Commission Of Inquiry Research Articles

The Principle of Complementarity and the Challenge of Ensuring Accountability for Crimes Against Humanity in Eritrea

With the release of the second and most important report of the UN Commission of Inquiry on Human Rights in Eritrea (COI) in June 2016, high-ranking Eritrean government officials and key state institutions, such as the Office of the State President, are now formally accused of committing a broad category of crimes against humanity, such as: enslavement, imprisonment, enforced disappearance, torture, persecution, rape, murder and other inhumane acts. In keeping with the objectives of the present consultation, this paper provides some reflections on the prospects and challenges of accountability for gross human rights violations in Eritrea in light of the relevance and applicability of the principle of complementarity.

The Crown: Is It Still ‘White’ and ‘English-Speaking’?

ABSTRACT‘There is a need for a mindset shift away from the pervasive assumption that the Crown is Pākehā, English-speaking, and distinct from Māori’, wrote the permanent commission of inquiry investigating breaches of New Zealand’s founding document, the Treaty of Waitangi. ‘Increasingly, in the twenty-first century, the Crown is also Māori.’ This paper argues that ‘the Crown in right of New Zealand’ is in need of redefining. In the 19th and parts of the 20th century Māori leaders and institutions were often understood as separate from the Crown. But that understanding is shifting, and this paper argues the shift is leading to a new understanding of the Crown in right of New Zealand.

Sanctions Hurt but Are Not the Main Impediment to Humanitarian Operations in North Korea

Sanctions Hurt but Are Not the Main Impediment to Humanitarian Operations in North Korea Roberta Cohen (bio) For more than two decades, humanitarian agencies have tried to address the chronic hunger and malnutrition of more than 40% of North Korea's 25 million people. Since the great famine of the 1990s, when humanitarian organizations were first invited into the Democratic People's Republic of Korea (DPRK), they have come up against a series of obstacles put in their way by the government, undermining the effectiveness of aid. Although the sanctions imposed in 2006 and strengthened in 2016 and 2017 unquestionably have added to the difficulty of delivering humanitarian aid, the main impediment remains the government of North Korea itself. This essay will examine how the DPRK, while allowing humanitarian aid agencies access to its territory, has often restricted their operations and effectively prevented them from reaching many of the most in need, as well as how international sanctions have added to those difficulties. As a result, without a change in North Korea's policies and practices, the lifting of sanctions would not alter the fundamental problems faced by humanitarian actors in the country. The Challenge of Bringing Aid to North Korea In 2014 the report of the UN Commission of Inquiry on Human Rights in the DPRK concluded that "20 years after humanitarian agencies began their work in the DPRK, humanitarian workers still face unacceptable constraints impeding their access to populations in dire need." The report found that the DPRK has "imposed movement and contact restrictions on humanitarian actors that unduly impede their access"; "deliberately failed to provide aid organizations with access to reliable data, which, if provided, would have greatly enhanced the effectiveness of the humanitarian response and saved many lives"; and continually obstructed effective monitoring of [End Page 35] humanitarian assistance,1 presumably to hide the diversion of some of the aid to the military, elite, or other favored groups as well as to markets. In response, aid agencies have devised special measures to try to ensure that food reaches those for whom it is intended, including by weighing children's arms, omitting rice from donations because corn gruel and other mixed foods are not favored by the military and elite, and supplying medicines "that can only be used for their intended purpose."2 At times they have developed successful random monitoring systems.3 Despite notable progress, in 2017 UN secretary-general António Guterres continued to highlight the "significant constraints" imposed by North Korea on aid agencies' access to the beneficiaries.4 In 2016, then UN secretary-general Ban Ki-moon called on North Korea to grant UN agencies "unconditional access" to reliable and accurate data to ensure that aid programs "can effectively target and reach the most vulnerable."5 Yet when the World Food Programme's executive director visited North Korea in 2018, he noted that "access has still been very limited."6 The UN resident coordinator in Pyongyang aptly put it: "National authorities are reluctant to share data beyond the bare minimum and agencies are normally only allowed access to limited information that is strictly related to their operations."7 In this tightly controlled political climate, international humanitarian staff often have to make compromises. Some point out privately that it is unrealistic to try to uphold humanitarian standards in an environment as difficult as North Korea's. They try hard to come up with ways to make their aid sustainable for the North Korean people, but their plans are not always accepted. They may propose extensive medical treatment for some diseases only to have officials curtail the aid and increase the number of people being treated. Where the aid ends up is also not always clear. Supplies brought to one hospital may end up being sent elsewhere without explanation. [End Page 36] According to the UN Commission of Inquiry report, humanitarian staff expressed "strong doubts that the people and children presented to them were those most in need."8 Gaining access is an ongoing issue. In 2016, during Typhoon Lionrock, for example, UN agencies were told they could visit only three of the flooded areas.9 And they were not offered entry—nor did they...

From Canada to Brazil: a Model of Society's Participation in Communication Policy Debate?

This study observes and analyses how Canada and Brazil are experiencing similar situations with respect to communications issues. Understanding that public hearings are the ideal locus for debating specific public policies, the Royal Commissions of Inquiry targeted at the cultural and media industries sectors were chosen as corpus for analysis. The intention here is to do more than merely describe those commissions’ activities; instead, it is to explore their unfolding, attempting to identify the interplay of the relations and interests involved. This study adopts the theoretical perspectives of Political Economy of Communications and of Cultural and Media Industries. The article proposal assumes that the Canadian model of public hearings might be applied to Brazil. Its conclusions indicate a crisis in which society in general has no interest in joining debates on media-related issues, reflecting the State’s failure to defend the public interest and a strong private lobby to influence those debates results.

Modest beginnings, high hopes: The Western Cape Police Ombudsman

In 2013 the Western Cape legislature passed the Western Cape Community Safety Act (WCCSA) to improve monitoring of and oversight over the police. One creation of the WCCSA is the Western Cape Police Ombudsman, which became operational in 2015. This article reviews its history and context, as well as results from its first year. The Police Ombudsman, the only one in the country, must be seen as one of the results of efforts by the opposition-held province to carve out more powers in the narrowly defined constitutional space, and in so doing to exercise more effective oversight and monitoring of police performance, and improve police–community relations. The Ombudsman must also be seen against the backdrop of poor police–community relations in Cape Town and the subsequent establishment of a provincial commission of inquiry into the problem, a move that was opposed by the national government, contesting its constitutionality. Results from the Ombudsman’s first 18 months in operation are modest, but there are promising signs. Nonetheless, the office is small and it did not do itself any favours by not complying with its legally mandated reporting requirements.

Modest beginnings, high hopes: The Western Cape Police Ombudsman

In 2013 the Western Cape legislature passed the Western Cape Community Safety Act (WCCSA) to improve monitoring of and oversight over the police. One creation of the WCCSA is the Western Cape Police Ombudsman, which became operational in 2015. This article reviews its history and context, as well as results from its first year. The Police Ombudsman, the only one in the country, must be seen as one of the results of efforts by the opposition-held province to carve out more powers in the narrowly defined constitutional space, and in so doing to exercise more effective oversight and monitoring of police performance, and improve police–community relations. The Ombudsman must also be seen against the backdrop of poor police–community relations in Cape Town and the subsequent establishment of a provincial commission of inquiry into the problem, a move that was opposed by the national government, contesting its constitutionality. Results from the Ombudsman’s first 18 months in operation are modest, but there are promising signs. Nonetheless, the office is small and it did not do itself any favours by not complying with its legally mandated reporting requirements.

Disability-Rights Based International Cooperation: With Some References to North Korea

본 논문은 2006년 유엔 장애인권리협약의 맥락에서 사회복지 관점으로부터 인권 및 장애인 권리의 현주소를 탐구하려고 시도하였다. 전반적인 논의는 일반적인 인권과 특히 장애인권의 과제들에 대한 과감한 해결이 어려운 북한의 상황에 초점이 맞춰져 있다. 유엔 장애인 권리협약은 모든 비준 당사국이 협약을 이행하기 위해 법제도의 개혁과 조화, 정책 및 프로그램 개발을 시작하도록 촉구한다. 남북한도 모두 예외가 아니다. 북한 인권에 관해서는 유엔 조사위원회에 의하지 않더라도 그 비참한 상황은 잘 드러나 있다. 그러나 이 논문에서는 한국의 인권이 북한보다 우월하다고 보는 것은 아니다. 이 논문은 그 문제에 대해 남북한과 그밖에 다른 나라들에게 공통된 추가 조치를 위한 영역들을 제시하였다. 장애인 권리에 관한 일반적인 논의와 별개로 본 논문의 특별한 기여는 북한에 관한 최신 정보와 자료를 도출하려고 노력한 사실에 있다. 그것은 유엔과 북한 자체로부터 나온 여러 출처에 의존하였다. 북한 장애인 당국은 장애인의 인권 개선을 위해 외부로부터의 도움을 청하려는 열의로 매우 노력하고 있음을 알 수 있다. 또한 그것은 재정적 지원 및 물질적 지원에 대한 국제적 협력의 많은 필요성을 보여준다. 본 논문은 유엔장애권리협약 제32조가 규정하는 국제협력의 기치 아래, 남북한의 장애인단체간 협력에 긍정적 신호로 평화와 안정을 위한 단계적 조치를 취하는 남북한 간의 최근 정치발전에 주목하고 있다. 보다 비판적으로, 본 논문에서는 균형 잡힌 법제도 개혁, 정책 개발을 보장하며 국제 협력 분야를 선명하게 하기 위해 전반적인 데이터 기반을 개선해야 할 필요성을 지적하였다.This paper attempts to explore the place of human and disability rights from the perspective of Social Welfare within the context of the UN Disability Rights Convention of 2006. The overall discussion is focused especially upon the situations of human and disability rights in the Democratic People s Republic of Korea (North Korea) as it is being challenged to drastically address the issues of human rights in general, and disability rights in particular. The UN Disability Rights Convention challenges every ratified State party to commence legal reforms, legal harmonization, and policy and program developments to implement the Convention. Both North and South Korea are not exceptions to this. Even without drawing upon the UN s the Commission of Inquiry on Human Rights in the Democratic People s Republic of Korea, the dire situation of human rights in North Korea is well documented. However, this paper does not assume South Korea s human rights are any way superior to that of North Korea. This paper spells out areas for further action common to two Koreas and to any other nations for that matter. Apart from the general discussion on disability rights, the distinctive contribution of this paper lies in the fact that it has endeavored to draw upon any latest information and data on North Korea. It relied on various sources from UN and also from North Korea itself. One can note that North Korean disability authorities are making strenuous efforts to improve human rights of persons with disabilities in their desires to seek assistance from outside. It also shows an enormous need for international cooperation in seeking financial and material supports. This paper notes the latest political development between North and South Korea in taking “phased” steps for peace and stability as a positive sign for North and South Koreans DPOs collaboration under the banner of International Cooperation of the article 32 of the UN Disability Rights Convention. More critically, this paper points to the further need to improve the overall data bases to ensure balanced legal reforms, policy developments and sharpen the areas of international collaboration.

Counter-terror and soft power: NGO claims to military and legal expertise and Israeli responses

ABSTRACTFor many years, the network of non-governmental organizations (NGOs) claiming a human rights agenda has consistently sought to delegitimise Israel’s counterterrorism strategy. This phenomenon was prominent during the 2008–2009 and 2014 Gaza wars, when these groups issued hundreds of statements condemning Israel, and in campaigns calling for UN commissions of inquiry (e.g. the Goldstone and Schabas/Davis investigations) into Israeli ‘war crimes’. NGO allegations were also the foundations of lawfare, including efforts to prosecute Israeli officials in the International Criminal Court and other venues, and for BDS campaigns against Israeli and Jewish targets. In this soft-power strategy, the perception of NGO officials as ‘security experts’ provides a major source of legitimacy, lending credence to their reports, despite the lack of credible fact-finding methodologies. Similarly, NGO legal analyses, based on problematic and aspirational interpretations, are accepted and echoed widely, without independent verification. In response, the IDF and Ministry of Defence first ignored and then sought to engage the NGOs in order to persuade them to accept Israeli perceptions and counterterror policies. When these responses failed, the emphasis shifted to countering NGO credibility in legal and diplomatic venues, which has also had limited impact to date.

Commissions of inquiry as vectors for change in public sector ethics: A few thoughts for further research

AbstractThis article addresses the question whether public commissions of inquiry have the potential for driving constructive change in ethical behaviour within the public sector. It suggests two hypotheses. One is that the climate of discussion that often accompanies commissions of inquiry, and the systemic approaches that commissions are encouraged to take in their recommendations, negatively affect the receptiveness of public sector members to change in matters of ethics. The other hypothesis is that highly politicized commissions create a dynamic that may press governments to take courses of action that may not be conducive to constructive change in public sector ethics.

Where Does Truth Lie? The Challenges and Imperatives of Fact-Finding in Trial, Appellate, Civil and Criminal Courts and International Commissions of Inquiry

The author takes three instances to illustrate the difficult but essential task of fact-finding in formal decision-making. The first concerns the residual fact-finding responsibility of appellate courts when scrutinising fact-finding in primary civil proceedings, with an emphasis on incontrovertible facts. The second involves criminal appeals where the prosecution has presented a compelling case of circumstantial evidence, but a retrial may be required because of an unbalanced judicial direction. The third involves an international commission of inquiry on human rights where the state concerned refuses to cooperate yet demonstrates faulty testimony (later acknowledged) by a witness. Human decision-making is always subject to error, whether on the facts or the law. However, that risk cannot impede the imperatives of decision-making and of explaining relevant fact-finding in the most convincing way possible, so as to discharge the ultimate responsibility of reaching a reasoned decision.

Commissions of Inquiry: Problems and Prospects, edited by Christian Henderson [Hart Publishing, Oxford and Portland, OR, 2017, 392pp, ISBN 9781782258766, £81.00 (h/bk)

Commissions of Inquiry: Problems and Prospects, edited by Christian Henderson [Hart Publishing, Oxford and Portland, OR, 2017, 392pp, ISBN 9781782258766, £81.00 (h/bk)

UK Criminal Finances Act 2017: The Interplay between the New Corporate Offence for the Failure to Prevent the Criminal Facilitation of Tax Evasion and Legal Professional Privilege

According to the European Commission, Member States lose between 2% to 2.5% of their combined GDP annually to tax crimes. Tax avoidance and tax evasion have also dominated news recently especially following the Panama Papers/Mossack Fonseca Leak and the Paradise Papers. Whereas these leaks, particularly the Paradise Papers, encompassed arrangements that may have involved tax evasion, a lot of the arrangements involved legal tax avoidance, albeit highly aggressive. In response many governments are using the Automatic Exchange of Information and the Common Reporting Standard as a lever to encourage voluntary disclosure of non-reported offshore income among other tools to fight tax evasion. In the United Kingdom, the Criminal Finance Act 2017 received Royal Assent on 27 April 2017 and came into effect on 30 September 30, 2017. Among other objectives, it created a new corporate offence of failure to prevent the facilitation of tax evasion by an associated person, whether in the United Kingdom or in a foreign jurisdiction. It paves way for holding corporate entities liable where those “associated” with it have engaged in the criminal facilitation of tax evasion. The new corporate offence of failure to prevent the criminal facilitation of tax evasion was birthed out of the difficulties faced in the UK in holding corporate entities criminally responsible because of the “identification doctrine” that required prosecutors to prove that a “directing mind” within the organization. Therefore, this paper first explores the concept of the “identification doctrine”, criticisms levelled against it and why it was considered an impediment to making corporate entities liable for economic crimes that resulted the move towards a “strict liability” offence. It then focuses on the scope of the new corporate offence and examines the persons covered, the two elements i.e. the failure to prevent the facilitation of a United Kingdom tax evasion offence and the failure to prevent the facilitation of foreign tax evasion offences, the stages involved and the challenges posed by the requirement for dual criminality and the extra-territorial application of the later offence. Lawyers can and often play a role in the facilitation of tax evasion. In light of the findings of the European Parliament’s Committee of Inquiry into Money Laundering, Tax Avoidance and Tax Evasion (PANA), the Bari Declaration of May 13, 2017 and work undertaken by the OECD (for example the Ten Global Principles launched at the OECD´s Fifth Forum on Tax and Crime, the Common Reporting Standard (CRS) and the Mandatory Disclosure Rules for Addressing CRS Avoidance Agreements and Offshore Structures) this paper also looks at the spillover effects of the new UK corporate offence on tax advisers and lawyers in their capacity as “associated persons” vis-a-vis the defense of legal professional privilege. It concludes that the Criminal Finances Act 2017 is consistent with the doctrine of legal professional privilege. It is also consistent with the proposals from the OECD´s Fifth Forum on Tax and Crime that requires professional enablers to play their part in tackling tax crime by ensuring that they have taken reasonable steps to prevent their associated persons from criminally facilitating tax evasion, domestically and internationally. As recommended, it criminalizes the act of aiding, abetting, facilitating or enabling the commission of a tax offence by others and also makes legal persons and legal arrangements liable for prosecution for committing or facilitating the commission of a tax crime. The Criminal Finances Act 2017 may also cover professional enablers and service providers who are actively marketing schemes designed to circumvent the CRS reporting requirements if it leads to the failure to prevent the criminal facilitation of tax evasion. It is therefore aligned with the OECD Mandatory Disclosure Rules for Addressing CRS Avoidance Agreements and Offshore Structures.

The imagined subject of schooling in the logic of policy

ABSTRACT National education policies reference a representation of an imagined subject of schooling derived from a broader social imaginary that underpins the projects of the state, in a process which I refer to here as ‘the logic of policy’. I offer an account of how this representation is derived and propose three conceptual elaborations of this view. I then consider ways in which shifts occur in this social imaginary, especially at moments of substantial social, economic and political change, and ways in which these shifts are communicated. This imagined subject is referenced in processes involving both state and non-state entities, mediated by historically specific governance instruments. The main part of this paper offers an illustrative historical example of the working of this logic in the context of the Cape Colony and apartheid South Africa, where the instrument of governance that was central to this process was the commission of enquiry. The concluding section briefly considers whether the logic of policy works in much the same way in a contemporary policy environment, where new policy technologies have largely displaced the commission of enquiry

The making of the Congo question: truth-telling, denial and ‘colonial science’ in King Leopold’s commission of inquiry on the rubber atrocities in the Congo Free State (1904–1905)

During the first years of the twentieth century Belgian King Leopold II and his bloody colonial regime in Congo became the subject of what is sometimes considered the first modern international hum...

Planning profitable futures: the introduction of statistical planning techniques in American banks

Much of the blame for the 2007–2008 economic and financial crisis was placed on the faith of bank managers, executives, and federal regulators in quantitative analysis, models, and equations. However, this article disputes the Financial Crisis Inquiry Commission’s claim that quantitative analysis entered into banking with the hiring of quantitative analysts or ‘quants’ in the 1970s. Instead, the article traces the history of quantitative analysis in banking to the widespread introduction of planning techniques in the 1960s. The article demonstrates that in the 1960s nearly a quarter of all surveyed commercial banks had adopted planning techniques. These banks were active in their quest for new ways to lend and invest and for management strategies strengthened by statistical models and techniques that promised to enable bank executives and managers to calculatedly manage an unknowable future. Drawing on archival documents on Citibank’s planning departments, the article highlights how planning techniques in the late 1960s influenced banks to enter more forcefully into the consumer credit market and guided the adoption of mostly unprofitable and high-risk bank credit cards. In the end, the article interrogates the history of the introduction of statistically based planning methods in bank management practices and how these techniques helped form a pathway to the validation of ‘increased risk-taking’ in American banking in the mid- to late twentieth century.

A potential Human Rights Act in Queensland and inclusion of the right to health

Objective:To identify the level of public support for a Human Rights Act for Queensland (HRAQ) and for inclusion of the right to health by participants in a public inquiry process. Methods:We reviewed the 492 written submissions to the Legal Affairs and Community Safety Committee's Inquiry into a potential HRAQ and the transcripts documenting the public hearings held by the Committee in 2016. Results:A total of 465 written submissions were analysed; 419 (90%) were for a HRAQ. More than 80% of the ‘for’ submissions advocated the right to health's inclusion. At the seven public hearings, 72 persons made verbal submissions and most supported a HRAQ. Five major themes were identified in our synthesis of the public hearing transcripts. Three related specifically to health and human rights: 1) the need to consider the holistic health and human rights of Indigenous Queenslanders and Indigenous Queensland communities; 2) instilling a human rights culture in Queensland; and 3) access to health care and the underlying determinants of health. The other two themes related to the conduct of the Inquiry: 4) the importance of community participation in developing a HRAQ; and 5) concerns about the public consultation processes. Conclusion:This study found strong support in the majority of submissions for the Queensland Parliament to draft and enact a HRAQ, and for the inclusion of the right to health in such legislation. Implications for public health:The Queensland Parliament's enactment of a HRAQ that expressly included the right to health would increase the accountability and transparency of government health (and related) decision making and resource allocation, and would better identify and address health inequities across the state. This Act is imperative for improving the health and wellbeing of all Queenslanders, particularly rural and remote and Aboriginal and Torres Strait Islander Queenslanders.

BADERNEIROS, ARRUACEIROS, GUERRILHEIROS: UM ACONTECIMENTO NA TRANSIÇÃO DEMOCRÁTICA

RESUMO Recentemente, o acervo da Secretaria de Segurança Pública do Distrito Federal relativo à ditadura militar foi aberto ao público. Um dossiê sobre o “badernaço” (tumulto acontecido depois da manifestação contra o Plano Cruzado II) é parte desse acervo. Trata-se da documentação da comissão de sindicância instaurada para apurar denúncias de que o “badernaço” ocorrera com conivência ou cooperação de setores do Governo, como a Secretaria de Segurança Pública ou a chamada “comunidade de informações”. Este artigo faz uma análise desse dossiê, a partir dos temas da “transição democrática” e das sobrevivências da ditadura militar (aqui entendidas, conceitualmente, nos termos do fantasmagórico, espectral).

Rule of Law, Violence and Exception: Deciphering the Indian State in the Thangjam Manorama Inquiry Report

In this article, I draw on Nasser Hussain’s conceptualizations on rule of law, violence, and exception to read the Inquiry Commission Report on the torture and murder of Thangjam Manorama in 2004. While clearly the Commission strongly condemns the torture and murder of Manorama, it continues to represent one of the most serious tensions that exist in the context of the rule of law and emergency that Hussain mentions in British colonial times. The Commission report attempts to resolve the tension between political exigencies and rule of law by restricting itself to being a procedural effort to deal with what is essentially a political and national security regime that ends up being curiously reminiscent of colonial reports. In other words, rather than recognizing the role of extraordinary laws such as AFSPA (Armed Forces Special Powers Act) in creating such situations, the report primarily recognizes procedural violations as responsible for the violence against Manorama. The report then ends up being a paternalistic symbolic act that fails to acknowledge the political authority of the state in conflict areas and the regime of impunity created by the very existence of the laws such as the AFSPA. However, I note that in the postcolonial context, the contestations of hyperlegality also reflect a tension between a rejection of emergency provisions for the Northeast and an inability to embrace excessive violence that the Constitution otherwise prohibits. I argue that the postcolonial state is unable to contain this tension successfully between political exigencies and the rule of law in the Thangjam Manorama case due to the continued demands for accountability by those resisting this law and protesting her and other deaths. Regardless of the intent of the author, the report following this particular death appears to have generated a fissure in the postcolonial legal narrative that reveals the excessive violence embedded in the AFSPA regime that cannot be easily embraced and yet cannot be denied and becoming increasingly difficult to contain and legitimize.

American Writers and the Approach of World War II, 1935–1941: A Literary HistoryShell Shock, Memory, and the Novel in the Wake of World War I

American Writers and the Approach of World War II, 1935–1941: A Literary HistoryShell Shock, Memory, and the Novel in the Wake of World War I

Institutional Violence against People with Disability: Recent Legal and Political Developments

International and Australian domestic evidence suggest that the prevalence of violence against people with disability is substantially higher than for the rest of the community. Much of the violence experienced by people with disability in Australia occurs within the purview of a variety of institutions, including group homes, large residential institutions, Australian Disability Enterprises (that is, disability employment facilities), schools, psychiatric facilities, hospitals and correctional facilities. This comment discusses recent domestic and international legal and political attempts to grapple with the issue of institutional violence against people with disability, focusing in particular on a series of Senate Committee inquiries into abuse and violence, regulation related to the National Disability Insurance Scheme, the coming into force of the Convention on the Rights of Persons with Disabilities, Australia's anticipated ratification of the Optional Protocol to the Convention Against Torture and recent calls by Disability People's Organisations and academics for a Royal Commission into violence against people with disability.