplomacy, peacemaking and peacekeeping,

Report of the Secretary-General pursuant to the statement adopted by the
Summit Meeting of the Security Council on 31 January 1992, UN Doc.
A/47/277 - S/24111 (17 June 1992), paras. 23 and 25.
81 E.L. Kerley, The Powers of Investigation of the United Nations Security
Council, 55 American Journal of International Law (1961), 892, 898.
82 See e.g.: E.L. Kerley, above n. 81, 897; T.M. Franck and L.D. Cherkis, The
Problem of Fact-finding in International Disputes, 18 Case Western Reserve
Law Review (1996-97), 1483, 1496; Schweisfurth, above n. 79, 1100-1104. But
the argument has also been made that investigation is not a final finding, but
merely a preparatory step, and thus not a normative act in itself, see B.
Conforti and C. Focarelli, The Law and Practice of the United Nations (4th
edn, Martinus Nijhoff 2010), 187; and A. Peters, Article 25, in: Bruno Simma
and others (eds), The Charter of the United Nations: A Commentary (3rd edn,
Oxford University Press 2012), 794.
83 A. Peters, above n. 82, 794.
84 See Kerley, above n. 81, 918.
85 See e.g., COI Yugoslavia (780), Somalia (885) and Rwanda (935).
VII,86 but the Council generally does not refer to a concrete provision as a legal
basis for its request. Unless explicitly provided for in the constitutive resolution,
there is no obligation to cooperate.87 Security Council fact-finding missions can
also be dispatched in a more informal manner, as happened with the missions
to Burundi in 1994 and 1995.88
28. In contrast to the Security Council, the General Assembly has not been
vested with an express power to investigate, but, similar to the Security Council,
it has been accepted that the Assembly has implied investigative powers. Subject
to Article 12 of the UN Charter, the General Assembly can establish fact-
finding bodies pursuant to Articles 10, 11, 14 and 22. Right from the start, the
Assembly has used this mechanism on a great variety of occasions to investigate
and report on concrete situations or incidents, such as the politics of Apartheid
in South Africa 89 the circumstances surrounding the death of Patrice
Lumumba,90 or Dag Hammerskjöld91 and the 1961 assassination of the prime
minister of Burundi.92
29. The Secretary-General’s inquiry competence is also implied and ad hoc. The

86 See e.g., COI Darfur (1564).

87 Cf. also the UN Fact-Finding Declaration, above n. 77, para. 6, which states
that the sending of a UN fact-finding mission to the territory of any State
requires prior consent. Security Council Resolution 1564 established the
Commission of Inquiry for Darfur under Chapter VII, but only called on
parties to cooperate. In Resolution 1636, the Security Council formulated a
clear obligation to cooperate with the Hariri inquiry, which had been
established previously by Resolution 1595 (2005). See more generally, E.
Fromageau, Collaborating with the United Nations: Does Flexibility imply
informality?, 7 International Organizations Law Review (2010), 405.
88 Report of the Security Council Mission to Burundi on 13 and 14 August 1994,
UN Doc. S/1994/1039 (9 September 1994); and Report of the Security
Council Missions to Burundi on 10 and 11 February 1995, UN Doc.
S/1995/163 (28 February 1995).
89 GA Res 616 A (VII) (5 December 1952).
90 GA Res 1601 (VX) (15 April 1961). Also see SC Res 161 (20-21 February
1961), UN Doc S/RES/161.
91 GA Res 1628 (XVI) (26 October 1961). In a subsequent resolution, the
General Assembly requested the Secretary-General to inform him of any new
evidence that would come to his attention, GA Resolution 1759 (XVII), 26
October 1962. Pursuant to this invitation, a private and voluntary body of four
jurists has recently explored whether a need existed to reopen the inquiry. It
delivered its report at the Hague Peace Palace on 9 September 2013, for more
see: hammarskjoldcommission.org.
92 GA Res 1627 (XVI) (23 October 1961).
22

attempt by Secretary-General Perez de Guellar to establish a more general and

permanent fact-finding unit within the secretariat met with enormous
opposition from States. The Office for Research and the Collection of
Information, established in 1987 and also called the “CIA for the UN”, was
short-lived and disbanded in 1992. 93 The Secretary-General’s current
involvement in fact-finding is actually twofold. First, he can establish
commissions of inquiry through delegated authority when requested to do so by
the Security Council or the General Assembly. 94 Secondly, the Secretary-
General may act proprio motu, or at the request of a State pursuant to Articles 98
and 99 of the UN Charter.95 This proprio motu power has been confirmed by the
UN Fact-Finding Declaration. 96 The Security Council may subsequently
endorse the Commission and possibly even decide that States have an
obligation to cooperate, but in the absence of such a decision, there is no
obligation to cooperate. If requested by a State to establish a commission of
inquiry, the Secretary-General may also forward the request to the UN High
Commissioner for Human Rights.97 Commissions of inquiry that are established
at the request of the State, such as the Bhutto inquiry, can be meant to provide
technical support, but also to vest the commission with a certain guarantee of
independence and legitimacy.98 A specific power to conduct an investigation on
alleged uses of chemical, biological and toxic weapons at the request of a State
has been given to the Secretary-General in General Assembly Resolution
42/73C and Security Council Resolution 620 (1988).
30. In contrast, the United Nations Headquarters Board of Inquiry that was

93 S. Chesterman, Article 99, in: Bruno Simma and others (eds), The Charter of
the United Nations: A Commentary (Oxford University Press 2012), 2012.
94 According to the UN Fact-Finding Declaration, above n. 76, para. 15, the
Security Council and the General Assembly should give preference to entrust
the Secretary-General with responsibility over a fact-finding missions rather
than establish their own subsidiary organs.
95 In these cases, the direct legal basis for the creation of the commissions would
presumably be Article 7(2), and the commissions would thus have the status of
subsidiary organs of the secretariat, see Fromageau, above n. 86, 418. See more
generally on the Secretary-General’s powers, S.M. Schwebel, The Origins and
Development of Article 99 of the Charter, 28 British Yearbook of
International Law (1951), 371.
96 See UN Fact-Finding Declaration, above n. 77, para. 13.
97 As happened with the Timor-Leste request of 8 June 2006, UN Doc.
S/PV.5457, 13 June 2006 and welcomed by the Security Council in Resolution
1690 (2006).
98 See Fromageau, above n. 87, 420.
established to investigate nine incidents affecting UN personnel and premises
during the course of the recent conflict in the Gaza Strip and southern Israel
was established by the Secretary-General proprio motu, in his capacity as the Chief
Administrative Officer of the Organization. The primary purpose of developing
a clear record of the facts in that case was to “identify any gaps that might have
existed in the procedures and policies of the Organization and to take any
measures and put in place any arrangements that might be needed, with a view
to preventing a recurrence of such incidents in the future or at least to
mitigating their effects.”99 More generally, the Secretary-General wished to learn
which steps were needed to protect UN property and assets adequately. The
findings of this inquiry remained largely confidential,100 consistent with standard
practice for United Nations Boards of Inquiry.101
31. Parallel to such fact-finding initiatives by the primary UN organs, the
Human Rights Council has engaged in a practice of establishing human rights
commissions of inquiry.102 The constitutive Resolution of the Council does not
specifically vest the Human Rights Council with the power to establish
commissions of inquiry, but it does decide that the Council should address
situation of gross human rights violations, respond promptly to human rights
emergencies and make recommendations on the protection of human rights.
Furthermore, the resolution explicates that the Council shall assume
mechanisms of the Commissions in order to maintain a system of expert
advice. 103 This would seem to confirm the Human Rights Council’s implied
powers, as inherited from the Commission, to establish Commissions of
Inquiry. The principal idea underlying human rights inquiries is that exposure
may contribute to better compliance.104 In this sense, human rights inquiries are
used as advocacy tools with the main agenda being to induce compliance or

99 Letter dated 4 May 2006 from the Secretary-General addressed to the

President of the Security Council, UN Doc. A/63/855-S/2009/250 (15 May
2009).
100 E. Fromageau, above n. 87, 420.
101 Summary by the Secretary-General of the Report of the United Nations
Headquarters Board of Inquiry into certain incidents in the Gaza Strip between
27 December 2008 and 19 January 2009, para. 4.
102 The Commissions established two COI, East Timor and the occupied
Palestinian Territories.
103 GA Res 60/251 (3 April 2006), UN Doc. A/RES/60/251, paras. 3, 5 and 6.
104 Christine Chinkin, UN Human Rights Council Fact-Finding Missions: Lessons
from Gaza, in: M.H. Arsanjani and others (eds), Looking to the Future: Essays
on International Law in Honor of W. Michael Reisman (Martinus Nijhoff
2010), 475-198.
24

alternatively to provoke external action that will halt ongoing human rights
violations.
32. Pursuant to the implied powers-theory, the fact-finding exercises must
remain within the overall mandate and functions of the parent bodies. Broadly
speaking, they must be necessary for the maintenance of international peace and
security, whereas the commissions of inquiry operating under the Human
Rights Council should more concretely find facts that are human rights-related.
The UN Declaration on Fact-Finding states that the primary function of fact-
finding missions is information-gathering with a view to obtaining satisfactory
knowledge of all the relevant facts so that the primary organs can exercise their
functions effectively. 105 Additional considerations that may influence the
decision to dispatch a fact-finding mission are that these missions may signal
the concern of the UN and may help to defuse a dispute or situation. They may
thus contribute to prevention or halt further exacerbation of a conflict or they
may function as early warning mechanisms.106 The question arises whether the
human rights commissions of inquiry fit this scheme entirely. It may in fact also
be that, occasionally, these Geneva-based commissions rather function as a
correction mechanism to New York dynamics and in particular to a paralysed
Security Council. In such a case, they would represent public opinion and have
the de facto aim to express condemnation, to present a compelling conflict
narrative so as to counter the Security Council inaction or to elicit alternative
involvement by the International Criminal Court. This different emphasis in
their role, function and audience may obviously impact the manner in which
they fulfill their mandate, and more specifically it may influence their invocation
of international law. The two parallel UN inquiries on the flotilla incident
present a compelling illustration hereof. The inquiry launched by the Human
Rights Council was given the mandate to investigate violations of international
law,107 whereas the Secretary-General’s panel was encouraged to go beyond the
law and to recommend how similar incidents could be avoided in the future.108
Unsurprisingly, they reached diametrically opposed findings on certain points,109

105 See UN Fact-Finding Declaration, above n. 77, paras. 3-4.

106 Ibid., paras. 5, 12.
107 Report of the international fact-finding mission to investigate violations of
international law including international humanitarian and human rights law,
resulting from the Israeli attacks on the flotilla of ships carrying humanitarian
assistance, UN Doc. A/HRC/15/21, 2010, para. 5-6.
108 Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla
Incident, September 2011, para. 16.
109 Most importantly, the HRC inquiry concluded that the naval blockade was
while being more in agreement on others.110

V.B. Navigating between fact-finding and law-application

33. In theory, of course, fact-finding commissions should not engage with law
at all. As stipulated by the UN Declaration on Fact-Finding, reports of
commission of inquiry should be limited to a presentation of findings of a
factual nature. However, the Declaration also indicates that in determining
which facts are relevant facts, the Commissions should be guided by their
mandate.111 Many contemporary commissions of inquiry are instructed in their
mandate to use international law standards as a frame of reference to determine
which facts are relevant facts. International law may thus serve as a selection
criterion. In particular inquiries tasked to investigate situations rather than
concrete incidents are in clear need of such a selection criterion. Beyond this
use of international law as a selection criterion, the question arises whether the
invocation of international law also serves ulterior purposes and whether
contemporary commissions of inquiry should in fact be regarded as de facto law-
applying authorities rather than fact-finding exercises. 112 These questions are
discussed in this section on the basis of a very diverse practice from which only
certain trends can be distilled.

V.B.i. Naming and self-identification

34. As a preliminary observation, it can be observed that the entities discussed
here, all UN subsidiary organs, operate under different names. These include a
myriad of different designations, such as: commission of inquiry, commission
of experts, panel of experts, (high-level) fact-finding mission, preparatory fact-
finding commission, technical assistance mission, special commission, mapping

illegal, paras. 59-61, whereas the SG inquiry, para. 81.

110 Both inquiries held that the humanitarian situation in Gaza was unsustainable,
HRC inquiry, paras. 37-44 and SG inquiry, para. 79; that the flotilla organizers
had both humanitarian and political objectives, HRC inquiry, paras. 76-80 and
SG inquiry, paras. 89-95; and that the use of force by Israeli forces on the Mavi
Marmara was excessive, HRC inquiry, para. 172 and SG inquiry, para. 134.
111 See UN Fact-Finding Declaration, above n. 76, para. 17.
112 See particularly on the question of how the use of international criminal law
can foster and/or undermine the mandates of commissions of inquiry, L. van
den Herik and C. Harwood, Sharing the law: the appeal of international
criminal law for commissions of inquiry, in: P. Alston and S. Knuckey (eds.),
Human Rights Fact-Finding and International Criminal Proceedings,
(forthcoming).
26

exercise, and independent investigation commissions. Bodies operating under

these titles have been dispatched in a host of different settings, with different
mandates and for different purposes and their label is not necessarily indicative
for the precise character of the organ. Their identity hinges predominantly on
the formulation of the mandate and instructions given therein as well as self-
identification and their own interpretation of the mandate.
35. Occasionally, the mandate or report may include indications on the
perceived character of the operating commission of inquiry as either a
predominantly factual or judicial exercise. For instance, in his letter to the
Security Council on the establishment of the UN Headquarters Board of
Inquiry for the 2008/2009 Gaza strip incidents, the Secretary-General expressly
underlined that the Commission would not act as a judicial body or court of law
and that it would not make legal findings or consider questions of legal
liability.113 Several commissions have made similar observations on their own
identity as not being a law-applying authority. The Commission of Experts for
the former Yugoslavia interpreted its mandate as providing the Secretary-
General with conclusions on the evidence of violations and not to provide an
analysis of the legal issues or to make legal findings in connection with
particular cases.114 It expressly stated that it was the prerogative of International
Tribunal for the Former Yugoslavia to come to definitive legal conclusions in
relation to particular cases and situations. 115 Similarly, the DRC Mapping
Exercise held that “the legal classification of the acts of violence identified
ultimately relies on a judicial process.” 116 In a more refined manner, the Sri
Lanka Panel of Experts explicated that its mandate required that a legal
characterization be given of certain allegations.117 However, it also emphasized
that it did not have the power to draw definitive conclusions as to culpability or
to determine legal liabilities.118

113 Letter dated 4 May 2006 from the Secretary-General addressed to the
President of the Security Council, UN Doc. A/63/855-S/2009/250 (15 May
2009).
114 Letter dated 24 May 1994 from the Secretary-General addressed to the
President of the Security Council, UN Doc. S/1994/674.
115 Ibid., para. 41.
116 Report of the Mapping Exercise documenting the most serious violations of
human rights and international humanitarian law committed within the
territory of the Democratic Republic of the Congo between March 1993 and
June 2003, August 2010, para. 463.
117 Report of the Secretary-General’s Panel of Experts on Accountability in Sri
Lanka, 31 March 2011, para. 178.
118 Ibid., paras. 9 and 53.
36. By far the most blunt repudiation of international law came from the Palmer
Commission that was requested by the Secretary-General to investigate the
Flotilla incident just shortly after the Human Rights Council had decided to
create a commission to examine this incident as well. As indicated above, the
stark difference in mandate, focus, evaluation and contents of the reports of the
two co-existing commissions may well be understood as reflective of well-
known New York-Geneva dynamics, in particular in relation to questions
concerning the Middle East. In this context, the New York Commission
(Palmer Commission) was expressly outspoken on its own identity as not being
a judicial body. 119 As it mainly obtained its information through diplomatic
channels from Israel and Turkey, it held that it could not make definitive
findings of fact or law. Instead, it would only offer its view. As to the overall
relevance of international law, the Panel held that it, “Panel will not add value
for the United Nations by attempting to determine contested facts or by arguing
endlessly about the applicable law. Too much legal analysis threatens to produce
political paralysis. Whether what occurred here was legally defensible is
important but in diplomatic terms it is not dispositive of what has become an
important irritant not only in the relationship between two important nations
but also in the Middle East generally.” 120 This dismissive attitude towards
international law is exceptional, and it was not fully maintained since the Chair
and Vice-Chair appended an account of the applicable legal principles. Hence,
while there is general agreement that commissions of inquiry are not true courts
of law, international law does feature in their mandates and it does play a
distinctive role in their evaluation and characterization of facts.
37. In contrast to a number of commissions emphasizing they do not act as a
court of law, the Sri Lanka Panel of Experts also denied being a fact-finding
body. It held that its principal task was to advice the Secretary-General on
accountability measures and that it did not “reach factual conclusions on
disputed facts.” 121 Yet, in chapter III of its report, the Panel did provide a
factual account of the conflict, which subsequently informed its
recommendation on matters of accountability. Moreover, ever since the early
League of Nations examples, the practice of inquiry has often included elements
of conciliation and advise. Therefore, the Panel’s own appreciation of its
character in this case might not be fully conclusive.

119 Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla
Incident, September 2011, paras. 5, 13, 14.
120 Ibid., para. 15.
121 Report of the Secretary-General’s Panel of Experts on Accountability in Sri
Lanka, 31 March 2011, paras. 7-9.
28

V.B.ii Juridification of the mandates

38. In addition to self-identification, the engagement of commissions of inquiry
with international law is also informed by their mandates. In the formulation of
mandates, a trend can be discerned that stimulates commissions of inquiry to
establish facts through the lenses of international law. The argument can thus
well be made that gradually the mandates of commission of inquiry are
becoming more juridified in two interrelated ways. Firstly, they consistently
refer to legal standards as a yardstick for collection and evaluation of relevant
facts. A second and more recent trend is that commissions are increasingly
expressly mandated to make legal findings and determinations.
39. In this respect, it is notable that in the early years, the Commission of
Experts for the former Yugoslavia and for Rwanda were tasked to gather,
examine and analyse information with a view to providing the Secretary-General
with conclusions on the evidence of violations of international humanitarian
law, and in the case of Rwanda also of possible acts of genocide. The
Commission of Inquiry for Timor-Leste established by the then still existing
Human Rights Commission had a similar task of gathering and compiling
systematically information on possible human rights and international
humanitarian law violations to provide the Secretary-General with conclusions
to enable him to make recommendations on future actions. In more recent
years, the mandates of human rights commissions include more pronounced
instructions to make legal characterizations as they request commissions to
investigate alleged human rights violations and in the case of Darfur even to
determine whether or not genocide had been committed. Moreover, this
instruction has often been coupled with a demand that the commission
identifies, where possible, those individuals responsible. Many commissions
have thus received a mandate with a predominant accountability orientation. On
some occasions, the quest for accountability has resulted in a somewhat
prejudiced and predisposed mandate, such as in the case of the Flotilla inquiry
created by the Human Rights Council. This commission was tasked to
“investigate violations of international law, including international humanitarian
law and human rights law, resulting from the Israeli attacks on the flotilla of
ships carrying humanitarian assistance.” 122 The commission recognized the
incongruity of pre-determining that violations had occurred prior to any
investigation.123 It reinterpreted its mandate as being to investigate “the facts

122 UN Doc. A/HRC/RES/14/1, para. 8.

123 Report of the international fact-finding mission to investigate violations of
international law including international humanitarian and human rights law,
and circumstances surrounding the boarding by Israeli military personnel of a
flotilla of ships bound for Gaza and to determine whether in the process
violations occurred of international law, including international humanitarian
and human rights law.”124
40. The Human Rights Council established a commission of inquiry for North
Korea on the basis of a similar predisposition. In Resolution 22/13, it strongly
condemned the ongoing grave, widespread and systematic human rights
violations in North Korea and subsequently in the same Resolution, it created a
commission to investigate those violations. 125 Clearly, the task of this
commission was not to inquire whether these violations had occurred or not.
Instead, its aim was to fully document those violations, 126 and to ensure
accountability, in particular where the violations amounted to crimes against
humanity. In this case, the mandate instructed the commission to use
international law, and in particular international criminal law language, to legally
characterize given facts and thereby express a certain indignation and to evoke
an external response rather then solely as a lens to select relevant facts.127

V.B.iii. The engagement of commissions of inquiry with international law in practice

41. In relation to the engagement of commissions of inquiry with international
law in practice, two observations can be made. The first regards the choice of
law and the second relates to interpretation and application.
42. Obviously, the commissions of inquiry established by the Human Rights
Council are mandated to use human rights law as a frame of reference.
However, either through an express instruction in their mandates or through
interpretation in practice, these commissions have also resorted to international
humanitarian law and international criminal law. Questions have been posed as

resulting from the Israeli attacks on the flotilla of ships carrying humanitarian
assistance, UN Doc. A/HRC/15/21, 2010, para. 5-6.
124 Ibid., paras. 4-7.
125 UN Doc. A/HRC/RES/22/13, 9 April 2013, paras. 1 and 5.
126 As called for by the Special Rapporteur, UN Doc. A/HRC/22/57, 1 February
2013.
127 See on the migration of international criminal law beyond the court room, D.
Jacobs and C. Harwood, International Criminal Law Outside the Courtroom:
The Impact of Focusing on International Crimes for the Quality of Fact-
Finding by International Commissions of Inquiry, Grotius Centre Working
Paper 2013/007-ICL, available at:
http://law.leiden.edu/organisation/publiclaw/publicinternationallaw/grotius-
centre-workingpapers/working-paper-series.html.
30

to the propriety hereof,128 but the expansion seems by now to have become
settled practice. The broader choice of law may be indicative of the
commissions’ understanding of their function and purposes. The use of
international humanitarian law standards facilitates a more comprehensive and
even-handed account of a conflict that examines both sides of a conflict. In
internal armed conflicts, exclusive reliance on human rights law would solely or
predominantly expose State behavior, since non-state actors do not have any or
limited direct obligations under this area of law. 129 In turn, the use of
international criminal law serves accountability purposes, but perhaps even
more importantly, it evidences the quest to evoke external action. The doctrine
of R2P has articulated a moral and political responsibility for the international
community and more specifically the Security Council to act when international
crimes are being committed and characterizing acts as international crimes also
assists in bringing a situation within the attention of the International Criminal
Court. The use of international humanitarian law and international criminal law
thus serves purposes beyond the function of law as being a mere selection
criterion.
43. In their interpretation and application of law, commissions of inquiry are
generally fairly flexible and progressive. Again, the Palmer commission is
situated at the far end of the spectrum, as it openly used international law in an
unusually selective fashion. It determined that the armed conflict between Israel
and Hamas was of an international nature130 but it refused to acknowledge any
implications that this could have for the overall status of Hamas.131 It stated in

128 See e.g., D. Richmond-Barak, The Human Rights Council and the
Convergence of Humanitarian Law and Human Rights Law, in: W. Banks
(ed.), Shaping a Global Legal Framework for Counterinsurgency: New
Directions in Asyymetric Warfare (2012); C. Harwood, The Competence of
UN Human Rights Council Commissions of Inquiry to Make Findings of
International Crimes, Grotius Centre Working Paper 2013/00X-ICL.
129 On this point, see the progressive interpretation quoted in note 140 below.
130 Yet, in an appendix on the applicable legal principles, the President and Vice-
President suggested that the law of blockade also applied in non-international
armed conflict, para. 23. There is only limited support for this proposition, see
D. Guilfoyle, The Mavi Marmara Incident and Blockade in Armed Conflict,
81 British Yearbook of International Law (2011), 1.
131 The finding that the conflict was of an international nature has been disputed
as it directly implies that Hamas has the status of belligerent power under
international law while it does not meet the criteria for this status, see R.
Buchan, The Palmer Report and the Legality of Israel’s Naval Blockade of
Gaza, 61 International and Comparative Law Quarterly (2012), 1, 264-274,
269-270.
this respect,

“[t]he law does not operate in a political vacuum, and it is implausible to

deny that the nature of the armed violence between Israel and Hamas
goes beyond purely domestic matters. In fact, it has all the trappings of
an international armed conflict. This conclusion goes no further than is
necessary for the Panel to carry out its mandate. What other implications
may or may not flow from it are not before us, even though the Panel is
mindful that under the law of armed conflict a State can hardly rely on
some of its provisions but not pay heed to others.”132

44. A less extreme example where international law has been relied on in a
relatively flexible manner was the Commission of Experts for the former
Yugoslavia when confronted with the same question of how to define the
nature of the armed conflict. In its interim report, it held,

“the character and complexity of the armed conflicts concerned,

combined with the web of agreements on humanitarian issues the parties
have concluded among themselves justify an approach whereby it applies
the law applicable in international armed conflict to the entirety of the
armed conflicts in the territory of the former Yugoslavia.”133

And in its final report it referred to the ICTY for a more definitive
determination on this matter. 134 The DRC Mapping Exercise took a similar
approach. It observed that most of the acts they had identified constituted war
crimes under both regimes governing international and non-international armed
conflict 135 and subsequently held that it was “difficult to classify all of the
various armed conflicts that affected the DRC all over its territory between
1993 and 2003” and that time was needed to determine the precise nature and

132 Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla
Incident (September 2011), para. 73.
133 Interim Report of the Commission of Experts Established Pursuant to
Security Council Resolution 780 (1992), 9 February 1993, UN Doc. S/25274,
para. 45.
134 Final Report, para. 43.
135 Report of the Mapping Exercise documenting the most serious violations of
human rights and international humanitarian law committed within the
territory of the Democratic Republic of the Congo between March 1993 and
June 2003, August 2010, para. 472.
32

applicable legal regime for certain of these conflicts.136 A comparable flexible

approach can be discerned as regards the interrelationship between human
rights law and international humanitarian law. Generally, the commissions
recognize the co-application of the two bodies of law during armed conflict and
they cite the lex specialis rule.137 However, they mostly do not concretize how the
interrelationship plays out in specific instances. The approach of the Sri Lanka
Panel of Experts may be paradigmatic in this respect as it focuses on violations
of international humanitarian law on the premise that often such violations will
also constitute violations of human rights law.138 Boutruche has criticized this
approach as being legally inadequate and insufficiently sensitive to the
intricacies of the interplay between the two fields of law.139 In addition to this
flexible approach in the application of law to given facts, commissions have also
been relatively progressive in their general interpretations of the law. Such
progressive interpretations include the argument that “it is now increasingly
accepted that non-state groups exercising de facto control over a part of a State’s
territory must respect fundamental human rights of persons in that territory.”140
Specifically in relation to crimes against humanity, it is notable that
commissions generally refer to the definition of the Rome Statute, but they omit
an express reference to the policy requirement as formulated in Article 7(2)(a).
This omission may be an enabling strategy that permits the characterization of
acts as crimes against humanity even when they are committed by rebel groups
which do not fulfill all organizational requirements.141
45. It thus seems that commissions exploit the caveat they make that they are
not true courts of law. They invoke and use international law extensively, while
occasionally displaying a rather flexible and progressive attitude in their
selection and understanding of the law which is informed by their function and

136 Ibid., para. 474

137 Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary-General, 25 January 2005, para. 143.
138 Report of the Secretary-General’s Panel of Experts on Accountability in Sri
Lanka (31 March 2011), para. 185.
139 T. Boutruche, Selecting and Applying Legal Lenses in Monitoring, Reporting
and Fact-Finding Missions, HPCR Working Paper, October 2013.
140 See e.g., Report of the Secretary-General’s Panel of Experts on Accountability
in Sri Lanka (31 March 2011), para. 188.
141 See for more on the organizational requirements, C. Kress, On the Outer
Limits of Crimes against Humanity: The Concept of Organization within the
Policy Requirement. Some Reflections on the March 2010 ICC Kenya
Decision, 23 Leiden Journal of International Law (2010), 855-873.
purposes.142 However, it is impossible to generalize on this matter since each
commission operates differently. Some reports do reflect an appreciation that,
in particular in the most politically sensitive dossiers, there is a set need to
interpret and apply the law quite meticulously and to develop legal reasoning at
some length. 143 Such rigor adds to the authority of the report and is also
required by the general inclination of the states concerned not to cooperate and
subsequently dismiss the report. Rigorous legal reasoning may help to forestall
dismissal on legal grounds. Interestingly, the tendency to dismiss has recently
been joined by a new trend. In an attempt to counter or pre-empt international
inquiries, states often launched national inquiries. 144 Lately, some individual
states have also started to solicit private “international” inquiries composed of
individuals who have either previously sat on official commissions or who have
held prominent posts at one of the International Criminal Courts or
Tribunals.145 With such initiatives, states endeavor to ease international pressure

142 Cf. also the chapter written with C. Harwood where we argue that slight
deviations in the interpretation and application of the law can be justified
through the concept of legitimate difference, L. van den Herik and C.
Harwood, above n. 112.
143 See e.g. The Report of the United Nations Fact-Finding Mission on the Gaza
Conflict (also known as the Goldstone Report), UN Doc. A/HRC/12/48, 25
September 2009.
144 For instance, Turkey and Israel both launched an inquiry into the flotilla
incident, respectively Report on the Israeli Attack on the Humanitarian Aid Convoy to
Gaza on 31 May 2010, Turkish National Commission of Inquiry, Ankara,
February 2011; and The Public Commission to Examine the Maritime Incident
of the 31st of March 2010 (also known as the Turkel Commission), January
2011 and second report on Israel’s Mechanisms fro Examining and
Investigating Complaints and Claims of Violations of the Laws of Armed
Conflict According to International Law, February 2013.
145 E.g. former Special Court for Sierra Leone prosecutor David Crane was hired
with a colleague by Guinea’s former President Camara for a confidential
investigation with a view to countering the official report of a commission of
inquiry established by the UN Secretary-General regarding incidents occurring
during a demonstration on 28 September 2009, UN Doc. S/2009/693, 18
December 2009. More recently, the Sri Lankan President appointed an
International Advisory Council also composed of David Crane, as well as
Geoffrey Nice and Desmond Da Silva to investigate violations of international
humanitarian law and human rights law during the armed conflict. The
mandate included the investigation of very specific and concrete acts by the
LTTE, Sri Lanka Gazette Notification 1823/42, 15 November 2013. However,
in March 2014, the Human Rights Council found that the Sri Lankan
government had not conducted independent and credible investigations and
34

or present a counternarrative, 146 and they thus also generally use the
international law-paradigm.

VI. Appraisal

46. It has been observed that human rights fact-finding is fundamentally

different from other types of fact-finding exercise as it is inherently biased to
contribute to the normative agenda that underlies human rights. Or in the
words of Jean-Pierre Cot, human rights do not leave much room for
compromise.147 Whereas the traditional commissions of inquiry were principally
meant to pacify and defuse a conflict, contemporary human rights commissions
rather aim to stir, to evoke action, to opiniate and to condemn. Their inquiry is
to a certain extent predisposed. The mere fact that a commission is created by
the Human Rights Council signals a perception that there are credible
allegations that human rights have been violated. In addition to gathering
information and establishing facts, a main component of the contemporary
mandates of these commissions is to legally characterize the facts. However,
even though they extensively use the law and apply it to established facts, the
commissions do not act as de facto law applying authorities in the sense of
creating binding legal obligations. They expressly indicate that their methods
and findings are not those of a court of law and cannot create legal liabilities or
have other legal effects. International law is rather used as the predominant
language of communication and construction of facts in a quest to make the
facts more objective and to create political effects. The main difference between
traditional and contemporary commissions of inquiry does therefore not
correspond to the fact/law distinction in the sense that traditional commissions
were pure fact-finders and contemporary commissions are law-appliers. The
fact/law distinction is simply not that easy to make. Moreover, as already
pointed out by Politis a century ago also non-binding and non-legal
determinations can have legal implications in terms of attribution and
responsibility. 148 This was neatly illustrated by the recent Chemical Weapons

called upon the Office of the High Commissioner to do so, UN Doc.

A/HRC/RES/25/1, 9 April 2014, para. 10(b). In June three experts were
appointed to advise the OHCHR Investigation on Sri Lanka.
146 Some of these investigations have received harsh critiques, see e.g., “Guinea’s
junta hires ex-war crimes prosecutors – and gets a favorable report”, Foreign
Policy Blog, 24 February 2010.
147 Cot, above n. 17, 263.
148 Politis, above n. 9.
Inquiry, which was mandated to determine whether chemical weapons had been
used but not to elaborate on who was responsible.149 The factual information
on the artillery used to launch the chemical weapons was, however, highly
suggestive that the government forces were behind the attack. 150 Factual
findings may thus have as many or even more legal implications as legal
characterizations.
47. The main difference between traditional and contemporary commissions is
thus not their resort to international law, but rather the underlying purposes of
their mission. In contrast to the Chemical Weapons Inquiry that was established
by the Secretary-General and the early Dogger Bank inquiry which tried to
downplay questions of blame and responsibility, most contemporary human
rights commissions do have an express mandate to blame and identify those
responsible. Notwithstanding the general practice to keep lists with names
confidential, these mandate are illustrative for the current vision and
expectations of contemporary human rights commissions of inquiry. Hence,
even if identical in name, contemporary human rights commissions of inquiry
are fundamentally different from their ancestors. Where traditional
commissions of inquiry aimed to conciliate and pacify, contemporary human
rights commissions rather condemn and provoke.

149 United Nations Mission to Investigate Allegations of the Use of Chemical

Weapons in the Syrian Arab Republic, Report on the Alleged Use of Chemical
Weapons in the Ghouta Area of Damascus on 21 August 2013, 13 September
2013.
150 Also see the report of Human Rights Watch published previously, Attacks on
Ghouta: Analysis of Alleged Use of Chemical Weapons in Syria, 10 September
2013.