The Roles and Functions of Atrocity-Related United Nations Commissions of Inquiry in the International Legal Order

Navigating between Principle and Pragmatism

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In The Roles and Functions of Atrocity-Related United Nations Commissions of Inquiry in the International Legal Order, Catherine Harwood explores the turn to international law in atrocity-related United Nations commissions of inquiry and their navigation of considerations of principle (the legal) and pragmatism (the political), to discern their identity in the international legal order.
The book traces the inquiry process from establishment and interpretation of the mandate to legal analysis, production of findings and recommendations. The research finds that the turn to international law fundamentally shapes the roles and functions of UN atrocity inquiries. Inquiries continuously navigate between realms of law and politics, with the equilibrium shifting in different moments and contexts.
Copyright Year:
2020
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978-90-04-41124-1
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13 Jan 2020
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978-90-04-41123-4
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01 Nov 2019
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Catherine Harwood, Ph.D. (2018), Leiden University, is Associate Legal Officer at the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations. She has published several works on fact-finding and transitional justice.
Foreword
Andrew Clapham Acknowledgements
List of Abbreviations

Introduction
 1 The Phenonemon of Atrocity-Related Inquiry
 2 Delineation of UN Atrocity-Related Inquiry
  2.1 International Commissions of Inquiry
  2.2 Established by the United Nations
  2.3 Focus on Situations of Atrocities
 3 Structure of the Book
 4 Some Words on Methodology

1 Charting the Rise of UN Atrocity-Related Inquiry
Introduction
 1 Interstate Atrocity-Related Inquiries
  1.1 1919 Commission
  1.2 Inter-Allied Commissions of Inquiry
  1.3 United Nations War Crimes Commission
 2 ‘Geneva’ International Humanitarian Law Inquiry
 3 Atrocity-Related Inquiries by International Organisations Other than the UN
  3.1 League of Nations
  3.2 Regional Organisations
 4 UN Atrocity-Related Inquiries
  4.1 Sparse Atrocity-Related Inquiry Practice: 1945–1991
  4.2 Proliferation of UN Atrocity-Related Inquiries: 1992 and Beyond
 Conclusions

2 Establishing the Mandate: Mandating Authorities as Architects of Atrocity-Related Inquiries
 Introduction
 1 Dynamics of Establishment
  1.1 Institutional Framework Relevant to UN Atrocity-Related Inquiries
  1.2 State Consent and Cooperation
  1.3 Selection of Situations
  1.4 New York/Geneva Dynamics
 2 Legal Dimensions of Written Mandates
  2.1 Investigative Focus and Recommendations
  2.2 Legal Lenses of Analysis
  2.3 Challenges to Legal Lenses of hrc-Led Inquiries
 3 Impartiality of Written Mandates
  3.1 Geographic Parameters
  3.2 Temporal Scope
  3.3 Actors under Scrutiny
  3.4 Prejudgment of Findings
 4 Appointment and Composition of Commissions
  4.1 Appointment Processes
  4.2 Commissioner Independence and Impartiality
  4.3 Commissioner Expertise
 5 Decisions on Operational Aspects
  5.1 Scope of Discretion Accorded to Commissions
  5.2 Provision of Resources and Time Limits
 6 Principle and Pragmatism in Mandating Authorities’ Choices
  6.1 Turn to International Law
  6.2 Inquiry to Condemn Atrocities
  6.3 Inquiry as Building and Releasing Pressure
 Conclusions

3 Mandate Interpretation and Implementation: Commissions as Engineers of Their Roles and Functions
 Introduction
 1 Interpretation of the Mandate
  1.1 Geographic Parameters
  1.2 Temporal Scope
  1.3 Actors under Scrutiny
  1.4 Prejudgment of Findings
 2 Principles Guiding Mandate Implementation
  2.1 Impartiality
  2.2 Centrality of Victims
  2.3 Accountability
 3 Practical Challenges Informing Mandate Implementation
  3.1 Resource and Time Limitations
  3.2 Security Concerns
  3.3 Lack of Territorial Access
  3.4 States’ Refusals to Provide Information
 4 Fostering Quality in Methods of Work
  4.1 Judicial Procedures
  4.2 Rules of Procedure and Terms of Reference
  4.3 Standards of Proof
  4.4 Best Practices
 Conclusions

4 Identification of the Applicable Legal Framework
 Introduction
 1 Identification of Legal Dimensions of the Mandate
  1.1 Inclusion of Legal Dimensions in Factual Mandates
  1.2 Conservative Interpretations of Legal Lenses
  1.3 Broad Interpretations of Legal Lenses
  1.4 Discussion
 2 Applicability of International Human Rights Law
  2.1 Applicability of Human Rights Treaties
  2.2 Territorial Scope of Applicability
  2.3 Applicability in Situations of Armed Conflict
  2.4 Applicability to Organised Armed Groups
 3 Applicability of International Humanitarian Law
  3.1 Legal Classifications of Armed Conflict
  3.2 Applicability to Organised Armed Groups
  3.3 Applicability to Peace-Enforcement Missions
  3.4 Discussion
 4 Applicability of International Criminal Law
 Conclusions

5 Law-Application in the Inquiry Context
 Introduction
 1 Violations of Economic, Social and Cultural Rights
 2 Violations Arising from Lethal Attacks in Armed Conflict
  2.1 Right to Life in Armed Conflict
  2.2 Assessment of Lethal Attacks under ihl
  2.3 Fact-Finding Challenges and Strategies
 3 Violations Involving Sexual and Gender-Based Violence
  3.1 Recognition of Violations and Victims
  3.2 Assessment of Violations
 4 Genocide
  4.1 Protected Groups
  4.2 Dolus Specialis
  4.3 Genocidal Policy or Pattern of Conduct
  4.4 Caution in Making Findings of Genocide
 5 Crimes against Humanity
  5.1 Interpretation of Contextual Elements
  5.2 Assessment of Crimes against Humanity
 6 Cross-Cutting Analysis
  6.1 Focus on Incident-Based Violations
  6.2 Level of Certainty of Findings of Violations
  6.3 Rigour of Legal Analysis
 Conclusions

6 Translating Violations to Responsibility Regimes in an ‘Era of Accountability’
 Introduction
 1 Dimensions of Accountability
 2 Responsibility under International Law
  2.1 State Responsibility
  2.2 Responsibility of International Organisations
  2.3 Responsibility of Collective Non-State Actors
  2.4 Individual Responsibility
  2.5 Concluding Observations
 3 Accountability Recommendations
  3.1 Prosecutions of International Crimes
  3.2 Restitution and Compensation
  3.3 Truth-Seeking Measures
  3.4 Other Measures of Satisfaction
  3.5 Guarantees of Non-Repetition
  3.6 Concluding Observations
 4 Accountability Roles and Functions
  4.1 Legal Accountability
  4.2 Moral Accountability
  4.3 Political Accountability and Accountability Politics
 Conclusions

Conclusions
 1 Summary of Findings
 2 Reflections on Roles and Functions of Contemporary Inquiry
 3 Back to the Future

Appendix: United Nations Atrocity-Related Inquiries 1945–2018
Bibliography
Index
Scholars of public international law and the practice of international organizations, fact-finding practitioners, and all those interested in efforts to ensure accountability for mass atrocities
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