The UN has established many international commissions of inquiry (‘commissions’) to investigate alleged violations of international law, determine responsibilities and recommend measures to ensure accountability. Lacking binding powers, these commissions rely on the cooperation of states and individuals to obtain information, and their findings and recommendations may or may not be acted upon.
Though non-judicial mechanisms, commissions interact with legal norms and judicial institutions. Many commissions use judicial language throughout their reports, such as identifying ‘applicable law’ and making ‘findings’ of violations. Commissions may foster political will for international prosecutions, such as the International Commission of Inquiry for Darfur whose report prompted the Security Council to refer the situation in Sudan to the Prosecutor of the International Criminal Court (ICC). Commissions’ reports have been cited in states’ self-referrals as well as in judgments of that Court. Moreover, commissions’ characterisations of atrocities as violations of international criminal law (ICL), coupled with the norm that states have a duty to prosecute international crimes, may raise expectations that where a commission makes findings of international crimes, prosecutions will follow.
Commissions’ reports engaging with international law may also reflect political realities. To illustrate, reports of the Independent International Commission of Inquiry on Syria vary in respect of findings and recommendations involving ICL institutions, which may indicate tensions between the goals of ending hostilities and ensuring accountability. Since its inception in 2011, the Commission has issued five main reports. In its first report, it found that its mandate was limited to determining responsibilities for human rights violations, though its mandate also referred to crimes against humanity. In subsequent reports, the Commission made findings of crimes against humanity and war crimes, along with recommendations of varying strength in respect of ensuring accountability for those crimes. In its third report, the Commission obliquely recommended that the Security Council take “appropriate action”, whereas in its fourth report, it called on the Council to “commit to human rights and the rule of law by means of referral to justice, possibly to the [ICC]”. In its most recent report, it retreated slightly, recommending for the Council to ensure accountability, “including possible referral to international justice”. The Commission also acknowledged the fundamental link between the goals of peace and justice, noting that while diplomatic discussions “may signify a significant step towards breaking the impasse in Syria, the imperative to stop the violence cannot obscure the reality that there can be no enduring peace without justice.”
As the Syrian conflict has escalated during the Commission’s lifetime, one might have expected its calls for accountability to grow louder and more concrete as time has gone on. However, the Commission has evidenced fluctuating support for an ICC referral and continues to press for a negotiated political settlement. Its attitude may indicate that events which might otherwise impair peace efforts should be delayed until after regime change, such as key Government officials being named in ICC arrest warrants. It would be wise to avoid recreating the frankly dismal situation regarding the non-enforcement of ICC arrest warrants for Sudanese President Al-Bashir. The extent to which any commission should concern itself with the politics of regime change is debatable, but at least in this case, the UN High Commissioner for Human Rights has been calling on the Security Council to refer Syria to the ICC for the past two years (see here and here). In these circumstances, the Commission’s restraint may seem like closing the stable door after the horse has bolted. Nevertheless, the Commission has signaled that in principle, the ICC is the appropriate institution to ensure accountability in Syria, so that its reports may rather indicate its view of appropriate sequencing of events: first ceasefire, then accountability. The Syria Commission may be perceived as a go-between of international politics and international criminal law, attempting to broker a good deal for both peace and justice.