TY - JOUR
AU - , de Vries, Barry
AB - Abstract Twenty years after the adoption of the Rome Statute questions concerning complementarity remain. There is no clear indication as to how international involvement would influence the admissibility of a case. One of the responses to human rights violations and possible international crimes that has risen to prominence in the past decades is fact-finding mandated by UN organs. At the same time these mechanisms have started to incorporate a focus on issues of international criminal law and individual criminal responsibility. As these mechanisms are starting to attempt to resemble a criminal investigation in some regards the question starts to rise as to what effect an international fact-finding mechanism can have on the admissibility of a case before the International Criminal Court. This article explains how these mechanisms need to be viewed in the context of the complementarity-regime of the Rome Statute. 1. Introduction The interaction between fact-finding, international criminal law and international criminal tribunals has received relatively little attention within literature,1 although it appears to be gaining more attention in recent years.2 With fact-finding missions increasingly including international criminal law since the 1990s, the increased attention is logical. The scarcity of attention it has received so far, does mean that significant questions still remain and that it is necessary to look more in-depth at the interaction between international criminal law and international fact-finding. Most of the literature has been focused on the manner in which the reports of these missions have been used in cases before international criminal courts and tribunals or on the manner international criminal law has influenced current fact-finding missions, but so far none have looked at the status of a fact-finding mission within the complementarity regime and thus on the question whether fact-finding can have a direct effect on the admissibility of a case before the International Criminal Court (ICC). This article seeks to fill that void. Although fact-finding takes place in a wide variety of ways by a wide variety of actors, this will focus specifically on the issue of international fact-finding done in the field of human rights and humanitarian law. When fact-finding is discussed in the context of complementarity this is often done to mention how work by fact-finding commissions may be used either to support the bringing of a case by the prosecutor or to assess the possible unwillingness or inability of a state to investigate or prosecute an individual.3 But with the current move of many fact-finding commissions to focus more on international criminal law and seemingly attempting to more closely approximate an actual criminal investigation, it has become increasingly interesting to see how such a fact-finding commission might interact with the complementarity regime of the ICC. This article will start out by briefly outlining the complementarity regime within the Rome Statute, before giving an overview of the development of fact-finding missions throughout the 20th and the early 21st century. It will then turn to the aspects of the complementarity regime that are especially important to determine the possible status of official international fact-finding missions and assess these in light of the modern interpretation of human rights law and humanitarian law fact-finding. It will determine whether a fact-finding mission might be considered as an investigation in the context of the Rome Statute’s complementarity regime. It will subsequently discuss whether such international approaches could be considered when determining the admissibility of a case. 2. Complementarity It is clear in the Rome Statute that complementarity is one of its main principles, with the principle being mentioned in the preamble as well as having multiple articles dedicated to it. The inclusion of the principle in such a prominent fashion shows the primacy that the ICC, in principle, gives to national investigations and prosecutions.4 This has been reaffirmed in several decisions, but considering how important the principle is within the Statute, there has been relatively little in the way of jurisprudence on the issue.5 We are therefore reliant on these few decisions and general treaty-interpretation for the interpretation of the concept of complementarity. The importance of complementarity comes from the realities of the ad hoc Tribunals, which were imbued with primacy over domestic proceedings.6 The primacy of the ad hoc Tribunals has been considered as one of the factors that led to them not being sufficiently sensitive to local realities, harming the local populations perception of their legitimacy.7 The inclusion of the principle of complementarity within the ICC Statute had overwhelming support during the drafting,8 especially as it could be considered as a means to protect state sovereignty.9 The manner in which complementarity should be interpreted in specific cases is still not entirely clear, largely due to the jurisprudence only providing abstract solutions without indicating how the principle should be interpreted in detail.10 The basis of complementarity is that the action of a state that has jurisdiction over the crime prevents the admissibility of a case before the ICC.11 Any detailed description of how complementarity works, must logically start with Article 17 ICC Statute, as this article provides the mechanism for implementing complementarity.12 This article stipulates that a case is inadmissible if this case is already investigated or prosecuted, or has been prosecuted, unless the state that conducts the investigation or prosecution is unwilling or unable to genuinely carry out the prosecution or investigation. This means that the ICC follows a two-step test in the context of complementarity to determine whether a case is admissible or not. Firstly, the court looks whether there is an ongoing investigation or prosecution. The determination whether there is such an investigation or prosecution needs to be made at the time of the proceedings, due to the article using the phrase ‘is being investigated or prosecuted’, which requires that the investigation or prosecution is ongoing.13 When the Court determines that there is an investigation or prosecution it then needs to determine whether the state is unwilling or unable to genuinely carry out such an investigation or prosecution.14 This approach has been consistently applied by the Pre-Trial Chambers as well as the Appeals Chamber.15 Both the determination whether there is an investigation or prosecution ongoing as well as whether a state is unwilling or unable to genuinely conduct such an ongoing investigation or prosecution are made by the Court.16 The first instance of admissibility is most often the most straightforward scenario, and that is where there has been no investigation and no action by a state. While there have been authors which have disagreed with this notion and have put forth the argument that even when a state is inactive that state must be unwilling or unable,17 this reasoning seems illogical when looking at the provision and has been disavowed by the ICC.18 This was first addressed in the Decision on the Warrant of Arrest in the Lubanga-case, where the pre-trial Chamber stated in the absence of an acting state, the Chamber need not make any analysis of unwillingness or inability.19 In the appeal on admissibility in the Katanga-case the Appeals Chamber clarified that this went against the wording of Article 17 which explicitly refers to unwilling an unable only in the context of an ongoing investigation or prosecution.20 The Appeals Chamber stated furthermore, that such an interpretation would go against the underlying purpose of the Rome Statute to bring about an end to impunity, as the theoretical willingness or ability to investigate or prosecute would render a case inadmissible, even though there is no realistic outlook of such an investigation or prosecution actually taking place.21 In order for the Court to determine that there is an investigation in accordance with Article 17 ICC Statute, the investigation needs to concern the ‘same individual and substantially the same conduct’.22 The Court understands that for an investigation to cover the ‘same conduct’ that there needs to be overlap between the incidents under investigation in the domestic proceedings and those that are the subject matter of the case facts before the ICC.23 However, since there is only a need for it to be substantially the same conduct, this allows for some discretion, leading to the conclusion that national investigation need not be entirely identical to the case facts before the ICC.24 Only when the court has determined that there is an ongoing investigation or prosecution does the question of possible unwillingness or inability become an issue to consider.25 The possibility of admissibility in the case of unwillingness was included to allow the court to act in those cases where there might be an investigation or prosecution, but the intent of the state is not to do so genuinely. However, due to the fact that allowing the court to determine when a state could be considered as unwilling appeared to some states as going against the principle of state sovereignty, it was difficult to come to a concrete definition of unwillingness during the drafting of the ICC Statute.26 The question of whether a state is unwilling to genuinely conduct an investigation or prosecution concerns three factors that are found in Article 17(2) ICC Statute. It concerns firstly whether the proceedings were made in order to shield the person from ICC jurisdiction, secondly whether there has been an unjustified delay inconsistent with an intent to bring the person to justice and thirdly whether the proceedings are not being conducted independently and impartially and are conducted in a manner inconsistent with the intent to bring the person to justice.27 The ICC Statute itself does not elaborate further on how these different types of unwillingness need to be interpreted, which allows a relatively large margin of appreciation for the court. Although it can be argued that the last two factors are aspects of shielding, the fact that these are qualified with ‘inconsistent with an intent to bring the person concerned to justice’ has some subjectivity that differentiates them from ‘shielding’.28 The notion of proceedings being conducted in such a way as is inconsistent with an intent to bring the person concerned to justice has been further developed in the rules of procedure and evidence, which refers to internationally recognized norms and standards for prosecution of similar conduct.29 This has been further developed in the Al-Senussi case where the Pre-Trial chamber stated that this does not concern general human rights issues, but that such a consideration is limited to those considerations that have the potential to bear upon any of the scenarios envisaged under Article 17(2) ICC Statute.30 This was expounded upon by the Appeals Chamber that this consideration does not involve the assessment of whether due process rights have been breached per se, but rather that it refers to proceedings which will lead to a suspect evading justice, which in part was justified due to the purpose of the Statute, namely the putting an end to impunity.31 However, the Appeals Chamber acknowledged that in certain circumstances egregious violations of the rights of the suspect can lead to domestic investigations no longer being considered consistent with an intent to bring the person to justice.32 The other manner for a case to be admissible even if there is an ongoing investigation of prosecution, is if, ‘due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’.33 This means that for there to be ‘inability’ there must be a causal link between the total or substantial collapse or unavailability of the judicial system and the state being unable to obtain the accused, evidence or otherwise carrying out of the proceedings.34 To determine whether this is the case there needs to be an analysis of the judicial system and the political climate. In the admissibility challenge in the Saif Al-Islam case the Court noted the rebuilding of the justice system in Libya, but because of a continued inability of Libya to exercise its judicial powers across the entire territory the justice system should still be considered as unavailable in the context of Article 17.35 Another aspect of inability is inability with respect to apprehending the accused, or obtaining evidence or testimony such that proceedings cannot be carried out. In the Saif Al-Islam admissibility decision that due to an inability to ascertain control and provide adequate protection for witnesses, as well as a lack of full control of the detention facilities, Libya was to be considered as unable in the context of Article 17 ICC Statute.36 Consequently, this means that inability is not only referring to situations resulting in the total or substantial collapse, but can also include situations where there is a general lack of institutions or lack of judges and prosecutors with sufficient training.37 3. Development of the Influence of International Criminal Law in Fact-finding In order to determine the status of fact-finding missions under the complementarity regime it is necessary to see how these missions have changed and what role they now play in the response to violations of human rights law and humanitarian law. A distinction needs to be made between fact-finding missions set up through international organizations and fact-finding missions conducted by NGOs. While this article focuses on the former the latter has been important in the development of official fact-finding missions and will therefore shortly be mentioned in this context. The notion of (official) international fact-finding has long been an important aspect of international law. Fact-finding was originally intended as a purely factual investigation to be conducted as a form of inter-state dispute settlement and it was included in that manner in the First Hague Conventions of both 1899 and 1907.38 The reports of these mechanisms were intended to be confined to a statement of fact, leaving questions of a legal nature to be determined by arbitration,39 although in reality many of the fact-finding missions in the first half of the 20th century did settle disputes independently.40 The importance of international fact-finding was confirmed when it was included in this regard in Article 33 UN Charter as a distinct means of dispute settlement. Fact-finding missions also became methods for UN organs to gain information about situations in order to determine their course of action.41 The Secretary-General can independently institute a fact-finding mission under the auspices of the UN on the basis of Articles 98 and 99 of the UN Charter, but it can also do at request of a state. The role these fact-finding missions played were reaffirmed in the 1991 Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security, which again stressed the reporting of factual findings.42 While international fact-finding missions retained this mostly factual nature throughout most of the 20th century there was a development ongoing in national fact-finding that would significantly alter the nature of international fact-finding. It was especially in the late seventies and eighties that civil society started a development that would have great influence on human rights fact-finding. NGOs attempted to document human rights abuses in different situations and these were in many cases the main form of documentation available on the human rights situation. These NGOs oftentimes did so with a view to influence perception in an attempt to demand accountability for these abuses.43 It was after the fall of different regimes in Latin America that the first wave of official human rights fact-finding mechanisms were created in the form of Truth and Reconciliation Commissions (TRC), which were based on these initiatives of civil society. These TRC were temporary bodies officially appointed by the domestic state mandated to issue a report on the human rights abuses by the previous regime or during a previous conflict.44 It was during this period that UN fact-finding missions were started to be set up to aid in the protection and documentation of human rights, these new fact-finding missions started to go further than simply stating the facts, but also qualified facts as human rights violations, in an attempt to alert the world of such violations.45 A direct line can be made from these fact-finding missions to the type of international human rights fact-finding missions that rose to prominence in the 1990s. These have largely been conducted under the auspices of the United Nations, and nowadays especially in the context of the Human Rights Council.46 These types of fact-finding missions were a significant departure from the way international fact-finding missions were originally envisioned under the Hague Convention. As these new international fact-finding missions would not only report on issues of fact, but would also focus significantly on legal issues. It was part of the 1990s renewed confidence in international law, which led to the Yugoslavia Commission truly starting this development in earnest.47 The results of this Commission also planted the seeds for other developments, namely the inclusion of international criminal law in many fact-finding mandates and more focus on the issue of possible individual criminal responsibility, as the first interim report of the Yugoslavia Commission directly led to the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY).48 The development towards including international criminal law became even more noticeable after the creation of the ICC, since when the majority of human rights fact-finding missions were given a mandate with references to international criminal law and individual accountability, such as ‘investigating crimes’, ‘ensuring full accountability’ or ‘identifying those responsible’.49 Even some of those fact-finding missions that did not have an explicit reference to international criminal law within their mandate saw it necessary to include international criminal law as part of the applicable law.50 Traditionally most human rights fact-finding mechanisms appear to not have been focused on the notion of individual responsibility, but rather on the documenting of facts or at most on the issue of state responsibility.51 This seems to have changed in recent years towards more focus on individual responsibility, which can be traced back to the increased inclusion of a criminal law focus.52 This has been classified as a so-called ‘accountability-turn’ within fact-finding mechanisms, which currently are often forced through their mandate to deal with not only matters of fact, but matters of international criminal law as well.53 It must be noted that this of course is but one kind of fact-finding mission and there are other types in use as well. This development has not only affected the outcomes of fact-finding commissions, but has in many cases affected their entire nature and process. Within some international fact-finding commissions for example there was the notion that their findings and reports might be used either directly or as facilitation in a criminal proceeding which subsequently affected the manner in which these commissions handled and preserved their evidence.54 Since the turn towards more of a criminal law focus there has also been an increased focus towards the methodology of the investigation and the collection of evidence. While in early reports the sections on this issue were relatively simple without giving much elaboration, this has turned to a more crucial consideration, with more attention to the issue of corroboration of evidence.55 Modern fact-finding mechanisms have also shown greater attention to the issue of data retention and evidence handling, providing more detail concerning data collection, storage and accessibility for future criminal investigations.56 These changes all stem from the underlying notion to facilitate the use of the collected information in subsequent criminal proceedings. This shows that, in some regards there has been a significant effort to more closely approximate the procedures and intentions of official criminal proceedings, but it needs to be clear that there has not been a complete transposition of such procedures, thus it cannot be said that international fact-finding missions could currently in any manner be considered as equivalent to criminal proceedings. It must also be noted that there are significant criticisms against this development to include international criminal law and to attempt to approximate a criminal investigation and it is certainly debatable whether this is a desirable development for fact-finding. One of the criticisms that is raised against this development is that due to a focus on international criminal law, fact-finding is narrowed to only those incidents rising to the level of international crimes, whereas fact-finding commissions should view the broader context of a conflict and report on the historical and political narratives, rather than focusing solely on crimes.57 A similar criticism has been made in the context of accountability, that individual accountability is but one aspect and that human rights fact-finding should focus on a broader concept of accountability.58 The focus on international criminal law in some of the mandates has also been criticized in a different regard, through the focus on international criminal law in mandates there appears, in some mandates at least, to have been some prejudice and predisposition, through the wording in mandates it at times appear as though the mandate itself already states that violations have occurred, prior to the fact-finding actually taking place.59 4. Is a Fact-finding Mission an Investigation; Could it be? This leads to the question whether a fact-finding mechanism would be considered as an investigation in the context of Article 17 ICC Statute or whether it could possibly do so under specific circumstances or in a specific form. The term ‘investigation’ is often used to describe the activities of commissions of inquiry and generally this is also the term used in their mandates.60 While the term itself might be similar, this does not necessarily mean that the interpretation of the term is similar to the manner it is interpreted in the context of Article 17 ICC Statute. No mention is made in Article 17 ICC Statute, nor anywhere else in the Rome Statute, of any alternative measures to deal with international crimes. While there has been some discussion concerning TRC and their possible position, there is no clear certainty whether these would be sufficient or not.61 There do appear to be some minimum standards that need to be fulfilled before anything could be considered as a measure rising to the level of an investigation as meant in Article 17 ICC Statute. There have been some suggestions that non-judicial efforts at accountability, short of criminal prosecution, could be sufficient to fulfil the complementarity requirements. It has for example been argued that TRC, comparable to those employed in South Africa, which allow for conditional amnesties might be seen as a genuine investigation in the context of Article 17 ICC Statute, however it is not completely clear whether this would be the case.62 TRC are often seen as a form of fact-finding,63 which could be seen as there being some support for fact-finding mechanisms to be considered under the complementarity regime. There is however a significant difference between TRC and international fact-finding missions, as those that are seen as a possible preclusion to admissibility have the power to offer amnesties or otherwise authorize prosecution,64 something which an international fact-finding mission cannot do. This argument also generally seems to focus more on the outcome of such an effort, or on non-judicial efforts instead of a prosecution, as this argument often focuses on the approach to accountability of these efforts, and does not often approach it as a question of whether it can be seen as an investigation.65 It has however been suggested by Schabas that a TRC or something similar might amount to a form of investigation, however without indicating why, he simply states that this is an unlikely interpretation.66 The question that therefore needs to be asked is how the term investigation needs to be interpreted within Article 17 ICC Statute and what the ultimate goal of the investigation ought to be for it to be considered under complementarity. To answer whether a fact-finding mission would qualify depends on whether the term investigation needs to necessarily be interpreted as a criminal investigation. While the term itself cannot be considered as conclusive, the manner in which it is used within Article 17 ICC Statute and the Statute in general seems to indicate that it should be considered as such.67 It has also been argued that even in the case of a TRC it could be considered as a preliminary investigation, but the ultimate objective of an investigation should remain a potential criminal prosecution.68 This understanding of investigation can be seen to be confirmed by the fact that Article 17 ICC Statute references ‘the decision to prosecute’, which presupposes a criminal or individualized investigation.69 There is an important question concerning the notion of an investigation and that is what the necessary outcome of an investigation is. If one looks at precedents set by the European Court of Human Rights (ECtHR) it indicates that any investigation must seek and be ‘capable of leading to the identification and punishment of those responsible’.70 In the Inter-American Court for Human Rights (IACHR) case of Velasquez Rodríguez v Honduras there also seemed to have been a requirement of an investigation potentially leading to criminal sanctions against an individual.71 If the ultimate goal of an investigation needs to be the possibility of criminal sanctions this consequently means that an investigation must not only be of a general nature, but must attempt to individualize responsibility and potentially act as the basis for criminal prosecution of an individual in order to be considered as an investigation in the name of Article 17 ICC Statute.72 This generally does not really seems to be the case with most fact-finding mechanisms, even with most of the commissions that have had some form of international criminal law focus. It seems likely that the approach of the ECtHR and the IACHR is the approach that will also be taken by the ICC. This especially appears to be the case due to the strict interpretation and application of Article 17 ICC Statute by the Court. The Court requires detailed information about all aspects of domestic investigations and requires investigations to be tangible, concrete and progressive.73 The decisions of the Appeals Chamber on the issue of admissibility have generally been based on a strict interpretation of the text of Article 17 ICC Statute, taking a very restrained approach, rejecting expanding the scope of admissibility challenges on the basis of policy arguments.74 In this regard it is also noteworthy that the legal characterization of the charges should be considered as ‘an additional indicator of the actual subject matter of the domestic proceedings’,75 which indicates that a criminal investigation and potential prosecution is necessary as otherwise it is difficult to assess the legal characterization as being criminal charges. It is therefore unlikely that mechanisms that fall outside of the interpretation of an ‘investigation’ in line with the interpretation of the ECtHR and the IACHR would fall within the interpretation of an ‘investigation’ as included in Article 17 ICC Statute. These considerations do not however, necessarily mean that a fact-finding mission is incapable of being an investigation. There does not appear to be a requirement of a strictly criminal investigation, there is an opening for other investigations to be considered as well, however the goal of the investigation would need to be determining the individual responsible in order to potentially prosecute this person. This requires assurances that it is set up and conducted in such a way that it could potentially lead to conclusions and admissible evidence which can lead to the possible prosecution of a person. The goal of possible future criminal prosecutions has already been part of several different fact-finding missions, for example it was stated by the Darfur Commission that it ‘does not […] make final judgement as to criminal guilt; rather, it makes an assessment of possible suspects that will pave the way for future investigations, and possible indictments, by a prosecutor, and convictions by a court of law’.76 This is an example of the notion that at least for some commissions there is the belief that a possible future prosecution is the goal of some fact-finding mechanisms.77 It has been argued that fact-finding can lead towards effective investigations and prosecutions.78 It is questionable however, whether this shared goal alone would be enough to qualify as an investigation in the context of Article 17 ICC Statute. One of the major problems that often arises in the context of fact-finding mechanisms, which might prove problematic for considering them as an investigation, is that the evidence that they use and can provide would often not be directly usable as evidence in the context of a criminal prosecution, even if it is directly relevant to the Prosecution’s case.79 This is for a large part due to the nature of many fact-finding mechanisms, which leads to fact-finding mechanisms to be mainly useful for investigative leads80 or providing contextual evidence.81 An important issue in this regard is the standard of proof applied by fact-finding mechanisms. Up until recently these mechanisms did not have a uniform standard of proof, either not explaining the standard applied, or using disparate standards.82 Even in those cases where there was a similar standard these were not applied in similar manner. An example of this can be found in the use of the standard ‘reasonable grounds to believe’, the report of the Commission of Inquiry on the Human Rights situation in Palestine and other occupied Arab territories stated that due to this low standard of proof it did not identify individuals,83 while the 2017 Group of Experts on Yemen did.84 This leads to the question that even though these mechanisms purport to use a similar burden of proof, it is questionable whether it is applied in a similar manner. This has been changed relatively recently with most of the fact-finding mechanisms following the standard set forth in the guidance and practice document of the United Nations Office of the High Commissioner on Human Rights, which calls for a standard of ‘reasonable grounds to believe’.85 This document is however non-binding and would only guide those mechanisms set up through the office of the High Commissioner or the Human Rights Council. An issue that is related to the standard of proof is the potential problems that fact-finding mechanisms often have in the gathering of evidence, problems that mainly arise from two major issues. The first is that international fact-finding mechanisms often do not have support from the state concerned, these mechanisms are most often set up without the consent of the state.86 Fact-finding mechanisms therefore often lack access to the area affected, needing to rely on investigatory methods that are possible without access to the area, limiting the potential for a thorough investigation.87 Without assistance of the effected state it is also not possible for the fact-finding mechanism to gain access to documentation of this state, limiting the available information that at times is necessary to come to conclusions.88 A lack of cooperation of the state can therefore significantly hamper any possible investigation by an international fact-finding mechanism and can bring the conclusions of a report into question.89 It therefore appears necessary for any fact-finding mechanism to fall within the complementarity mechanism to have the consent of the state concerned, as only this allows for access to the affected area and the relevant information. Another issue restricting the investigations of fact-finding mechanisms is that contrary to domestic proceedings, international fact-finding mechanisms do not have the investigatory powers granted to law enforcement agencies. Fact-finding mechanisms do not have the authority to employ several regular law enforcement procedures, such as arresting individuals, issuing subpoenas and conducting searches against the will of the suspected individual, as they do not have the authority to employ coercive methods.90 This is the case regardless of the acceptance of the fact-finding mechanism by the effected state and further restricts the investigatory methods available, especially compared to regular domestic proceedings. Another aspect in which fact-finding mechanisms differ from criminal investigations and proceedings is in the individuals that are members of these mechanisms. Because the instituting body is a political body, the selection of the members is often done on the basis of a compromise, leading to potential compromises with regard to experience and expertise.91 It is therefore not uncommon for the members of such mechanisms to have no experience as law enforcement officials or judges and often lack the experience necessary to lead an investigation. This can be seen in the lack of the necessary management skills, especially considering the time-constraints of these mechanisms. This lack of experience has more than occasionally led to an inability to gain the necessary support or by spending too much time on administrative and logistical preparation, which reduces the available time for the actual investigation.92 The expertise of the members is likewise not always congruent with the subject matter of the investigation. This can for example be seen in the Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory, where the members were all experts in human rights law, rather than international humanitarian law.93 In this regard it would be difficult to therefore state even if a fact-finding mission theoretically has the goal to lead to successful prosecutions, in all practicality the ones that have been employed cannot attain this goal. It should therefore be considered that the general term investigation as it is used in the mandates need to be interpreted differently and more broadly than the strict interpretation of Article 17 ICC Statute. This consequentially means that in the activities of commissions of inquiry as they are generally conducted would not satisfy the requirements of Article 17 ICC Statute. 5. Developments in Fact-finding to more Closely Approximate a Criminal Investigation Several of the different criticisms that have been made against fact-finding mechanisms have been taken up in the creation of different standards as well as in the creation of the mandates for subsequently created mechanisms. Through addressing these criticisms, it appears as if fact-finding mechanisms are even further developing a criminal law focus in some regards and an attempt is made to more closely approximate an actual criminal investigation. One of the instruments that came out of this was the Updated Principles on Impunity94 adopted by the UN Commission on Human Rights in 2006. This instrument attempted to deal with some of the main points of criticism against commissions of inquiry, most notably the different standards of proof and some of the concerns about due process within these commissions of inquiry. In this context its’s especially principles 7, 8 and 9 that seek to create some uniformity and minimum standards for commissions of inquiry. Principle 8 makes clear that commissions of inquiry are not similar to courts of law, but it does not reference criminal investigations.95 Principle 8, together with principle 7, seeks to ensure the independence and impartiality of any commission of inquiry, which attempts to guarantee that the actual investigation would be impartial and independent.96 Principle 9 provides for some due process rights for the suspected perpetrators.97 These principles make clear that the international community has sought to address some of the criticisms, which had been some of the main criticisms against their use in the context of criminal proceedings. It can also be seen as a step towards attempting to approximate a criminal investigation even more closely, by providing some of the safeguards that are considered necessary for a legitimate criminal investigation or prosecution. The Office of the UN High Commissioner for Human Rights has used these principles to provide a guide for the work of fact-finding mechanisms,98 which shows the relevance of these principles. Another important development to note in this regard is the new type of fact-finding mechanism that has been set up by the UN General Assembly in the context of Syria, the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011.99 The reason why this mechanism is so important in this context is that it might lead to a new stage within fact-finding mechanisms and their relationship with international criminal law. The goal of this mechanism is to assemble and analyse evidence of possible international crimes to a prosecutorial standard and focus on individual criminal responsibility.100 In the report of the Secretary-General on the mechanism of 19 January 2017, it is clearly referenced as going further than regular fact-finding missions, specifically focusing on collecting and analysing evidence to identify specific perpetrators to be used in criminal prosecutions.101 The mechanisms rules concerning evidence gathering appear to be quite different from most other fact-finding missions, seemingly including an attempt to approximate international criminal law standards.102 This mechanism would not take actual investigative steps itself, but rather gather, collect and index the evidence made available to it,103 which would probably preclude it from being considered as an actual investigation within the context of Article 17 ICC Statute. The influence of this approach can be seen by the fact that a similar mechanism has been set up in the case of Myanmar.104 The creation of this mechanism and the adoption of new instruments, such as the Updated Principles of Immunity, clearly fit into the ongoing development of focusing on the issue of individual criminal responsibility. This shows again the continued move towards an actual criminal investigation, but at least as far as the development since the Updated Principles on Impunity go, the evidence is most often not directly used in actual proceedings. In the context of the Mechanism for Syria it remains to be seen how this evidence could be used and what the response of judges and prosecutors towards its reports and evidence will be. There has also been some indication that these reports have probative value for the ICC, but the Court did stress that: ‘the methods utilized were not the same as the methods employed by police investigators or legal investigators, and it is quite precisely because they are not police investigations or legal investigations that the Chamber, when the time comes, shall accord them the appropriate weight of probative value. In other words, they will – the probative value will be given to the appropriate excerpts and paragraphs from these reports. This probative value will be given bearing in mind that these are reports established by UN services in an impartial manner with a concern to understand the events in question. The Chamber recalls yet again that these are neither police reports nor OTP investigations.’105 The Court thus again underlined that fact-finding missions as they are currently conducted, will not amount to investigations, but the statement does seem to indicate in some manner that if the methods utilized by fact-finding commissions would come closer, such mechanisms could possibly be considered as investigations. Consequently a fact-finding mission that was set up with some similarity to the apparent current goal and intention that the Independent Mechanism for Syria has, but with a somewhat more proactive investigative approach, set up with the authorization and explicit consent of the state might have a decent possibility of rising to an investigation capable of precluding the admissibility of a case before the ICC. For specific cases this would of course be dependent on the question of whether the investigation concerns the ‘same person/same conduct’, thus whether the proceedings ‘encompass both the person and the conduct which is the subject of the case before the Court’.106 6. Complementarity in the Case of International Involvement These developments clearly indicate continued inclusion of international criminal law and attempts to approximate criminal investigations in some regards. It must therefore be asked whether further approximation of criminal proceedings could potentially lead to international fact-finding mechanisms precluding the admissibility of a case before the ICC. Could an investigation not conducted by state organs could in any circumstances be seen as fulfilling the need for an investigation? The question of whether international action could be considered as being sufficient has been raised occasionally, but the discussion mainly focuses on the issue of regional tribunals and even there is no clear-cut answer that can be given to how this would influence the admissibility of a case.107 When one looks at Article 17 ICC Statute there seems to be no possibility for an international response to halt the admissibility of a case. The article very clearly states that the investigation must ‘by the state’, this has been seen in literature as blocking investigations not done by state organs.108 A strict interpretation of ‘by the state’ has also been acknowledged by the ICC Prosecutor in a policy paper, where he stated: ‘the principle underlying the concept of complementarity is that States remain responsible and accountable for investigating and prosecuting crimes committed under their jurisdiction and that national systems are expected to maintain and adhere to international standards”.109 This shows that the basis of the principle appears to be the responsibility of the state and that it needs to be an action of the state, however it does not lay out how an investigation needs to be structured. However, while this appeared to be the case initially, there has been some indication that the Appeals Chamber slightly opened up the provision, potentially allowing for an international response to pre-empt the admissibility of a case. This done in the decision concerning the admissibility of the Katanga case where the Appeals Chamber opted to use some different phrasing than the original text of Article 17 ICC Statute. The Appeals Chamber agrees with the submission of the Prosecutor that according to the clear wording of article 17 (1) (a) and (b) of the Statute, the question of unwillingness or inability of a State having jurisdiction over the case becomes relevant only where, due to ongoing or past investigations or prosecutions in that State, the case appears to be inadmissible. Article 17 (1) (a) of the Statute covers a scenario where, at the time of the Court's determination of the admissibility of the case, investigation or prosecution is taking place in a State having jurisdiction.110 Unlike article 17 ICC Statute, the Appeals Chamber opted to use the term ‘in a state’ rather than ‘by that state’, which could be seen as allowing for an international response taking place in a state that has jurisdiction to count as an investigation or prosecution in the context of Article 17 ICC Statute. The choice to use the phrase ‘in a state’ seems especially interesting in contrast to the fact that the Appeals Chamber generally interprets Article 17 ICC Statute in a strict and textual manner.111 In the rest of the decision, the Appeals Chamber focused on the clear wording of the Article 17 ICC Statute and followed the exact wording, therefore the choice to diverge from the exact wording seems to have been intended and explicit. The Appeals Chamber does seem to focus on the link between the activities of the state and unwillingness or inability to genuinely investigate, however it does not do so in the general question concerning whether investigations are ongoing.112 In paragraph 78 the Appeals Chamber does state that inaction of a State renders a case admissible, but it does not mention other possible manners of investigation and does not address the previous reference to investigations ‘in a state’ rather than ‘by a state’.113 As this wording seems to be going against the direct textual interpretation of Article 17 ICC Statute, it needs to be considered whether ‘in a state’ could be considered as being too broad an interpretation of the provision It must therefore be considered in the context of the intention of the provision. When one takes a broad reading of the term ‘by the state’ it could be said to include investigations which are authorized by the state, yet which are not directly conducted by the state. It could be argued that such types of investigations would even improve the impartiality and independence of investigations.114 Since the intention of the article is to allow for admissibility in case of inaction by the state, it would seem appropriate to allow for such an investigatory action authorized by the state. However, it seems to stretch the plain reading of Article 17 ICC Statute too far to also include international investigations which are conducted without the express request or authorization of the state. This would rule out international fact-finding missions set up without the approval of the State itself, as it would otherwise allow for inadmissibility even in the case of inaction by the state. It must also be noted that the principle of complementarity exists in large part to protect and ensure the sovereign rights of states.115 This foundation of the notion of complementarity could be interpreted as at least allowing for some freedom of choice as to the manner in which a state wishes to conduct investigations. Although there does not seem to be complete certainty, it does appear as though the Appeals Chamber might have opened up the possibility of an international response to be considered under the notion of complementarity. This would logically only be applicable in cases where the state actually invites and cooperates with a fact-finding mechanism. It seems unlikely that this would be the case with a mission conducted against the will of the state, as this could then under no circumstance be seen as an action by the state. 7. Conclusion Having regard for the nature of the complementarity regime as well as the nature and development of fact-finding mechanisms, it could be said that it might be possible that future fact-finding mechanisms could be classified as investigations in the context of Article 17 ICC Statute, if this slide towards international criminal law continues. Nevertheless, it would seem apparent that such a commission should be deliberately set up to approximate a criminal investigation as closely as possible, thereby possibly coming closer to Joint Investigation Teams, which are at times used by law enforcement. Most of the current commissions would certainly not seem to qualify under any circumstances, even if the goal of these would be to facilitate criminal prosecutions, the nature of these mechanisms and commissions would not rise to the level of investigations. The Mechanism for Syria might however lead to a new paradigm in fact-finding, as it attempts to approximate a criminal investigation in some regards and specifically focuses on linkage evidence necessary for successful prosecution.116 It also has strict rules of procedure and the goal is for it to be used in actual criminal proceedings. Thus, if such a mission would be conducted with the authorization or express consent of the state, it might lead to a case being inadmissible for the ICC. However, it can certainly be questioned how much the Mechanism can really be classified as a normal fact-finding mission and whether the very confined scope is a positive development. Consequently, it must be questioned whether continuing the approximation of a criminal investigation and increasing focus on international criminal law is desirable? In this regard it needs to be stated that the outcomes of fact-finding missions have so far been generally considered with great scepticism by international courts and tribunals, or even not considered at all. While this at times is clearly based on the probative value of these reports and the difficulty of using these reports as direct evidence, it could easily be argued that there does appear to be some form of preconception concerning these reports.117 Taking this into account with the difficult that there would be for a fact-finding commission to fulfil the requirements of an investigation in the context of Article 17 ICC Statute. It does appear that it might be better, also in light of the many criticisms that have been made to the international criminal law focus of many of these commissions, not to continue this slide into a criminal investigation and instead go back to the more traditional notion of a human rights fact-finding commission, attempting to document violations of human rights law or humanitarian law, putting them within the greater historical or political context, instead of trying to assign responsibility to individuals. This appears to be especially true, in light of the role that the reports of fact-finding missions most often play in any case and especially considering how they have been used by international courts and tribunals, even if the report includes a criminal law focus.118 It seems therefore counterproductive to continue to focus so extensively on international criminal law, a focus which ensures that other aspects are at times overlooked, while at the same time disproportionally consuming the resources of fact-finding missions and stretching their capacity.119 There ought to remain a distinct difference between a criminal investigation and fact-finding, which could possibly mean a more expanded use of joint investigation teams for those instances where it is appropriate to have an international criminal investigation. Footnotes 1 P Alston and S Knuckey, ‘The Transformation of Human Rights Fact-Finding: Challenges and Opportunities’ in P Alston and S Knuckey (eds), The Transformation of Human Rights Fact-Finding (OUP 2016) 7; C Stahn and D Jacobs, ‘The Interaction between Human Rights and Fact-Finding and International Criminal Law’ in Alston and Knuckey (eds), ibid 256. 2 Some examples of this include L Talsma, ‘UN Human Rights Fact-Finding: Establishing Individual Criminal Responsibility?’ (2012) 24 Florida Journal of International Law 383; M Bergsmo (ed), Quality Control in Fact-Finding (Torkel Opsahl Academic EPublisher 2013); D Jacobs and C Harwood, ‘International Criminal Law Outside of the Courtroom: The Impact of Focusing on International Crimes for the Quality of Fact-Finding’ in Bergsmo (ed), ibid; L van den Herik and C Harwood, ‘Commissions of Inquiry and the Charm of International Criminal Law: Between Transactional and Authoritative Approaches’ in Alston and Knuckey (n 1); S Krebs, ‘The Legalization of Truth in International Fact-Finding’ (2017) 18(1) Chicago Journal of International Law 83. 3 M Frulli, ‘Fact-Finding or Paving the Road to Criminal Justice? Some Reflections on United Nations Commissions of Inquiry’ (2012) 10 Journal of International Criminal Justice 1323, 1331. 4 JT Holmes, ‘Complementarity: National Courts versus the ICC’ in A Cassese, P Gaeta and JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary Volume I (OUP 2002) 667–68; H Olasolo, ‘International Criminal Court and international Tribunals: Substantive and Procedural Aspects’ in CJ Piernas (ed), The Legal Practice in International Law and European Community Law (Koninklijke Brill NV 2007) 166; D Nsereko, ‘The ICC and Complementarity in Practice’ (2013) 26 Leiden Journal of International Law 427, 429. 5 G Bitti and MM.El Zeidy, ‘The Katanga Trial Chamber Decision: Selected Issues’ (2010) 23 Leiden Journal of International Law 319, 319; G-J Knoops, An Introduction to the Law of International Criminal Tribunals (Koninklijke Brill NV 2014) 84. 6 art 9 Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May 1993, UNSC Res 827 (1993) UNDoc S/RES/827 (1993)); art 8 Statute of the International Criminal Tribunal for Rwanda UNSC Res 995(1994) UNDoc S/RES/955 (1994); H Olasolo, ‘International Criminal Court and international Tribunals: Substantive and Procedural Aspects’ in CJ Piernas (ed) (n 4) 164; J Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Martinus Nijhoff Publishers 2008) 41–42. 7 KC Moghalu, ‘Image and Reality of War Crimes Justice: External Perceptions of the International Criminal Tribunal for Rwanda (2002) 26(2) The Fletcher Forum of World Affairs 21, 29–30; R Zacklin, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 Journal of International Criminal Justice 541, 544; D Arzt, ‘Views on the Ground: The Local Perception of International Criminal Tribunals in the Former Yugoslavia and Sierra Leone’ (2006) 603 The ANNALS of the American Academy of Political and Social Science 226, 231–35; M Klarin, ‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’ (2009) 7 Journal of International Criminal justice 89, 95–96; A Novak, The International Criminal Court (Springer International Publishing 2015) 54. 8 Holmes (n 4) 672–73; Novak, ibid 54; WA Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2016) 448–51. 9 Holmes (n 4) 671; Stigen (n 6) 16–18; OC Imoedemhe, The Complementarity Regime of the International Criminal Court: National Implementation in Africa (Springer 2017) 24–25. 10 Imoedemhe, ibid 32. 11 Holmes (n 4) 667–68; B Pisani, ‘The Rome Statute and Domestic Proceedings for Ordinary Crimes: The (In)Admissibility of Cases before the International Criminal Court’ in V den Herik and C Stahn (eds), The Diversification and Fragmentation of International Criminal Court (Koninklijke Brill NV 2012) 462; Schabas (n 8) 447. 12 Schabas (n 8) 447. 13 Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, ‘Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case’, Appeals Chamber, Case No. ICC-01/04-01/07-1497, 25 September, 2009 (hereafter: Katanga: Appeal on Admissibility), ¶ 75–78; D Robinson, ‘The Mysterious Mysteriousness of Complementarity’ (2010) 21 Criminal Law Forum 67, 70–71; S Sácouto and K Cleary, ‘The Katanga Complementarity Decisions: Sound Law but Flawed Policy’ (2010) 23 Leiden Journal of International Law 363, 368; Schabas (n 8) 454. 14 MM El Zeidy, The Principle of Complementarity in International Criminal Law (Martinus Nijhoff Publishers 2008) 161; Robinson, ibid 71; Nsereko (n 4) 441–42; Knoops (n 5) 86. 15 Katanga: Appeal on Admissibility (n 13) ¶ 75. 16 Novak (n 7) 55. 17 M Arsanjani and WM Reisman, ‘The Law-In-Action of the International Criminal Court’ (2005) 99 American Journal of International Law 385, 396–97; W Schabas, ‘Prosecutorial Discretion v. Judicial Activism’ (2008) 6 Journal of International Criminal Justice 731, 757–58. 18 JK Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (OUP 2008) 103–05; Robinson (n 13) 81–91; Schabas (n 8) 455–56. 19 Prosecutor v Thomas Lubanga Dyilo, Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, Pre-Trial Chamber I, Case No ICC-01/04-01/06-8, 24 February 2006, ¶¶ 29–30. 20 Katanga: Appeal on Admissibility (n 13) ¶ 79. 21 ibid. 22 Prosecutor v William Samoei Ruto et al. ‘Judgment on the appeal of the RepubUc of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”’, Appeals Chamber, Case No ICC-01/09-01/11, 30 August 2011, ¶ 40. 23 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ‘Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”’ Appeals Chamber, Case No ICC-01/11-01/11, 21 May 2014, ¶¶ 71–72. 24 Schabas (n 8) 452. 25 El Zeidy (n 14) 161; B Batros, ‘The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC’ (2010) 23 Leiden Journal of International Law 343, 354; Knoops (n 5) 89. 26 Holmes (n 4) 672–74; El Zeidy (n 14) 163; Pisani (n 11) 466. 27 art 17 ICC Statute. Knoops (n 5) 85; Imoedemhe (n 9) 32. 28 El Zeidy (n 14) 169–70; Stigen (n 6) 257. 29 Rule 51 Rules of Procedure and Evidence of the ICC. 30 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the admissibility of the case against Abdullah Al-Senussi, Pre-Trial Chamber I, Case No ICC-01/11-01/11, 11 October 2013, ¶¶ 242–43. 31 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ‘Judgment on the appeal Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi”’ Appeals Chamber, Case No ICC-01/11-01/11, 24 July 2014, ¶ 230. 32 ibid. 33 art 17(3) ICC Statute. 34 El Zeidy (n 14) 223; Stigen (n 6) 314. 35 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi (n 30) ¶¶ 200–05. 36 ibid, ¶¶ 209, 211. 37 Imoedemhe (n 9) 36. 38 arts 9–14 Convention pour le Règlement Pacifique des Conflits Internationaux; Jacobs and Harwood (n 2) 328; L van den Herik, ‘An Inquiry into the Role of Commissions of Inquiry in International Law: Navigating the Tensions between Fact-Finding and Application of International Law’ (2014) 13 Chinese Journal of International Law 507, 510–11; L van den Herik, ‘Accountability Through Fact-Finding: Appraising Inquiry in the Context of Srebrenica’ (2015) 62 Netherlands International Law Review 295, 297. 39 Jacobs and Harwood (n 2) 328; Although it can be argued this was not entirely the case, But at least questions concerning accountability were left outside of the scope of these inquiries, see van den Herik, ibid 536–37. 40 van den Herik (n 38) 519. 41 van den Herik and Harwood (n 2) 234–35. 42 van den Herik (n 38) 526; van den Herik and Harwood (n 2) 237. 43 Frederica D’Alessandra, ‘The Accountability Turn in Third Wave Human Rights Fact-Finding’ (2017) 33(84) Utrecht Journal of International and European Law 59, 61. 44 ibid 62. 45 van den Herik and Harwood (n 2) 237–38. 46 Frulli (n 3) 1332; van den Herik, ‘Accountability Through Fact-Finding’ (n 28) 297. 47 P Alston, ‘The Darfur Commission as a Model for Future Responses to Crisis Situations’ (2005) 3 Journal of International Criminal Justice 600, 601; Jacobs and Harwood (n 2) 328–29; D’Alessandra (n 43) 63. 48 UNSC Resolution 808, 22 February 1993, S/Res/808; Frulli (n 3) 1326–27. 49 D’Alessandra (n 43) 65, see for example the mandates of the UN Commissions on Timor-Leste, (Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, 2 October 2006, ¶ 4); Darfur (UNSC Resolution 1564 (2004) 18 September 2004, S/RES/1564 (2004), ¶ 12); Guinea (Letter dated 28 October 2009 from the Secretary-General addressed to the President of the Security Council, S/2009/556) Libya, Syria (Human Rights Council Resolution s-15/1 A/HRC/RES/S-15/1, 3 March 2011, ¶ 11; Human Rights Council Resolution S-19/1 4 June 2012, A/HRC/RES/S-19/1, ¶ 8), the DRPK (Human Rights Council Resolution 22/13, 9 April 2013, A/HRC/RES/22/13, ¶5), Burundi (Human Rights Council Resolution S-24/1. 2 December 2015, A/HRC/RES/S-24/1, ¶ 17(c)). 50 Jacobs and Harwoord (n 2) 332; see for example Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, 2 October 2006, ¶¶ 11–12; Human Rights Council, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, 22 September 2009, A/HRC/12/48 ¶ 286. 51 D’Alessandra (n 43) 67. 52 van den Herik, ‘An Inquiry into the Role of Commissions of Inquiry in International Law’ (n 38) 531; van den Herik and Harwood (n 2) 239. 53 D’Alessandra (n 43) 71. 54 Jacobs and Harwood (n 2) 335–36; see for example: Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005, ¶ 14; Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/28/6, ¶¶ 98–100. 55 Jacob and Harwood 338–99, See the sections on methodology in current reports of fact-finding mechanisms, such as for example: Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, UNDoc: A/HRC/39/CRP.2 ¶¶ 8–32 (hereafter: Report on Myanmar 2018); Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory ¶¶ 15–36. 56 This can be seen for example in: Rapport final détaillé de la Commission d’enquête sur le Burundi, UNDoc: A/HRC/36/CRP.1, ¶¶ 32–33; Report on Myanmar 2018, ¶¶ 30–32. 57 Jacobs and Harwood (n 2) 346–47. 58 Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka 31 March 2011 pp 2–3, 73–77; van den Herik and Harwood (n 2) 239. 59 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, ¶¶ 5–6; UN Human Rights Council Resolution S-19/1, The deteriorating situation of human rights in the Syrian Arab Republic and the recent killings in El-Houleh, UN Doc A/HRC/Res/S-19/1, ¶¶ 1–8; Human Rights Council Resolution 22/13 Situation of human rights in the Democratic People’s Republic of Korea, UN Doc A/HRC/RES/22/13, ¶¶ 1–5; van den Herik, ‘An Inquiry into the Role of Commissions of Inquiry in International Law’ (n 38) 531–32. 60 See for example the mandates of the UN Commissions on Timor-Leste, (Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, 2 October 2006, ¶ 4); Darfur (UNSC Resolution 1564 (2004) 18 September 2004, S/RES/1564 (2004), ¶ 12); Guinea (Letter dated 28 October 2009 from the Secretary-General addressed to the President of the Security Council, S/2009/556) Syria (Human Rights Council Resolution s-15/1 A/HRC/RES/S-15/1, 3 March 2011, ¶ 11; Human Rights Council Resolution S-19/1 4 June 2012, A/HRC/RES/S-19/1, ¶ 8), the DRPK (Human Rights Council Resolution 22/13, 9 April 2013, A/HRC/RES/22/13, ¶5), Burundi (Human Rights Council Resolution S-24/1, 2 December 2015, A/HRC/RES/S-24/1, ¶ 17(c)), the 2018 border protests in Palestine (Human Rights Council Resolution S-28/1, 22 May 2018, A/HRC/RES/S-28/1, ¶ 5). 61 C Stahn, ‘The Geometry of Transitional Justice: Choices of Institutional Design’ (2005) 18 Leiden Journal of International Law 425, 462–63; Kleffner (n 18) 269; K Ambos, The Colombian Peace Process and the Principle of Complementarity of the International Criminal Court: An Inductive, Situation-based Approach (Springer 2010) 61–62; Novak (n 7) 106–07; Schabas (n 8) 454–55. 62 M Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ (1999) 32 (2) Cornell International Law Journal 507, 524–25; Ambos, ibid 61–62; Novak (n 7) 55, 106–07. 63 Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, 23 August 2004, UN Doc: S/2004/616 ¶ 50 or at the very least some are seen as a form of fact-finding Stahn (n 61) 431–35; L Daqun, ‘Quality Control In Truth and Reconciliation Processes’ in Bergsmo (n 2) 140–43. 64 K Ambos, ‘The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC’ in K Ambos and others (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (Springer-Verlag Berlin Heidelberg 2009) 79–80. 65 Report of the Secretary-General on the Sudan, 14 June 2006, UNDoc S/PV.5459, 3; Schabas (n 8) 454–55. 66 Schabas (n 8) 455. 67 Kleffner (n 18) 269–72; Ambos (n 61) 61–62, but see Stahn (n 54) 711-716. 68 Ambos (n 64) 75. 69 ibid 76; Ambos (n 61) 61–62. 70 El Zeidy (n 14) 176–77; Tanis and Others v Turkey App no 65899/01 (ECtHR 02 August 2005) ¶ 202. 71 Velasquez Rodriguez v Honduras, Judgment of 29/07/1988, Inter-Am Ct H.R. (Ser. C) No 4 (1988), ¶ 180. 72 Ambos (n 61) 62. 73 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the admissibility of the case against Abdullah Al-Senussi, Pre-Trial Chamber I, Case No ICC-01/11-01/11, 11 October 2013, ¶ 66; Prosecutor v Simone Gbogbo, Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo Pre-Trial Chamber I, Case No ICC-02/11-01/12 11 December 2014, ¶ 30. 74 B Batros, ‘Jurisdiction and Admissibility’ in F Guariglia and others (eds), The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence (CUP 2018) 68. 75 Prosecutor v Simone Gbogbo, Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo Pre-Trial Chamber I, Case No ICC-02/11-01/12 11 December 2014, ¶ 49, Prosecutor v Simone Gbagbo, Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’ Appeals Chamber, Case No ICC-02/11-01/12, 27 Mayb 2015 ¶ 71. 76 UN SC, ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General’, UN Doc S/2005/60 (25 January 2005), ¶ 524. 77 This had been stated already in the Darfur Report at an earlier instance (UN SC, ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General’, UN Doc S/2005/60 (25 January 2005), ¶ 15). But examples can also be found in other commissions, see for example: Detailed findings of the commission of inquiry on human rights in Eritrea, A/HRC/32/CRP.1, ¶¶ 332–32; Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, 2 October 2006, ¶ 12. 78 Stahn and Jacobs (n 1) 1–2, LS Sunga, ‘Can International Criminal Investigators and Prosecutors Afford to Ignore Information from United Nations Human Rights Sources?’ in Bergsmo (n 2) 401, Frulli (n 3) 1326. 79 Some of the reports even make special notion of the fact that the information they use as the basis for their reports is distinguishable from evidence that could be used in criminal proceedings, see for example: Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste, 2 October 2006, ¶ 12, Human Rights Council, Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, A/HRC/17/44, ¶ 237. 80 LS Sunga, ‘How can UN human Rights special procedures sharpen ICC fact-finding?’ (2011) 15(2) The International Journal of Human Rights 187, 188; Talsma (n 2) 422–23. An example here can be seen in the evidence recorded by the Commission of Experts for the former Yugoslavia, David Re, ‘Fact-Finding in the Former Yugoslavia: What the Courts Did’ in Bergsmo (n 2) 297–98; Sunga (n 78) 395; Stahn and Jacob (n 1) 9. 81 Sunga (n 80) 188; Stahn and Jacobs (n 1)268–69; Frulli (n 3) 1337. 82 S Wilkinson, ‘Finding the Facts’ Standards of Proof and Information Handling in Monitoring, Reporting and Fact-Finding Missions’ (2014) HPCR Working Paper 9-11; Sunga (n 78) 411–12. 83 Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, UNDoc: A/HRC/29/CRP.4, ¶ 10. 84 Report of the United Nations High Commissioner for Human Rights containing the findings of the Group of Independent Eminent International and Regional Experts and a summary of technical assistance provided by the Office of the High Commissioner to the National Commission of Inquiry, UNDoc: A/HRC/39/43 ¶ 109. 85 Commissions of Inquiry and Fact-Finding Missions on International Human Rights And Humanitarian Law: Guidance and Practice (OHCHR 2015) 62. 86 G Palmer, ‘Reform of UN Inquiries’ in S Linton, G Simpson and W Schabas (eds), For the Sake of Future Generations: Essays on International Law , Crime, Justice in Honour of Roger S. Clark (Brill Nijhoff 2015) 597–616, at 608–09. 87 Recent examples of this can be found in the reports on the Democratic People’s Republic of Korea (Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea UNDoc: A/HRC/25/63, ¶¶ 10–12), the 2018 protests in Palestine (Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory UNDoc: A/HRC/40/CRP.2 ¶ 30) and Syria (Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UNDoc: A/HRC/42/51, ¶ 4). 88 Report of the detailed findings of the Commission of Inquiry on Human Rights in Eritrea, UNDoc: A/HRC/29/CRP.1 ¶ 14; Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory UNDoc: A/HRC/40/CRP.2 ¶¶ 30–33. 89 As can perhaps be best seen in the context of the Goldstone-report, see: R Goldstone, ‘Quality Control in International Fact-Finding Outside Criminal Justice for Core International Crimes’ in Bergsmo (n 2) 35–53, at 48–50. 90 Palmer (n 86) 610–11; Krebs (n 2) 344–45. 91 WU Xiaodan, ‘Quality Control and the Selection of Members of International Fact-Finding Mandates’ in Bergsmo (n 2) 209–10. 92 ibid 208–09. 93 ibid 202. 94 Commission on Human Rights, Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher, Addendum Updated Set of principles for the protection and promotion of human rights through action to combat impunity, UNDoc: E/CN.4/2005/102/Add.1. 95 A Bisset, ‘Principle 8 Definition of a Commission’s Terms of Reference’ in F Haldeman and T Unger, The United Nations Principles to Combat Impunity: A Commentary (OUP 2018). 96 ibid; I Nuzov and M Freeman, ‘Principle 7 Guarantees of Independence, Impartiality, and Competence’ in Haldeman and Unger, ibid. 97 A Biset, ‘Principle 9 Guarantees for Persons Implicated’ in Haldeman and Unger (n 95). 98 Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law (United Nations 2015) 14, 106. 99 Resolution adopted by the General Assembly on 21 December 2016, UNGA Res 71/248. 100 A Whiting, ‘An Investigation Mechanism for Syria: The General Assembly Steps into the Breach’ (2017) 15 Journal of International Criminal Justice 231, 232; C Wenaweser and J Cockayne, ‘Justice for Syria? The International, Impartial and Independent Mechanism and the Emergence of the UN General Assembly in the Realm of International Criminal Justice’ (2017) 15 Journal of International Criminal Justice 211, 215. 101 Report of the Secretary-General, Implementation of the resolution establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, UNDoc: A/71/755, 3–4. 102 A/71/755 (n 102), 5; Whiting (n 100) 233; Wenaweser and Cockayne (n 100) 216. 103 A/RES/71/248, ¶ 4; The Secretary-General, Report of the Secretary General on the Implementation of the resolution establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, UN Doc. A/71/755, 19 January 2017, at ¶¶ 12–22. 104 HRC Resolution 39/2. 105 Ruling at DRC OTP P 0317 (Resumed) open session on 7 December 2010, 24 lines 8–18. 106 Prosecutor v Lubanga Dyilo, Decision on the Prosecutor’s request for a warrant of arrest, art 58, Case No ICC-01/04-01/06-8-Corr, PTC I, 24 February 2006, ¶ 38; Nsereko (n 4) 444; Knoops (n 5) 88; Schabas (n 8) 452. 107 Kleffner (n 18) 107–08; Novak (n 7) 103; D Makaza, ‘African Supranational Criminal Jurisdiction: One Step Towards Ending Impunity or Two Steps Backwards for International Criminal Justice?’ in N Hayashi and Cecilia M. Bailliet, The Legitimacy of International Criminal Tribunals (CUP 2017) 275–80. 108 Ambos (n 61) 61. 109 Office of the Prosecutor, Paper on some policy issues before the Office of the Prosecutor, September 2003, 5. 110 Katanga: Appeal on Admissibility (n 14) ¶ 75. 111 Batros (n 25) 352. 112 Katanga: Appeal on Admissibility (n 14) ¶ 76. 113 ibid ¶ 78. 114 C Stahn, ‘The Geometry of Transitional Justice: Choices of Institutional Design’ (2005) 18 Leiden Journal of International Law 425, 429–30. 115 Schabas (n 8) 447. 116 Wenaweser and Cockayne (n 100) 224–25; I Elliott, ‘A Meaningful Step towards Accountability? A View from the Field on the United Nations International, Impartial and Independent Mechanism for Syria’ (2017) 15 Journal of International Criminal Justice 239, 249. 117 Sunga (n 78) 361, for a detailed view on the manner in which fact-finding reports were used in the ICTY, see Re (n 80). But it must be said that the manner in which fact-finding missions conduct their reporting nowadays has been changed, but as of yet this does not appear to have changed the perception of the ICC. 118 Re (n 80) 280. 119 V den Herik, ‘Accountability Through Fact-Finding’ (n 28) 309–10; D’Alessandra (n 43) 61. © Oxford University Press 2019; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Could International Fact-Finding Missions Possibly Render a Case Inadmissible for the ICC? Remarks on the Ongoing Attempts to Include International Criminal Law in Fact-finding
JF - Journal of Conflict and Security Law
DO - 10.1093/jcsl/krz028
DA - 2019-12-01
UR - https://www.deepdyve.com/lp/oxford-university-press/could-international-fact-finding-missions-possibly-render-a-case-0XUGNEcn10
SP - 593
VL - 24
IS - 3
DP - DeepDyve
ER -