Aksenova and Bergsmo on Fact-Finding Commissions

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“Defining the Purposes, Mandates and Outcomes of Fact-Finding Commissions Beyond International Criminal Justice”

By Marina Aksenova and Morten Bergsmo

FICHL Policy Brief Series No 38.

“The use of international fact-finding commissions into allegations of serious violations of international criminal, humanitarian or human rights law have increased in recent years[1]. The United Nations Secretary General (‘UNSG’) has stressed their growing importance in enhancing human rights protection and combatting impunity[2]. This can be explained by both increased accountability expectations and stark limitations of the emerging international criminal justice system, which focuses on individual criminal responsibility for specific charges[3]. A non-exhaustive overview of international fact-finding mandates between 1992 and 2015 shows that such missions are diverse, geographically dispersed, and established by various bodies, under different circumstances. This plurality is reflected in the purposes, authorising bodies, scope, and outcomes of fact-finding missions. While a considerable number of fact-finding missions are conducted by regional and non – governmental organisations (‘NGOs’)-and to a lesser extent by States – interests of brevity restrict the present analysis to international bodies.

Purposes of Fact-Finding

There are three main purposes of establishing facts in international law: (i) to create the basis for the peaceful settlement of disputes between two or more States; (ii) to supervise the execution of international agreements; and (iii) to supply the information required for international decision making under Article 34 of the UN Charter[4]. While the third purpose is formally constrained to the Security Council (‘UNSC’), a number of other UN organs also authorise fact-finding inquiries. Consequently, instead of a single specialised fact-finding body within the UN system, practice has evolved with a plethora of different fact-finding strategies originating from the variety of sources[5].

An Emerging Trend: Fact-Finding to Secure Compliance with International Standards

The Commission of Experts for the former Yugoslavia pursuant to UNSC Resolution 780 (1992) catalysed a new paradigm. In this case, fact-finding was used as a mechanism to secure better compliance with international standards, in a manner that sought to divorce the fact-finding structure from the will of particular states[6]. One relevant source, the UN Special Rapporteur on Truth, Justice, Reparation and the Guarantees of Non-Repetition, suggests that this trend includes extensive truth-seeking at the international level[7].

Fact-Finding as Evidence Collection for International Criminal Trials

It is important to distinguish between fact-finding as part of evidence collection in international criminal trials and fact-finding outside the criminal justice paradigm. The two processes are closely related. The fact-finding missions in the former Yugoslavia, Cambodia, Rwanda and Lebanon prompted the creation of international courts and tribunals, which subsequently gathered and processed evidence pertaining to the crimes falling within their jurisdiction. However, the goals of these two processes are different. International criminal trials deal strictly with establishing individual criminal responsibility for core international crimes, while fact-finding missions outside of international criminal justice purport to achieve diverse objectives stipulated in their respective mandates.

Applicable Standards in Fact-Finding for Criminal Trial and Other Fact-Finding Mandates

The standards applicable to these two processes are distinct. Criminal trials require proof beyond reasonable doubt as well as some degree of verification of the evidence presented at trial. Facts collected during international criminal processes are not always reliable: cultural, educational and linguistic factors often distort witness testimony, while international prosecution may even fail to obtain necessary evidence due to the lack of co-operation at the domestic level, as we have seen in the ICC. In contrast, facts collected by fact-finding missions may not be subject to the same level of scrutiny because they are they are normally not meant to support individual criminal convictions.”

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Read the complete Policy Brief: Marina Aksenova and Morten Bergsmo, Defining the Purposes, Mandates and Outcomes of Fact-Finding Commissions Beyond International Criminal Justice, FICHL Policy Brief Series No. 38 (2015).

PURL: https://www.legal-tools.org/doc/b2aa73/.

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Marina Aksenova is post-doctoral researcher at iCourts, Centre for Excellence for International Courts, Faculty of Law, University of Copenhagen.

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Morten Bergsmo is Director, Centre for International Law Research and Policy, and Visiting Professor, Peking University Law School. He is also an ICC Consultant and Co-ordinator of the ICC Legal Tools Project. He has authored or edited more than 60 academic publications in international law, including 15 books, and is a frequent lecturer in Europe and abroad.

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[1] See, for example, the International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory (UN Human Rights Council Resolution 19/17, 22 March 2012), the Fact-Finding Mission on Syria (UN Human Rights Council Resolution 16/1, 29 April 2011), and the Independent International Fact-Finding Mission on the Conflict in Georgia (mandated by the Council of the European Union on 2 December 2008).

[2] Report of the Secretary General, “Strengthening and coordinating United Nations rule of law activities”, A/67/290, 10 August 2012, §19.

[3] Antonio Cassese, “Fostering Increased Conformity with International Standards: Monitoring and Institutional Fact-Finding”, in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law, Oxford University Press, 2012, p. 295.

[4] Karl Josef Partsch, “Fact-Finding and Inquiry”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, North-Holland, Amsterdam-London, 1981, vol. 1, p. 61.

[5] Late Richard B. Lillich et al. (ed.), International Human Rights: Problems of Law, Policy, and Practice (Casebook), Aspen Publishers, 2006, p. 981.

[6] Antonio Cassese, 2012, p. 303, supra note 3.

[7] UN Human Rights Council, “Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence”, 28 August 2013, A/HRC/24/42, §21.

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