UN HUMAN RIGHTS FACT-FINDING MISSIONS: REAPING THE BENEFITS AND ADDRESSING CHALLENGES OF COMMISSIONS OF INQUIRY

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1 UN HUMAN RIGHTS FACT-FINDING MISSIONS: REAPING THE BENEFITS AND ADDRESSING CHALLENGES OF COMMISSIONS OF INQUIRY Chenwi Denis Fuh 1 INTRODUCTION Fact-finding is a fundamental part of any human rights advocacy initiative be it by a nongovernmental organisation, inter-governmental body or international organisation. Fact-finding forms a fundamental part of human rights advocacy. The United Nations (UN) bodies have established a number of fact-finding missions throughout its history to investigate allegations of gross human rights violations such as in Libya, Darfur, Cote d Ivoire, the Democratic People s Republic of Korea (DPRK), Eritrea, and Syria with varying degrees of success. We shall examine the positive contributions of such fact-finding missions especially UN commissions of inquiry, some challenges they have faced and give some proposals for improvement. It should be noted that the primary responsibility lies with the state to investigate and respond to human rights violations within its territory. It is when the state is unable or unwilling to effectively carry out this responsibility in the face of grave systematic and widespread human rights violations that an international fact-finding mission is usually set up. FUNCTIONS OF FACT-FINDING MISSIONS Alston and Goodman point out the general functions of fact-finding missions, stating that they involve (1)Seeking to ascertain the facts about alleged human rights abuses, through on-site visits, (2) determining state responsibility and perhaps also individual responsibility for violations of human rights, (3) making recommendations as to reforms and reparations. 2 1 Human Rights Adviser, Positive Peace Group 2 Philip Alston and Ryan Goodman, International Human Rights, Oxford: OUP, 4th Edition, 2012, p P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

2 Such fact-finding missions have some solid benefits in relation to investigating human rights violations. The ECS working group on Fact Finding Mission guidelines states that fact-finding missions help in providing Access to Sources and/or information that is difficult to access from abroad, direct access to Primary Sources and unfiltered information 3. As the Office of the High Commissioner on Human Rights mentions, these investigative bodies are increasingly being used to respond to situations of serious violations of international humanitarian law and international human rights law, whether protracted or resulting from sudden events, and to promote accountability for such violations and counter impunity. 4 COMMISSIONS OF INQUIRY A notable form of fact-finding mission used by the UN has been Commissions of Inquiry (COI). UN commissions have a legal basis usually established following a UN Resolution. The Security Council, the General Assembly, the Human Rights Council, the Secretary-General, and the High Commissioner for Human Rights could establish such bodies. Generally, there has to be a sense of external pressure for such a commission to be put in place. The commissions, usually led by renowned academics, judges and lawyers are guided by principles which meet international legal standards in relation to independence, impartiality, thoroughness, effectiveness and promptness. These lend weight and usually a positive view. An example can be seen in the Commission of Inquiry on human rights in the DPRK which was led by renowned former Australian retired judge Michael Kirby and former Indonesian Prosecutor General, Marzuki Darusman. Other positive aspects include the fact that such commissions enable the gathering of more detailed and useful facts and information, a sense of international accountability, greater voice and avenues for victims. As Human Rights Watch states, a COI is usually led by a group of independent eminent persons appointed by the UN with a mandate to establish the facts and make recommendations on how to respond to the violations and whose publicly published 3 EU common guidelines on (Joint) Fact Finding Missions: a practical tool to assist member states in organizing (joint) Fact Finding Missions, ECS working group on Fact Finding Mission guidelines, November 2010, p. 6 4 International Commissions of Inquiry, Fact-Finding missions and other Investigations, available at (Last accessed on 23/06/2016) 2 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

3 findings help shed light on the truth, give voice to victims and help push for accountability for violations. 5 Such useful information and facts can be used for litigation, documentation, information, prevention leading to justice, remedies and solutions. Similarly, a commission of inquiry could be of help in fighting against impunity and support to the government in question. It has been pointed out that COIs can contribute greatly in fighting impunity, give an alternative for independent investigation :where criminal justice institutions are seen to be biased or incompetent as well as provide informed advice to the Government on the institutional reforms necessary to prevent similar incidents from occurring in the future. 6 CHALLENGES OF COMMISSIONS OF INQUIRY Despite the above positive aspects of fact-finding missions in general and commissions of inquiry in particular, there could be serious challenges leading at times to failure or to a worsening of the situation. First, there could be reluctance and a (violent) backlash from the target state. Alston and Goodman mention that faced with the prospect of an international inquiry, governments will often be hostile or at least reluctant. 7 Many reactions range from denial, attempts to discredit the commissions and their reports, to outright counter-attacks. This was the case following the publication the report on the fact-finding mission on the Gaza Conflict (2009) ( Goldstone Report ) after which there was a very strong reaction and discrediting especially from Israel, leading the head of the commission to retract afterwards. Another notable recent example is North Korea whose government has strongly condemned the report of the Commission of Inquiry on the Human Rights Situation in the DPRK. The Eritrean government exhibited a negative response following the publication of the findings by the UN Commission of Inquiry on Human Rights in Eritrea on 8 June The Commission, headed by Mike Smith, found that Crimes against humanity have been committed in a 5 Q & A on a United Nations COMMISSION of INQUIRY on North Korea, Human Rights Watch available at %20UN%20COI%20for%20Activists_1.pdf (Last accessed on 23/06/2016) 6 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, UN Doc. A/HRC/8/3 (2 may 2008), p. 6, par Supra, note 1, p P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

4 widespread and systematic manner in Eritrean detention facilities, military training camps and other locations across the country over the past 25 years. 8 The Commission reported receiving written submissions during its second investigation most of which were letters and petitions criticizing the first report by the Commission though without adding any great information in relation to investigations by the Commission. The findings of the Commission were severely condemned by Yemane Meskel, Eritrea s Minister of Information, who lashed out through twitter on 8 June 2016 that the COI admits it is not a judicial body. Its wild accusations do not meet fundamental standards of accuracy, objectivity, neutrality & legality adding that For a 3-person panel to overstep its mandate, to arrogate to itself draconian powers (& indict a proud people) is simply untenable/ unheard of. 9 This negative response is supported in an Op-ed by Fikrejesus Amahazion, in which he describes the COI s findings as a paternalistic imposition and an adoption of an unproductive approach. He argues that the best way to address these is not through confrontational, adversarial approaches, sensationalist allegations and imprecations, paternalistic preaching, or meting out unjust punishments but rather through constructive engagement, tangible support, cooperation, and dialogue. 10 Rejection and even opposition is a common reaction of many governments to the work and reports of commissions of inquiry. As Cohen (1996) points out 8 UN Inquiry Finds crimes Against Humanity in Eritrea, available at (last accessed on 23/06/2016) 9 Eritrea Commits Crimes against Humanity, UN Says, Eritrea 9 June 2016, available at also see tweets on and 10 Eritrea And Human Rights: Notes On Commission Of Inquiry OpEd, Dr. Fikrejesus Amahazion, available at (last accessed on 12/06/2016) 4 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

5 The most common [approach] is to attack the reliability, objectivity, and credibility of the observer. Victims are lying and cannot be believed because they have a political interest in discrediting the government. Witnesses are untrustworthy or drawn from the political opposition. Journalists and human rights organizations are selective, biased, working from a hidden political agenda or else naïve, gullible, and easily manipulated. If the source of the evidence can be shown to be suspect in any of these ways, then the violations obviously did not take place or are being exaggerated. 11 However, it should be noted that such reports do not necessarily bring about such reactions. For example, the Democratic Republic of Congo (DRC) Government described the report on the mapping exercise of the most severe human rights and humanitarian law violations in the DRC from as detailed and credible. The reaction by the Rwandan Government to the report of the commission of inquiry on the 1994 genocide was generally strong but it targeted especially specific sections. 12 Another challenge concerns witness protection. It has been quite challenging to guarantee the security of witnesses who give information to or testify in commissions of inquiry. There have been cases of reprisals, threats, attacks and even murders of people who provided information or assistance to commissions of inquiry or reprisals on their families. For example, the in the DPRK COI report it was stated that The most significant investigative challenge faced by the commission was the fear of reprisals by witnesses. 13 Furthermore, some commissions of inquiry could take very long to carry out investigations leading to a waste of time and resources. For example Independent International Commission of Inquiry on the Syrian Arab Republic was established in 2011 following the uprising and is still ongoing as well as the armed conflict. Commissions of inquiry also potentially stifle other initiatives and give the false sense that something is being done by the target state and even other actors. In this light, it could rather play into the hands of the target state who could use it to delay or deny action or justice. It 11 Stanley Cohen, Government Responses to Human Rights Reports: Claims, Denials and Counterclaims, 18 Hum. Rts. Q. 517 (1996), quoted in Philip Alston and Ryan Goodman, International Human Rights, Oxford: OUP, 4th Edition, 2012, p Supra, note 1, p Report of the Commission of Inquiry on Human Rights in the Democratic People s Republic of Korea, A/HRC/25/63, 7 February 2014, par P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

6 provides a sense of (false) self-satisfaction to the international community especially in cases where there was failure to act in time to prevent atrocities. A good example is the Rwandan genocide and the subsequent UN commission of inquiry. International commissions of inquiry could also hinder national reconciliation efforts, causing resentment and splits between people, groups or whole communities and countries. The Sri Lankan Government advanced this argument amongst others to challenge the idea of putting in place a UN commission of inquiry for human rights and international humanitarian law violations during the armed conflict in the country. COIs could also face challenges in relation to the mandate under which they operate. Generally, COIs functioning with Security Council mandates established under Chapter VII are more likely to gain access and benefit from State cooperation as compared to those established by Human Rights Council. Another challenge faced by COIs is funding. The increasing use of COIs and other fact-finding missions indicates a greater need for their funding. The amount of funding plays an important role in determining the depth and nature of the work that the COI will carry out and this plays on the quality of its work. It is very necessary for COIs to benefit from sufficient funding. Usually states are encouraged to fund such bodies by contributing to the OHCHR. However, some argue that financing through UN regular budget provides a greater guarantee for impartiality and especially perceptions and future arguments in relation to the objectivity of the findings. COIs may also face problems in relation to the standards of proof. It is challenging to ensure that there is a balance between flexibility and credibility. The chosen standard(s) of proof should be strong enough to withstand any degree of scrutiny or criticism. The standard of proof used should be clearly indicated at the beginning. It is usually better to choose a layered approach with various levels of standards applied. The time available should also be taken into consideration as this affects the level of the standard of proof to be used. The issues and target of the investigation should also inform the standard of proof used. 6 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

7 CASE STUDY OF A COMMISSION OF INQUIRY Let us now briefly examine a specific UN Commission of inquiry, the commission of inquiry on human rights in the Democratic People s Republic of Korea, to see the positive aspects it has contributed as well as the challenges faced so far. This commission of inquiry was established by Human Rights Council Resolution 22/13, adopted on March 21, 2013 with the mandate to investigate the systematic, widespread and grave violations of human rights in the state with a view to ensuring full accountability, in particular, for violations that may amount to crimes against humanity. 14 The commission was also mandated to further investigate and document human rights violations, collect and document victim and perpetrator accounts and ensure accountability. 15 It investigated widespread and grave human rights violations under nine specific as well as related areas. 16 It should be noted that the Commission members appointed by the HRC consisted of Michael Kirby, Sonja Biserko and Marzuki Darusman (the UN Special Rapporteur on the Situation of Human Rights in the DPRK).The commission investigated both territorial and extraterritorial acts involving the state. The DPRK government totally rejected the commission and refused to collaborate with it or allow it access to its territory. The commission therefore obtained first-hand information via public hearings in Seoul, Tokyo, London, and Washington DC. Written submissions were also requested and received from UN member states and relevant stakeholder. The commission carried out official visits to the some countries. The commission requested from the Chinese Government permission to visit China to conduct inquiries in parts of China bordering the DPRK but this was not successful. The commission also collaborated with UN entities, NGOs and other humanitarian actors. The major challenges faced by the commission were inability to access the DPRK as well as fear of reprisals by witnesses or potential witnesses. Following the completion of the inquiry the commission published its report publicly in February 2014, finding principally that Systematic, widespread and gross human rights violations have been and are being committed by the Democratic People s Republic of 14 ibid, par ibid, par ibid, par. 3 7 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

8 Korea. In many instances, the violations found entailed crimes against humanity based on state policies. 17 During the press conference in Geneva to release the report, Michael Kirby, the commission s chair, stated that there existed many parallels between the evidence he had heard and crimes committed by the Nazis and their allies in the Second World War. 18 He noted that "The gravity, scale and nature of these violations reveal a state that does not have any parallel in the contemporary world." 19 This very comprehensive and comprehensible report was described as one of the most damning by the UN. Following the publication of the report there was a bitter backlash from the DPRK government, which rejected the report. Earlier in September 2013, a North Korean diplomat Kim Yong Ho had denied the allegations, telling the U.N. Human Rights Council the evidence had been "fabricated" by "forces hostile" to his country, singling out the United States, Japan and the European Union. 20 In relation to whether such a report would make a difference in North Korea, especially immediately Kirby indicated that Bearing witness, collecting stories, recording them and putting them there for future use can sometimes bear fruit a little later. 21 The report raised immediate international condemnation, though China stated that it would block any attempt to refer the DPRK leadership to the ICC for allegations of crimes against humanity. 22 However, some were rather pessimistic and sceptical about it. For example, one article noted that Jim Hoare, a former British envoy who served in Pyongyang, said high-profile diplomatic overtures will do little to persuade Beijing or compel Pyongyang to free political prisoners. 23 On the other 17 Supra note 12, par North Korea Human Rights Abuses Resemble Those of the Nazis, Says UN Inquiry, by Peter Walker, The Guardian, 18 February UN reports North Korea torture camps, calls for criminal investigation, Al Jazeera, February 17, 2014 Available at 20 ibid 21 Bold UN rebuke to North Korea s criminal regime: Editorial, The Star, February available at ml 22 Supra, note 17 23Will N Korea Abuses Lead to War Crimes Court? Al Jazeera, 18 March 2014 available at html (last accessed on 23/06/2016) 8 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

9 hand, Julie de Rivero of Human Rights Watch argued that "We cannot go on pretending that North Korea cannot be acted upon. This is the first step in a process that will see perpetrators brought to justice." 24 Human Rights Watch in campaigning for the creation of this commission noted that with the advantage of additional resources and heightened political commitment, the COI would possibly develop greater details on the specific nature of the abuses, the fate of victims, and the need for accountability, and this would bring the additional attention and commitment that is commensurate with the seriousness of the situation, bolstering the efforts of the Special Rapporteur 25 Michael Kirby is famously quoted now for saying At the end of the Second World War so many people said 'if only we had known... if only we had known the wrongs that were done in the countries of the hostile forces Well, now the international community does know. There will be no excusing of failure of action because we didn't know. Too many times in this building there are reports and no action. Well this is a time for action. 26 Therefore, the effectiveness of such a commission of inquiry and its report in leading to concrete action apart from raising awareness depends on the reaction of the international community. In the case of DPRK, it is still early to judge though the report has had a very huge impact in raising awareness internationally and bringing the issue to the forefront. PROPOSALS FOR IMPROVEMENT OF COMMISSIONS OF INQUIRY Commissions of Inquiry could be improved through a number of ways. First, the number of countries covered could be widened and should take into account current and urgent situations. Furthermore, a thematic approach could be used for certain violations to counter the backlash country-specific mandates usually provoke. In addition, a code of conduct for commission 24 ibid 25 Supra, note 4 26 World Must Act on North Korea Rights Abuse, Says UN Repor, BBC, 18 February 2014 available at (Last accessed on 23/06/2016) 9 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5

10 members should be instituted to ensure the standard principles and guidelines are followed. Where relevant and with compelling evidence, commissions could also be mandated to attribute specific individual criminal accountability. More should also be done to ensure victim/witness protection and to ensure state collaboration. In addition, more efforts should be put in place to prevent the politicisation of commissions of inquiry. Funding sources should be increased especially with funding from the main UN budget most preferable and with increased contribution of member states. Furthermore, the methodology and standard of proof should be clearly selected and indicated at the beginning so as to ensure the quality, objectivity and impartiality of the investigations and the findings. CONCLUSION Fact-finding missions and COIs in particular play an increasingly important role in human rights investigation and advocacy. They are very useful in the process of ensuring that states fulfil their responsibilities to respect, protect, and fulfil. COIs have a number of advantages and have registered some positive effects. However, they face and could face numerous challenges, which may water down the successes if not properly addressed. If the aforementioned and other measures are put in place, fact-finding missions and commissions of inquiry especially of the UN will become the jewel that they are or are supposed to be and their work will be made more effective and their impact stronger. 10 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 5