UN Commissions of Inquiry and Campaigns to Support Them
Jack Rendler, North Korea Country Specialist, Amnesty International
To mark Human Rights Day in 2011, the Academic Platform Switzerland and the Geneva Academy of International Humanitarian Law and Human Rights, presented a conference entitled, “The Human Rights Council: Commissions of Inquiry.” [The full summary of that conference is available at: www.adh-geneve.ch/docs/.../HR-council-inquiry-conference-brief.pd...]
Some exerpts from that session:
National commissions of inquiry are a useful tool and should be considered early on when allegations of human rights abuse are made. If a State fails effectively to do this, an international commission of inquiry should be established. To be effective, national commissions of inquiry must be transparent, independent and well resourced. However, the danger that such commissions may be misused should not be underestimated.
International Commissions of Inquiry can be used to investigate human rights situations. There is no single format for commissions of inquiry to follow. Historically, commissions of inquiry have had a broad range of mandates and have been established to investigate both a single incident as well as ongoing situations. The common objectives of any commission of inquiry are numerous and include:
•to establish impartially whether violations of human rights law and/or humanitarian law have occurred;
•to investigate whether or not violations are systematic and widespread;
•to report on a State’s ability to deal with the violations;
•to highlight the root causes of the situation;
•to suggest ways of moving forward;
•to produce a historical record of events that have occurred.
Every commission of inquiry’s primary objective should be to establish accountability for violations that have taken place, ensuring that those responsible for violations are brought to justice. An important task of any commission of inquiry is to analyze facts on the ground with regard to applicable law. Thus, it is crucial that a commission can independently and freely conduct investigations on the ground to establish the facts for itself.
A commission of inquiry’s report should describe facts, qualify acts, clearly state where violations have occurred, include a section on accountability of State and non-State actors and should make recommendations from which follow-up mechanisms should be established. It should also define the applicable standard of proof. The challenge with regard to the standard of proof is to ensure that a balance is struck to allow not only flexibility but also to ensure that findings are credible. It is essential that findings can stand up to scrutiny. The criminal law standard of proof ‘beyond reasonable doubt’ has no place in commissions of inquiry, whose function is not to establish individual criminal responsibility. Rather, the starting point should be the standard of the balance of probabilities.
With regard to identifying individuals accused of perpetrating human rights abuses, a clear and convincing standard must be applied if individuals are going to be publically named, both for the protection of the individual concerned and to avoid accusations of politicizing an issue....