Fact-Finding or Paving the Road to Criminal Justice?: Some Reflections on United Nations Commissions of Inquiry

Abstract

This article analyses the work of a number of fact-finding commissions established by the United Nations (UN) with a view to assessing their impact on subsequent criminal prosecutions for war crimes and other international crimes and to trigger some reflections on the merits and pitfalls of these bodies. In the first place, the author takes into consideration UN commissions of inquiry leading to the establishment of international criminal tribunals. Fact-finding bodies that have prompted a UN Security Council referral to the International Criminal Court are then examined. The major case in point is the International Commission of Inquiry on Darfur that interpreted its mandate in the broadest possible manner and acted as a quasi pre-judicial body. The author then observes that in recent years there has been a gradual shift and many UN commissions of inquiry — even those that were mainly tasked with the investigation of alleged violations of international humanitarian law — have been established by the Human Rights Council and not by the Security Council. Until now though, there has been a dearth of encouraging results corroborating the validity of such a change of approach. In fact, some of the bodies established by the Human Rights Council have attracted criticism, either because of a one-sided or unbalanced mandate or because they could not gain access to the territory where violations of international humanitarian law were being committed. The author concludes that, for the purposes of gathering evidence for future criminal prosecutions, it is advisable not to assign mandates combining investigations into violations of international humanitarian law together with human rights violations. The author also suggests a division of labour among the various UN bodies undertaking fact-finding activities, the drawing of a ready-to-use set of guidelines and the establishment of a roster of independent experts. These are all measures that could foster the prompt and effective deployment of fact-finding missions.