Fact-Finding in Situations of Atrocities: In Search of Legitimacy


While international inquiries have long been used by states and international organisations to address situations of human rights violations, it is only since the turn of the millennium that they have increasingly become the focus of academic reflection. Harwood’s book is unique in that it represents the first effort at systematically surveying and systematising the practice of atrocity-related UN inquiries. In this essay, building on both the arguments set out in the book and other relevant scholarship, I propose three lenses to read through Harwood’s meticulous review of the practice of UN inquiries: legitimacy, juridification, and roles and functions. While Harwood makes a largely critical-descriptive argument that positions atrocity-related UN inquiries in the liminal space between principle and pragmatism, I contend that any discussion about the roles and functions of international inquiries should be informed by a reflection on their legitimacy.

3 her book. 6 Harwood focuses, in particular, on what she defines 'atrocity-related United Nations commissions of inquiry' and she counts sixteen such bodies set up by the UN since 1945, while a UN Research Guide lists seventy-six international commissions of inquiry or fact-finding missions established by the UN since 1963.7 This discrepancy is justified by Harwood's delimitation of the scope of the book, which defines UN-mandated inquiries into situations of atrocities as impartial and independent ad hoc fact-finding mechanisms established by the UN to investigate situations which are governed by international human rights law, international humanitarian law or international criminal law, and whose final report is not binding.8 By contrast, the long list of investigative mechanisms included in the UN Research Guide, which for example includes mechanisms that are tasked to investigate individual incidents or are deployed and staffed by the UN Secretariat and therefore lack independence as conceptualised by the author, demonstrates that there is little uniformity both in the common substantive and procedural features that characterise these mechanisms and in their nomenclature.
While existing scholarly works have focused on discrete aspects of international inquiries,9 Harwood's book comprehensively and systematically X-rays the life of UN inquiries from their establishment to the formulation of their conclusions and recommendations through their interpretation and application of international human rights, humanitarian and criminal law. The practice of atrocity-related UN inquiries is so wide-ranging that it makes this exercise almost a feat and it reveals one of the main characteristics of UN inquiries: their flexibility.
After a historical overview of the practice of establishing atrocity-related inquiries that makes reference to even two almost forgotten -at least in anglophone academic legal scholarship -Inter-Allied Commissions of Inquiry on Occupied Serbia and into the Greek Occupation of Smyrna and adjoining Territories following wwi, 10   characterise the life of atrocity-related UN inquiries. The book demonstrates the intrinsic ambiguity of inquiry exercises by the UN, which is signalled by the author herself by reference to binomials such as principle and pragmatism, advocacy and adjudication, and law and politics.
In this essay, I seek to critically read some of what I consider to be the key points of Harwood's review and analysis of the practice of atrocity-related UN inquiries. I organise my reflections in three broad themes, which recurs throughout the Harwood's book: legitimacy, juridification and roles and functions.

Legitimacy
The tension between principle and pragmatism, advocacy and adjudication, and international law and politics emerges early on in the life of UN tasks, flexibility and ad hoc-kery inevitably clash with the stability that procedural fairness seems to imply. This tension is compounded by the contextual need for international law to elicit voluntary compliance in the absence of strong enforcement mechanisms, which is all the more relevant in the context of UN inquiries because the full deployment of their investigative power depends on the cooperation of the states on whose territory have the events under investigation occurred. Allegations of bias against and non-cooperation with Human Rights Council inquiry mandates by dint of the supposed politicisation of the Council's selectivity17 exemplify the impact of a lack of clear and transparent selection criteria on the legitimacy of the inquiries -although there is no doubt that some allegations of bias, partiality and pre-judgment are motivated by opportunistic reasons.
Harwood highlights how a consensual approach in the establishment of UN inquiries, especially by the UN Secretary General and Security Council, has generally prevented accusations of politicisation, but she also notes that this has not always guaranteed cooperation.18 Legitimacy concerns are not limited to the selection of situations to be investigated but extend to the formulation of inquiry mandates. In particular, Harwood lingers on the possible justifications for the Human Rights Council's competence to confer mandates that trespass on fields of international law that are not strictly speaking within the remit of the Council itself, including for example international humanitarian law and international criminal law.19 Whether such broad competence may be more easily justified in light of the combination of the principles of implied powers and of conferral, a broad interpretation of the rights to the truth and to a remedy or the practice of the Human Rights Council and the General Assembly in light of states' acquiescence or objection, Harwood's empirical observation is that very few states have in fact objected to the inclusion of international humanitarian law or international criminal law in the mandates of Human Rights Council-mandated inquiries.
Conversely, what has attracted allegations of partiality are the wording of the inquiry mandates and the profile of the commissioners. As for the wording 6 of the mandates, Harwood notes that inquiries dispatched to investigate situations of armed conflicts in particular warrant a certain degree of political awareness, which Human Rights Council mandates often lack.20 One of the most cited examples of a politically insensitive mandate is that of the infamous Goldstone Commission, which originally provided for the investigation of violations 'by the occupying Power, Israel, against the Palestinian people' and that was unsurprisingly rejected as biased and partial.21 While the mandate was subsequently de facto amended so as to include also violations perpetrated by Palestinians upon commissioner Richard Goldstone's acceptance of his appointment on condition that the mandate of the commission would be amended,22 the question is whether such political blindness could ever be repaired in the eyes of the Israeli government. Or, to put it more bluntly, whether such amendment of the mandate could ever avoid any opportunistic criticism or obstruction of the inquiry by Israel. While commissioners are meant to act impartially and independently23 and, hence, identification of the commissioners with the mandating body should be avoided, it would be naïve to believe that a state with such a troubled relation with the Council24 would give up on the opportunity to delegitimise an inquiry likely to at the very least question the legality of the state's conduct on the battlefield.
Harwood further lingers on the interesting issue of the commissioners' prior statements. How should prior statements that reveal a potential bias of the commissioners in relation to a given set of events be treated? Would these be a reason for the disqualification of commissioners from the inquiry? While acknowledging that professional expertise may not necessarily be sufficient to identify the best candidates for the position of commissioners, Harwood also posits that there may be need for greater tolerance with respect to the commissioners' prior statements in light of both the fact that it is difficult to anticipate when a commission of inquiry may be established and for what purposes, and that the required expertise may be of greater importance than certain prior statements.25 She notes, though, that recent Human Rights Council practice suggests an increasing responsiveness of the Council 'to apprehensions of bias from commissioners' prior statements' .26 The issue of prior statements must be contextualised within the specific microcosm of UN inquiries. It may be argued that members of temporary investigative bodies that need to permanently reassess and reassert their legitimacy should, precisely for this reason, be held to similar or even higher standards than, say, judges that serve on judicial bodies whose legitimacy rests on more solid and discernible foundations, be it a Security Council resolution or an international treaty.27 If legitimacy is to be understood as the acceptance of the authority of a given institution or mechanism by the relevant constituencies,28 then all goodfaith efforts should be made to secure the acceptance of the authority and legitimacy of commissions of inquiry by the party whose conduct is to be investigated. Similarly to the negotiations that lead to the adoption of a new international legal instrument such as a treaty, this would likely ensure a more solid foundation for commissions of inquiry and maximise the opportunities for cooperation between the commission itself and the domestic authorities of the country where the inquiry is to take place. Moreover, part of the problem could probably be addressed by instituting a roster of experts eligible for appointment to UN inquiries, which would render the appointment process more transparent, as Harwood argues.29 Individuals included in a roster of experts may be required to abide by specific codes of conduct and to disclose any past activity that may raise doubts about their impartiality in advance to any appointment, thus making the vetting process carried out by the Council more transparent.30 25  Throughout her book, Harwood notes that modern inquiries into situations of atrocities are characterised by the 'juridification' of their mandates. She rightly posits that 'a juridified investigative focus hones in on facts capable of being characterised as legal violations' .31 While this turn to international law can be empirically observed in the increasingly legal mandates that parent bodies confer on commissions of inquiry32 and is compounded by the ever-more sophisticated and technical interpretation and application of the law by mandate-holders,33 it also begs the question as to whether the emphasis on law interpretation and application by commissions of inquiry is warranted.
In turn, this bears on the expertise of the individuals that are appointed as commissioners and on the role and functions of atrocity-related inquiries. These observations are underpinned by the tension between law and politics identified at the beginning of this essay. Are atrocity-related inquiries to be understood as legal, quasi-judicial mechanisms? Or should they be more concerned with elucidating the facts and circumstances of a given set of events? Or are they diplomatic tools that should assist in defusing situations of conflict or systematic human rights violations?
While empirical evidence suggests that atrocity-related inquiries are used as part of the UN legal accountability toolkit at least when the inquiry is established by human rights-mandated institutions, a difference in practice seems to persist if we consider separately the UN Human Rights Council and other organs of the UN. While the former invariably establishes inquiries with a clear legal mandate, the UN Secretary-General, for example, has dispatched inquiries with a less 'juridified' mandate. the Gaza flotilla incident. The Commission's interpretation of its mandate is particularly revealing of their approach to the law: Too much legal analysis threatens to produce political paralysis. Whether what occurred here was legally defensible is important but in diplomatic terms it is not dispositive of what has become an important irritant not only in the relationship between two important nations but also in the Middle East generally.35 Legal framing in international inquiry processes can indeed generate cognitive and emotional bias and, therefore, polarisation, at least according to Shiri Krebs.36 She argues that the emphasis on 'legal truth' may trump efforts to clarify what happened.
If factual accuracy should be prioritised over legal truth, then one may also question the assumption -noted by Harwood37 -that atrocity-related inquiries should be staffed by legal experts. Harwood herself notes, for example, that naval officers have served on inquiries into maritime incidents before. The Goldstone Commission included among its members former Irish Army Colonel Desmond Travers. Profiles of the sort may be better suited to provide inquiry panels with more practical expertise and experience, and they may also better elicit trust by state authorities. presences. The different professional backgrounds of the members of the Board were praised by the then-head of the International Law Department of the Israeli Defence Forces, who argued that 'deep, hands-on familiarity with war-like situations and the shifting challenges emerging from the nature of war helped to create a better and more accurate understanding of military activity' .38 While this assessment should not be taken at face value, given that Israel was one of the investigated parties and arguably had an interest in an outcome that favoured its military, neither it should be deemed completely devoid of logic. Commissioners who are familiar with the reality of the battlefield, the conduct of law enforcement operations or who have technical experience in relation to specific aspects of the use of force -for example, weapons or medical expertise -may be better suited to assess the available evidence to establish the facts and circumstances of a given event, which in turn may elicit the trust of domestic authorities.
An additional area that would deserve some exploration, and that is not discussed in the book, is to what extent criteria of professionalism, impartiality, independence and thematic expertise are applied in the recruitment of support staff to inquiry commissions, and how their work informs the final output of the inquiry process.
The 'juridification' of atrocity-related inquiries, especially in the context of investigations into situations of armed conflict, may contribute to eroding their legitimacy. Harwood demonstrates how, both in the interpretation of their mandates and in the application of the law, UN inquiries have tended to adopt an expansive understanding of the reach of international human rights law. For example, Harwood shows that commissions have tended to deem non-state armed groups bound by certain customary human rights obligations under specific sets of circumstances, namely the exercise of government-like functions by the armed group under scrutiny.39 In a similar spirit, she notes that while, generally speaking, UN inquiries have interpreted the relationship between international humanitarian law and international human rights law consistently with the position of human rights bodies and the International Committee of the Red Cross (icrc) by deeming the two bodies of law complementary and mutually applicable, some commissions have gone a step further by, for example, affirming that international human rights law may limit the use of lethal force in situations of armed conflict.40 This 'humanisation' of international humanitarian law -notes Harwood -is contested by some scholars who are concerned that the detachment between law and conditions of warfare may decrease trust in the law by belligerent parties and even be conducive to decreased compliance.41 Moreover, it may harm the legitimacy of international inquiries, which may be seen as trespassing norm entrepreneurship in defiance of their mandates.42 For those commissions that are established by the UN Human Rights Council, this risk may be further compounded by the fact that, by setting up inquiries tasked with investigating alleged violations of international humanitarian law or even international criminal law, the parent body would arguably be overstepping the boundaries of its mandate. It may thus be questioned whether the Council is the most suitable UN body for the establishment of inquiries with such broad mandates. Be as it may, most atrocity-related UN inquiries have in fact been established by the Council. Harwood argues that this may be justified in light of the political dynamics between New York-based UN institutions and Geneva-based UN institutions. In particular, she argues that the division of labour between the two sets of institutions may not necessarily need to be comprehensively defined, because some flexibility may allow institutions to respond strategically to the different situations.43 Whether this is an accurate and comprehensive explanation of the role of the Human Rights Council in the deployment of international commissions of inquiry may need further research.

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Roles and Functions they lean more towards an advocacy role.44 At the same time, though, a more rigorous, conservative, or even legalistic, approach to the interpretation of international legal norms 'may render a report less vulnerable to political challenge' .45 This cautious approach -notes Harwood -was adopted by most inquiries when interpreting the elements of international crimes.46 The former, more progressive approach to norm interpretation positions inquiries among norm entrepreneurs and, if we understand inquiry reports as sources of international law within the meaning of Article 38(1) of the Statute of the International Court of Justice, it would not be so far-fetched to understand them as exerting a normative authority in moving forward the frontiers of international law.47 If, however, we understand international inquiries as participating in the international law epistemic community, then their role seems to be more closely resembling that of an adjudicator, whose legitimacy rests on its ability to 'adhere to the disciplining rules of the interpretive community, including principles of legal interpretation' .48 However, both of these approaches -the advocative one more so than the adjudicatory one -seem to overlook the factual dimension of inquiry mandates. 'What happened?' seems to be the central question to most inquiry mandates, whether they explicitly mention the relevant legal lenses or not. Harwood hints at the problem of truth-finding.49 What is interesting -and perhaps not so surprising -in particular about the literature she references is that many of the authors -including Laurie Blank, Liesbeth Zegveld and Shiri Krebs -have discussed, in either the specific publications referenced in the book or elsewhere, the application of legal standards by international commissions of inquiry in the very specific Israeli-Palestinian context.50 In this specific contextual background, arguments about the legal qualifications of the facts are the object of sustained contestation by the parties involved. Harwood concludes her book with a look to the future and the potential that commissions of inquiry carry in relation to 'information concerning situations of atrocities … increasingly acquired and shared through informal networks and communities' .57 She acknowledges further that commissions of inquiry may revert to focusing on 'the essential task of finding facts' ,58 which may prove particularly important to counter the rise of 'fake news' and 'post-truth' politics.59 Indeed, the publicity of inquiry findings and recommendations points in the direction of a vaguer notion of accountability than the typology identified by Ted Piccone and relied upon for classification purposes by Harwood,60 which could perhaps be described with the term 'public accountability' borrowed from management studies. Drawing on Harwood's book and detailed review of the practices of atrocity-related UN inquiries, I have made two main arguments in this essay. First, I have argued that the roles and functions, and the legitimacy of international commissions of inquiry are two faces of the same coin. The flexibility of inquiry commissions -to which Harwood refers to as a factor that will determine their survival in the face of the rising of new international investigation mechanisms61 -implies that their roles and functions may be shaped by the mandating authority depending on the context in which they are dispatched. But this also means that determining what the roles and functions of atrocity-related inquiries should be in a given context should be informed by a strategy to enhance their legitimacy, so that they may discharge these roles and functions in optimal conditions. Second, I have argued that the 'juridification' of mandates and recourse to legal analysis by commissions of inquiry may hinder this quest for legitimacy by polarising the investigated parties, and, at the same time, leave fundamental factual questions unanswered or answered ambiguously, thus providing detractors of international inquiries with arguments to rebut the inquiry findings and recommendations. 57