An Inquiry into the Role of Commissions of Inquiry in International Law: Navigating the Tensions between Fact-Finding and Application of International Law

Abstract

Ever since it was created in 2006, the Human Rights Council has established a significant number of commissions of inquiry. Other than their historic counterparts, the mandates of these commissions have not been fact-oriented but have had a strong legal dimension. In this context, questions arise whether the commissions are primarily acting as fact-finders or rather as de facto law-applying authorities. Are they supposed to function as self-standing institutional arrangements, or should they rather operate at the service of other mechanisms? The overarching and more generic question is: what is the primary function of human rights commissions of inquiry as established by the Human Rights Council and to what extent is the invocation of international law instrumental in fulfilling that function? This paper examines commissions of inquiry through a historical-comparative approach and demonstrates that contemporary human rights commissions of inquiry have fundamentally different purposes. Where the original Hague-inquiries were predominantly transactional in character, the human rights inquiries rather have alerting and authoritative aspirations.