This edited collection on Commissions of Inquiry (CoIs) published by Hart is the product of a collaborative research project within the International Law and Human Rights Unit at the University of Liverpool and a workshop which it held in January 2015. The book's stated aim is to contribute to debates regarding CoIs within the legal realm, and given the authors’ backgrounds, and the increasing focus of CoIs on investigating breaches of international human rights and humanitarian law, it should not be surprising that the volume leans heavily towards discussing the relationships between CoIs and international law and international institutions. In its Foreword, the book receives an authoritative nod of approval from Michael Kirby AC CMG, who laments that it did not exist when the UN Commission of Inquiry on Human Rights in the Democratic People's Republic of North Korea, which he chaired, was preparing for its work. The collection offers a variety of perspectives on the work of a wide spectrum of CoIs: from early examples such as the Maine and Dogger Bank inquiries at the turn of the twentieth century, to more recent domestic CoIs (such as the 2010 Turkel Commission), regional CoIs (such as the 2008/9 Independent Fact Finding Mission on the Conflict in Georgia), and international CoIs (such as the 1993 Commission of Experts on the former Yugoslavia).
The book is divided into four sections and comprises 13 chapters. The first section, ‘The Diversity of Contemporary Commissions of Inquiry’, opens with Butchard and Henderson setting out the range of primary functions that have been, and are, pursued by the types of CoIs that are examined in the following chapters. They describe the broadening functional typology of CoIs, which can include one or more of the purposes of fact-finding, arbitration, informing, public accountability, monitoring, alerting and recommending. In particular, they note the increasingly arbitration-like character of international CoIs. The contributions that follow address discrete concerns that arise in the context of international, regional and domestic CoIs respectively. Farrell and Murphy describe the different powers and practices of UN institutions when establishing CoIs, and consider accusations of politicization that have been levelled against the Human Rights Council in this regard. Grace examines the fact-finding missions set up by the European Union and the African Union to investigate the conflicts in Georgia and South Sudan respectively, and discusses the need to improve and standardize the ‘methodological soundness’ of CoIs without strangling innovation. Samuel and Green consider the normative authority of domestic CoIs, arguing that the value of CoIs engaging with international law is dependent upon a normative authority that must derive from a context-specific ‘consensus of political, legal and moral considerations’.
In Section 2, three chapters by Orakhelashvili, Schwöbel-Patel and Mariniello offer a more critical analysis of the tendencies described by Butchard and Henderson in Chapter 1, whilst focussing on the relationship between CoIs and international courts and tribunals. Orakhelashvili, for example, examines the controversial way in which CoIs often depart from the practices of traditional dispute-settlement bodies when addressing considerations such as the principle of consent in international adjudication, the relationship between fact-finding and law-determination, and the standard of proof applied to findings of wrongdoing. He argues that CoI practices must be considered in the light of both the non-binding nature of CoI reports and the unwillingness of States ‘to create more enhanced mechanisms of international accountability’.
The third section, focusses on the engagement of CoIs with substantive international law. Odello takes a critical look at the way in which CoIs have construed the relationship between international human rights law, international humanitarian law and international criminal law. Darcy examines how CoIs operating at watershed moments in the twentieth century have influenced the development of international law, whereas Buchan considers the potential threat they pose to the unity and coherence of the international legal order.
Section 4 turns to procedural questions and the working methods of CoIs. Boutruche discusses the oft made accusations of selectivity and bias surrounding their establishment and work. He systematically sets out the main pitfalls that CoIs invariably encounter given their ad hoc character and the nature of their work. Bisset's chapter addresses procedural fairness, another area where individual CoIs have faced considerable criticism. She charts diverging practice relating to the standard of proof employed, the corroboration of evidence, the rights and procedural protections afforded to those accused of wrongdoing, and the protections afforded to victims and witnesses. In particular, she notes that international CoIs could potentially learn from truth commissions, where vulnerability to domestic legal challenge seems to encourage a more conscientious consideration of these issues. Finally, Heaven depicts a ‘community of fact-finding practice’ in this area that has the tools necessary to meet what she argues are the potential challenges posed by the technocratization and de-politicization of CoIs.
Overall this is an important collection of perspectives on a wide range of issues concerning CoIs, and the book is undoubtedly a valuable contribution to the literature in the field. It critically examines and contextualizes their normative function, and their relationship to other institutions, to international law, and to international politics. Since the book addresses a very loose category of institution, it is understandable that at times it struggles slightly with cohesion. Some areas of interest receive considerable attention, whilst others are touched on in somewhat more outlying chapters. The grouping of chapters into sections does not always succeed in achieving internal cohesion and the links between some chapters within sections feel rather tenuous. Overall coherence also suffers slightly from some descriptive repetition, particularly when the authors are introducing and framing their topic. Of course, this is a common problem in many edited collections.
The contributions are all supported by interesting and well-argued historical, legal and political insights, and cover a large amount of ground in a subject area that is largely characterized by a lack of homogeneity. Nevertheless, while Bisset's incisive analysis of CoIs and procedural fairness does mention truth commissions, it seems strange that they are not given more attention in the volume as a whole. They certainly appear to meet the loose definition of CoIs adopted throughout the book. Given that a common theme is that the mandates and practices of contemporary CoIs increasingly focus upon the pursuit of criminal accountability for breaches of human rights and humanitarian law, this feels like a significant omission. The mandates and practices of historical and contemporary truth commissions present some (at least domestic) challenge to there being a universal trend towards the single-minded pursuit of criminal liability in these areas.
In addition to Bisset's insightful analysis of the troubled relationship between CoIs and basic principles of procedural fairness, the contributions by Farrell and Murphy, Boutruche, Mariniello and Schöbel-Patel all merit special mention. Farrell and Murphy combine a well-written and concise overview of the CoI mandating powers and practices of United Nations bodies with an interesting analysis of the frequent criticisms directed at Human Rights Council mandated CoIs. Noting that there is a comparative lack of criticism directed at those mandated by the UN Security Council, they argue that this criticism forms part of a hegemonic ‘legitimacy critique’ that seeks to preserve ‘the ideas, concerns and hierarchies of the international order or status quo’. Boutruche's chapter is also a thoughtful examination of the selectivity/subjectivity tensions that permeate the work of CoIs as a result of their ad hoc nature, the considerable extent of their operational discretion and the pressures of time and resources. Mariniello's contribution includes a fascinating exploration of the impact CoIs appear to have on proceedings before the ICC. His analysis suggests that they can have significant persuasive force in Prosecutorial decisions and Chambers findings, but that this declines across pre-trial stages as the standard of proof rises. Finally, Schöbel-Patel's chapter is a particularly scathing critique of the ‘judicialisation’ and ‘criminalisation’ of CoIs, and the fact that criticism tends to focus on how CoIs interpret and apply international law, and issues of procedural fairness. She argues that this contributes to the wider ‘monopolising effect of international criminal law’, and misses opportunities to investigate and expose the key socio-economic causes of conflict. One can take issue with elements of the chapter, not least the rather one-sided characterization of the motives behind the pursuit of criminal accountability on the international plane—something which arguably risks failing to recognize the voices of primary and secondary victims. Nevertheless, it is an important and persuasive challenge, which is rarely made, to the ideological direction being taken by international CoIs and to the loss of transformative opportunities that this can entail.
